RE HABEAS CORPUS AD SUBJICIENDUM

1991, No. MP 2393

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. At the commencement of these proceedings Mr. Bruce for the Commissioner of Correctional Services raised a preliminary issue. He submitted that the present application was an abuse of process having regard to the previous applications made by the applicant.

2. In MP 1113 of 1990, the applicant had called in question the substantive grounds of the crimes it is alleged that he committed. The matter was duly. considered by the court and the application was dismissed. This was the subject of an appeal which in turn was also dismissed.

3. In MP 1228 of 1991, a second application for habeas corpus was taken out by the applicant. This application was based on the ground that Mr. Andree Wiltens, the magistrate who issued the committal warrant had not been properly appointed a permanent magistrate. Bokhary, J. declined to grant leave for the application to proceed.

4. Mr. Bruce accepted that he could not simply place reliance upon the doctrine of res judicata. It was necessary for him to go beyond this. He referred me to the case of Ex parte Tarling 1979 1 WLR 1417. Gibson, J. (as he then was) propounded the principals which had to be considered when a second application for habeas corpus is made in respect of the same detention. He said at page 1421:-

" The making of a second or successive application for habeas corpus is now controlled by the provisions of section 14(2) of the Administration of Justice Act 1960 which provides:

"Notwithstanding anything in any enactment or rule of law, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made by or in respect of that person on the same grounds, whether to the same court or judge or to any other court or judge, unless fresh evidence is adduced in support of the application;...

It was accordingly an essential part of the applicant's application to the court to show that this, his second application, was not made "on the same grounds" as those upon which his first application was put forward, and, if he could not show that, to show that on this application he has adduced fresh evidence in support of it."

and then Gibson, J. went on to say

" Before dealing with the questions of jurisdiction it is to be noted that, upon two important principles, which bear upon the position of an applicant for habeas corpus who seeks to make a second application in respect of the same detention, there was no substantial dispute between the parties in this case.

First, it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court.

The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus: we refer to the words of Lord Parker C.J. delivering the judgment of the court in In re Hastings (No. 2) [1959] 1 Q.B. 358, 371. There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings: see the judgment of the Privy Council, Lord Morris, Lord Cross and Lord Kilbrandon, in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975) A.C. 581. In our judgment, that principle is applicable to proceedings for habeas corpus, whether under the Act of 1967 or under the general jurisdiction of the court, although, no doubt, the stringency of the application of the principle may be different in cases concerning the liberty of the subject from that in cases concerning such matters as disputes upon property."

5. It is noted in this connection that section 14(2) of the Administration of Justice Act 1960 is in similar form to our section 23 of the Supreme Court Ordinance, Cap. 4.

6. I have no doubt that the issue which the applicant is now seeking to raise was at all times open to the applicant and no satisfactory explanation has been forthcoming to justify it not having been raised in one of the earlier applications.

7. Mr. Llewellyn for the applicant endeavoured to argue that the latest issue was a fresh point which had not in reality been open to him to raise on the earlier occasions. He also attempted to derive some assistance from the numerous applications which had been made by Mr. Osman in respect of his attempts to resist extradiction from the United Kingdom to Hong Kong. I agree with Mr. Bruce that none of this really helps the applicant here as the various applications made by Mr. Osman have dealt with different situations which have arisen as a consequence of a number of different factors.

8. I am satisfied that the principals which were referred to by Gibson, J. in Ex parte Tarling are the correct ones governing successive applications for Writs of Habeas Corpus and that the applicant clearly could and should have raised the issue in these proceedings in one of the earlier applications.

9. For this reason, I would accede to Mr. Bruce's submission that this application should be dismissed as it constitutes an abuse of the process of the court.

10. I will hear the parties on costs.