SHUM CHIU v. SECRETARY FOR JUSTICE

HCAL 30/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 30 OF 2009

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J U D G M E N T

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1. This application is yet another in a series of collateral proceedings which have arisen from a criminal trial in the District Court.  The case number allocated to that trial is DCCC 687/2004.  That, alone, gives a clear indication of the age of the proceedings.  What it does not indicate is that the offences alleged, as against the applicant, or proven, as against his former co-accused, occurred in the period between May and August 1999. The applicant has yet to plead to and be tried on the charges against him, let alone convicted of any of them. 

2. He wishes, however, to be able to participate in the hearing of an appeal by his former co-accused who have already been tried, convicted and sentenced. In order to achieve that objective, he now seeks leave to judicially review a decision by His Honour Judge Andrew Chan refusing to state a question for the Court of Appeal pursuant to the provisions of s. 81 of the Criminal Procedure Ordinance, Cap. 221. 

THE HISTORY

3. This situation arose in uncommon circumstances.  The applicant and three others were charged, in different combinations, with a number of offences, namely two conspiracies to offer advantages to public servants and two conspiracies to falsify documents required for an accounting purpose.  After the proceedings were transferred for trial in the District Court they jointly made an application for a permanent stay of those proceedings.  That application was made to and granted by the then trial judge, Deputy Judge Livesey, in July 2005.  In December 2005 a judicial review of that decision was allowed (Hartmann J in HCAL 101/2005), the proceedings before the deputy judge being set aside on the basis of a failure in procedure.  A year later, in December 2006, an appeal against the judicial review was dismissed by the Court of Appeal (Ma, CJHC, Stuart-Moore VP and Stock JA in CACV 50, 51 & 52/2006).  An attempt was then made to have that decision heard by the Court of Final Appeal but its Appellate Committee refused leave (Li CJ, Chan and Ribeiro PJJ in FAMC 5, 6, 42 & 43/2007).

4. The matter then returned to the District Court whereupon eventually Judge Chan became seized of it.  On 27 June 2008 he refused a further application for stay made by the applicant and his co-accused based, it seems, upon the same arguments as were before Deputy Judge Livesey and indicated that he would give his reasons for doing so at the conclusion of the trial - a course which was properly open to him.  For the sake of completeness is worth noting that on 30 June 2008 an application was made, also unsuccessfully, for the judge to recuse himself.

5. Before it was possible to commence the trial the applicant was taken ill.  The proceedings were adjourned to enable enquiries to be made as to his fitness to stand trial.  On 18 August 2008, with the benefit of medical evidence as to the applicant’s state of health before him, the judge severed the trial of the applicant from that of his co-accused.  This was over some objection from the co-accused who contended that all of them should be tried together and that the proceedings should be adjourned until the applicant was once again fit. The judge ordered that the trial against the co-accused proceed whilst that against the applicant be fixed for hearing at a later date. 

6. The trial of the co-accused proceeded.  The judge, on 4 December 2008, provided reasons for his refusal to grant the application for stay and, on 5 December 2008, convicted the co-accused and delivered his Reasons for Verdict.  The reasons relating to the stay application obtained equally to the applicant (§263 of the ruling). The co-accused have given notice of their intention to appeal the conviction at which, unsurprisingly, it is intended to call into question the judge's refusal to stay the proceedings. 

7. The applicant’s trial has been set down for hearing on 22 June 2009.  The applicant has yet to enter a plea to the charges he faces.  The appeal by the co-accused has not yet been set down for hearing: although expedited dates were offered for July or August 2009, no hearing dates were allocated because of the foreshadowed application to Judge Chan to state a case.   

THE s.81 APPLICATION

8. On 20 February 2009 the applicant made application to the judge to state a case as to the correctness of his decision refusing the application for permanent stay insofar as he is concerned.  The applicant contended that if the judge followed this course he, the applicant, would be able to have that case stated listed so as to be heard contemporaneously with the appeals of his co-accused, there being a common issue. Although he accepted that he had the jurisdiction to make such an order, the judge declined to do so expressing “…the opinion that this case falls well short of being an exceptional one.”

9. The judge recognized that on the authority of R v SIN Yau Ming [1992] HKCLR 127 and In Re A Judge’s Reservation and In Re Attorney Generals Reference (Attorney General’s Reference No. 1 of 1994) [1994] 2 HKCLR 41 the procedure provided by that section should only be resorted to in the most exceptional cases.  The judge set out, and no issue is taken with this, a fair synopsis of the principles to be derived from those two decisions.  He went on to note that if he granted the application an inevitable result would be a delay of the applicant's trial.  He also noted that given the age of the proceedings a consideration was the fact that the primary witness had been in a witness protection scheme since 2002.

10. The judge then concluded:

"Having considered submissions made on behalf of the [applicant], I am of the opinion that the present application falls well short of being an exceptional one.  There are proper channels open to the [applicant] if he feels aggrieved by my decision.  As such, his application under section 81 of the Criminal Procedure Ordinance is refused."

THE APPLICATION FOR LEAVE 

11. It is now settled that the test to be applied in deciding whether to grant leave to judicially review a decision is that the applicant must show a reasonably arguable case, one which enjoys realistic prospects of success. (PO Fun Chan v Winnie Cheung [2008] 1 HKLRD 319).

12. Whether or not to grant an application under s. 81 is clearly within the discretion of the judge to whom such an application is made.  In my judgment, the judge had clearly indicated that he declined to exercise his discretion in favour of the applicant on the basis that he was not satisfied that the facts of this matter, with which he was fully familiar and despite having had the benefit of written submissions as well as hearing full oral argument, justified a finding that the circumstances were wholly exceptional.

13. The  real complaint made by the applicant in these proceedings is not that the judge’s exercise of his discretion is tainted by illogicality, irrationality or procedural impropriety but effectively that the judge erred in not finding the existence of exceptional circumstances.

14. Dissatisfaction with a decision is not a sufficient ground to sustain an application for judicial review. 

EXISTENCE OF AN ALTERNATIVE REMEDY

15. In order to counter the submission by Mr Zervos, SC, who appears on behalf of the respondent, that the application should not be granted due to the existence of an alternative remedy available to the applicant, Mr Macrae, SC, who appears on behalf of the applicant today as he has done over the years throughout these protracted proceedings, invited my attention to the decision of Godfrey JA in Nam Pei (Holdings) Ltd v The Stock Exchange of Hong Kong Ltd [1998] 2 HKLRD 910 where he said:

"... there is no reason in principle why an applicant otherwise entitled to a judicial review should be denied relief simply because he has an alternative remedy which he has not exhausted.  I quite see that there may be good reasons for this in practice; judicial review is a discretionary remedy, and applicants should be encouraged to use the court as a last resort, not a first resort.  So, in practice, the court does require the applicant for judicial review who has not exhausted all his available remedies to show some special or exceptional circumstances why the court should, nevertheless, assist him.

In my judgment, it should be enough for a court to ask itself the same question, or the same sort of question, in these circumstances as it asks itself when considering whether or not to grant or refuse an application for an interlocutory junction.  Do the interests of justice require the court to intervene in this dispute at this stage?”

16. Mr Macrae submits, as he did before the judge, that if the co-accused’s appeal is allowed to proceed in the absence of the applicant and the decision of the Court of Appeal is adverse to the applicant’s interests then even if, in theory, the applicant could later argue the correctness of the judge's decision afresh, the reality of the situation is that he will face an almost impossible task; to allow the applicant to participate in the co-accused’s appeal would allow him to be fully heard and his arguments to be considered by the Court of Appeal; the interests of justice require that this course be followed; the judge's failure to deal specifically with this issue in his reasons for declining to exercise his discretion in favour of the applicant render his decision fatally flawed.

17. Without wishing to oversimplify the applicant’s present argument, it is, in truth, that he wishes to participate in the appeal proceedings to attack the judge's decision refusing the application for stay; not having been convicted of any offence, he lacks the necessary locus standi to be heard; and his position or rights will be prejudiced, it will be unfair or there will be a failure of justice if the appeal is heard in his absence. 

18. It seems to me important to keep in mind the fact that the applicant has yet to face trial.  He is presumed innocent.  The effect of that presumption would be to render his participation in the co-accused's appeal proceedings entirely hypothetical: for him to add his voice to that appeal will only burden those proceedings further.

19. If the appeal proceedings are resolved in favour of his co-accused and it is found that the judge erred in refusing the application for permanent stay, then, whether or not the applicant has been heard in those appeal proceedings, that decision of the Court of Appeal would accrue to his benefit either by way of the proceedings against him, pragmatically, being abandoned or by affording him the opportunity of invoking a further application for a permanent stay of the proceedings pending against him. 

20. If at the conclusion of his trial the applicant is convicted of some or all of the offences it will remain open to him to argue on appeal against the correctness of not only his conviction but also the judge's decision to refuse the application for permanent stay.  It makes no difference whether, as has been submitted and seems probable, the trial against him is heard by a judge other than Judge Chan: the applicant would retain the right to appeal against any of the orders made during the course of the proceedings against him before the District Court whether or not those orders were made by the same or different judges.

21. It is self-evident that, if the applicant is not before the Court of Appeal when the co-accused’s appeals are heard, that court’s decision will not relate to his application but only those of his co-accused: as previously stated, if he is convicted after his trial he will still be able to appeal the refusal of the stay application.

22.  Mr Macrae realistically accepts this to be the position but contends that, by that stage, the existence of a judgment of the Court of Appeal dismissing the appeals by the co-accused would render it difficult, almost to the point of impossibility, for the applicant to successfully argue against the judge's decision: because of the identity of interests, if their appeal is unsuccessful it will render success in any appeal the applicant may subsequently launch extremely difficult.

23. I do not accept the contention of the almost inevitability of failure of his appeal in those circumstances but, even if there be a measure of force in the argument, it is simply a fact that courts  are frequently called upon to make decisions which affect the interests of persons who have not appeared before them - even of persons involved in ongoing litigation at the time. It is the way our system works. If anyone who has a contingent interest - and the applicant’s interest is contingent upon his conviction - were to be permitted to join in proceedings, especially appellate proceedings, the outcome of which may affect him the system would become unworkable.

24. It was suggested that the judge’s refusal of the s. 81 application means that the applicant will be deprived of the right to be heard at his own appeal. With respect, it does not. He still has the right to be heard at his own appeal, should one be necessary: it means, simply, that he has not been afforded an additional right to be heard at the appeal of others.

25. I do not find there to be special or exceptional circumstances why the court should assist the applicant given the existence of the alternative remedy: asking myself the question Godfrey JA posed, I would answer it in the negative.

CONCLUSION

26. I reject the contention that the judge's refusal of the latest application was unreasonable or one that gave rise to a breach of natural justice or that it results in unfairness to the applicant. I am unpersuaded that any prejudice or unfairness will be occasioned to him by his trial proceeding to its conclusion in the normal manner and, if necessary, by his then exercising his right of appeal.  Consequently, in my judgment the applicant has failed to establish that he has a reasonably arguable case.

27. The Court of Appeal’s comments in YEUNG Chun Pong v Secretary for Justice [2008] 3 HKLRD 1 at §67 are of particular relevance and bear repetition in the present matter:

"…  There is built into the system a host of safeguards to secure for an accused a fair, and an appropriately speedy, determination.  If those safeguards are not afforded in a particular instance, there is provided by the Legislature a prescribed appeal mechanism.  That mechanism does not envisage interlocutory appeals or collateral challenges.  That is for a very good reason, namely, that in practice most trials would constantly be interrupted to the disadvantage of effective decision-making and the disruption of the system as a whole.  Sometimes disruption to and delay of a particular trial caused by a judicial review application - or even by repeated applications in the one case - may derail a prosecution properly brought by the effect of that delay upon witnesses or their availability... The outcome is that unwarranted applications to stay proceedings combined with collateral challenges themselves run the risk of abusing courts process."

16. The application for leave is dismissed.