CHIANG LILY v. SECRETARY FOR JUSTICE

CACV 55 & 151/2009

CACV 55/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 55 OF 2009

(ON APPEAL FROM HCAL NO. 42 OF 2008)

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BETWEEN

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J U D G M E N T

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Hon Ma CJHC :

1.  The two appeals (both arising in judicial review proceedings) have their origins in a decision of the Respondent (the Secretary for Justice) made in March 2008, in which it was indicated to the Applicant, an accused charged with several indictable offences, that the venue for her trial would be the District Court. In the first appeal, the issue is whether the Respondent's decision could be challenged on the basis that it was unreasonable. Wright J held it could not and dismissed the application for judicial review. In the second, where leave to institute judicial review proceedings was refused by the court below, the main issue is whether leave should have been refused on the basis that the application for judicial review constituted an abuse. Wright J did not decide this issue; instead refusing leave on the basis that no arguable ground existed. The abuse issue arose before us by way of a Respondent's Notice. Underlying both sets of proceedings for judicial review is the wish of the Applicant to be tried in front of a jury. However, I ought to make clear at the outset that these appeals are not about whether a right to a jury trial exists in Hong Kong; it is accepted there is no right or entitlement as such. It also ought to be made clear that while the Applicant wishes to have a trial by jury, it is accepted that there is no question of any unfairness were a trial to take place in the District Court.

2.  Before dealing with the issues that arise in these appeals in greater detail, I ought first set out the factual context and the relevant statutory scheme.

3.  On 23 October 2007, the Applicant was arrested by the ICAC. In January 2008, the Applicant, together with another person, was charged with one charge of conspiracy to defraud and two charges of making a false statement as a director (contrary to section 21 of the Theft Ordinance Cap. 210) : ‑

(1)  The conspiracy charge related to a company called Pacific Challenge Holdings Limited (“PCHL”), a company that had been founded by the Applicant in 1999.  It is alleged that the Applicant conspired with others to defraud investors of that company, as well as the Securities and Futures Commission and the Stock Exchange of Hong Kong (“the SEHK”), by concealing the fact that under a share option scheme of PCHL involving some 23,880,000 shares, some of the company's employees who were to subscribe to the shares were merely nominees for the Applicant herself.  The relevant date of this conspiracy was sometime between 1 February 2002 and 31 August 2002.

(2)  The 2nd charge alleged that on 22 April 2002, the Applicant and other officers of PCHL agreed to publish an Announcement which was misleading or false in that the company's employees who were given share options under the scheme referred to above, might not themselves be the beneficial owners of the shares.

(3)  The 3rd charge related to the publication of an alleged false statement contained in a letter dated 6 June 2002 in which it was stated that 21,492,000 shares options would be granted to certain employees of PCHL.  The allegation was that these employees were not be the beneficial owner of the shares under the option.

4.  By a letter dated 29 February 2008, the Respondent informed the Applicant's solicitors, Fairbairn Catley Low & Kong (“FCLK”) that at the next court appearance (scheduled for 3 March 2008), two additional charges would be laid against her. The two additional charges were : ‑

(1)  A 4th charge alleging that between 16 January 2001 and 5 December 2001, the Applicant together with others made a false representation with intent to deceive the SEHK in relation to another company, Eco-Tek Holdings Limited (“Eco-Tek”), a company also founded by the Applicant in 1999.  The false statement was it was represented that after a placing and capitalization issue, 8,844,800 shares of that company was held by one Yip Yuk‑chun, when in truth the Applicant had an interest in some or all of these shares.  The charge was made under section 16A of the Theft Ordinance.

(2)  A 5th charge under section 351 of and Schedule 12 to the Companies Ordinance Cap. 32, in which it was alleged that on 21 December 2001, the Applicant and another person authorized the issue of a prospectus for Eco-Tek that contained a false statement to the same effect as in charge 4.

5.  The letter of 29 February 2008 also stated that at the court hearing scheduled for 4 March 2008, the prosecution would seek to transfer all five charges to be tried in the District Court. This was an obvious reference to section 88 of the Magistrates Ordinance, Cap. 227 (to which I shall return when I deal with the relevant statutory scheme), whereby upon the application of the Respondent, a committing magistrate would have to make an order transferring all relevant charges for trial in the District Court.

6.  On 3 March 2008, FCLK responded in a letter indicating that the Applicant wished to have a trial by jury on the charges. The Respondent was accordingly requested to reconsider his position to take into account this wish. The hearing originally scheduled in the Magistrates Court on 4 March 2008 was adjourned to 25 March 2008.

7.  By a letter dated 20 March 2008, it was indicated to FCLK that the original decision to apply to have the five charges tried in the District Court, would be maintained and that, accordingly, the prosecution would ask that there be a transfer to the District Court. At the hearing on 25 March 2008, the Respondent did apply for the transfer of the criminal proceedings to the District Court, but no order was made and the matter was again adjourned (presumably it had been indicated that judicial review proceedings were being contemplated by the Applicant).

8.  It was this letter of 20 March 2008 that led to the application by the Applicant for leave to institute judicial review proceedings. The Form 86A application was issued on 5 May 2008 – this was the 1st judicial review proceedings with which we are concerned (HCAL 42/2008) (“the 1st Judicial Review”). Hartmann J granted leave on 16 May 2008 and also ordered that there be a stay of the criminal proceedings pending the outcome of the judicial review proceedings.

9.  The substantive hearing of the 1st Judicial Review took place on 2 February 2009. Wright J also heard at the same time another judicial review that had been brought by two other applicants who were charged with thirteen charges of conspiracy to defraud and a charge of offering an advantage to an agent. These other judicial review proceedings (HCAL 107/2008) involved a separate decision to that in the 1st Judicial Review, but as common issues arose in both, Wright J directed that they be heard at the same time. We are now no longer concerned with HCAL 107/2008: following the judge's dismissal of that application for judicial review, the Applicants in those proceedings did not appeal.

10.  At the hearing on 2 February 2009, the Applicant was represented by FCLK as her solicitors, and, as counsel, Mr Philip Dykes SC, Mr Hectar Pun and Miss Joycelyn Leung. Following the hearing, on9 February 2009, Wright J handed down his judgment in which both applications for judicial review were dismissed. I shall be dealing in greater detail with the issues arising in this judicial review later in this judgment; for the time being, it suffices to say that the judge was of the view that adequate reasons had been given by the Respondent for the decision to have the charges tried in the District Court. The Applicant appealed by a Notice of Appeal dated 13 March 2009 (CACV 55/2009).

11.  With the 1st Judicial Review dismissed, the criminal proceedings against the Applicant were able to resume. On 16 March 2009, the committing magistrate (Ms Bina Chainrai) made an order under section 88 of the Magistrates Ordinance transferring the criminal proceedings against the Applicant to the District Court for trial. It will be recalled that at the hearing on 25 March 2008, the prosecution had already applied for a transfer (see paragraph 7 above).

12.  The Applicant and her co-accused appeared in the District Court on 3 April 2009 but the matter was adjourned to 8 May 2009. On 7 May 2009, the Applicant and the Respondent consented to an adjournment to 18 August 2009 pending the outcome of the appeal from the 1st Judicial Review.

13.  On 14 May 2009, the Applicant instituted another application for judicial review, this time against the decision of the magistrate made on 16 March 2009 transferring the criminal proceedings against her to the District Court (“the 2nd Judicial Review”). Wright J heard the application for leave on 1 June 2009. This was an inter partes hearing; the Respondent (as the putative Respondent in these new proceedings) made submissions.

14.  The same day, Wright J dismissed the application for leave on the basis that it was not arguable, applying the test laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

15.  The Applicant has appealed the decision refusing leave by a Notice of Appeal dated 29 June 2009 (CACV 151/2009). Before dealing with the issues in both this appeal and CACV 55/2009, I ought to set out the relevant statutory context.

A. The statutory scheme

16.  Criminal offences in Hong Kong are divided into summary offences and indictable offences : ‑

(1)  Summary offences are criminal offences other than treason, or where the words “upon indictment” or “an indictment” appear in a relevant statute, or where an offence has been transferred to the District Court for trial under Part IV of the Magistrates Ordinance (see section 14A(1) of the Criminal Procedures Ordinance, Cap. 221).

(2)  An indictable offence is an offence other than a summary one.  It means a crime or offence for which a magistrate is authorized or empowered or required to commit an accused for trial before the District Court or the Court of First Instance (see section 2 of the Magistrates Ordinance).

17.  Summary offences may subject to limited circumstances only be tried in the Magistrates Court. Many indictable offences, on the other hand, may be tried either summarily, or in the District Court or the Court of First Instance. Where an offence is stated in an Ordinance to be triable either summarily or on indictment (or punishable on summary conviction or on indictment), then it can be tried either summarily (in the Magistrates Court) or on indictment (in the District Court or the Court of First Instance): section 14A(4) of the Criminal Procedure Ordinance. Where the offence is treason, or where the words “upon indictment” or “on indictment” appear and it is not further stated that the offence can be tried or is punishable either summarily or on indictment, then the offence can only be tried on indictment: section 14A(2) of the Criminal Procedure Ordinance.

18.  The Magistrates Ordinance contains detailed provisions regarding the trial of summary offences, the trial by Magistrates of indictable offences and the transfer or committal by the Magistrates Court of indictable offences to the District Court or the Court of First Instance. The sentencing jurisdiction of each of these levels of court are well-known. Only the Court of First Instance has unlimited jurisdiction in this respect (subject of course to the limits imposed by statute).

19.  The offences with which the Applicant were charged, are all indictable offences. Accordingly, as Wright J pointed out in his judgment, they were first dealt with in the Magistrates Court in committal proceedings in accordance with the procedures laid down in Part III of the Magistrates Ordinance.

20.  In terms of a transfer for trial (that is, ignoring the possibility of a guilty plea, a finding by the Magistrates Court that there is insufficient evidence to commit for trial or a summary trial), there are two possible venues: the District Court and the Court of First Instance.

21.  We are concerned in the present case with a transfer for trial to the District Court. The relevant provisions are contained in Part IV of the Magistrates Ordinance, in particular section 88 : ‑

“88.  Transfer of certain indictable offences

(1)  Notwithstanding anything contained in any other provision of this Ordinance but subject to subsection (3), whenever any person is accused before a magistrate of any indictable offence not included in any of the categories specified in Part III of the Second Schedule, the magistrate, upon application made by or on behalf of the Secretary for Justice ‑

(a)  shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court; and

(b)  may, if the person is also accused of any offence triable summarily only, make an order transferring the charge or complaint in respect of the summary offence to the District Court.

(2)  An application under subsection (1) may be made either orally in open court or in writing.

(3)  Subsection (1) shall not apply in relation to any proceedings transferred to be dealt with summarily by a magistrate pursuant to section 65F of the Criminal Procedure Ordinance (Cap. 221) or section 77A of the District Court Ordinance (Cap. 336) or transferred for a preliminary inquiry pursuant to section 77A of the District Court Ordinance (Cap. 336).”

22.  The effect of section 88, which was at the centre of the Applicant's submissions, is this: where the Secretary for Justice applies to a magistrate for the transfer of a charge or complaint made against an accused person to be dealt with in the District Court, the magistrate must make an order to this effect; in other words, there is no discretion to refuse an order for transfer.

23.  The decision of the Court of Appeal in David Lam Shu-Tsang v Attorney General, unreported, CACV 42 and 43 of 1977, 7 November 1977 confirms that the machinery under section 88 is a mandatory one. As Pickering JA said at page 6 (when addressing the background and effect of that provision) : ‑

“  When a community, through its Legislature, radically alters the structure of its Courts and, as a corollary to so doing, provides by a new section of an established enactment, the exclusive machinery whereby criminal cases shall reach a newly constituted Court itself obviously the subject of a wholly new contemporaneous enactment, it is idle to attempt to construe that transferal section of the existing enactment without reference to the all-pervading shift in juridical competence enshrined in the new legislation.  The scheme of the legislation was clear and fragmentation of interpretation has no part in that scheme.  That, I believe, must be the principle and applying it to the facts of the present case, whereas in 1953 the former Magistrate's Courts, the Supreme Court and the Full Court remained in existence there came into being, at a level between the Magistrate's Courts and the Supreme Court, a completely new jurisdictional tier in the form of the District Court in which, by the very constitution of the Court, there was no room for a jury.  It was to this Court that transfer of cases from the Magistrate's Courts was contemplated and the section providing for mandatory transfer of indictable offences upon the application of the Attorney General contained no saving clause, nothing to the effect that the Attorney General must consult the wishes of the accused and nothing giving the accused any right of objection to the transfer.  The discretion as to whether to apply for transfer was invested solely in the Attorney General and, upon his exercising that discretion by electing for transfer, the obligation to transfer lying upon the Magistrate was absolute.  The scheme of the legislation was clear beyond a peradventure and it entailed, with equal clarity, the deprivation of the former common law right to trial by jury.”

24.  The final part of the quoted passage makes a reference to the right to trial by jury. There is no such right in Hong Kong and it was not contended on behalf of the Applicant that there was any right to a trial by jury that belonged to an accused.

25.  The only reference to trial by jury in the Basic Law is Article 86 : ‑

“Article 86

The principle of trial by jury previously practised in Hong Kong shall be maintained.”

In the court below, much time was devoted to the question of what was the “principle of trial by jury previously practised in Hong Kong”.  In view of the concession that there was no right to a jury trial in Hong Kong as such, it is unnecessary in the present appeals to go into this question.

26.  I now deal with the two appeals.

B. CACV 55 of 2009

B1. The challenge

27.  The relevant decision that was challenged in these judicial review proceedings was that contained in the letter dated 20 March 2008, namely the decision by the Respondent to have the criminal charges against the Applicant transferred to the District Court under section 88 of the Magistrates Ordinance.

28.  In the Form 86A application in HCAL 42/2008, concessions were made narrowing the ambit of the judicial review challenge in the following way : ‑

“V  GROUNDS OF REVIEW

57.  It is not the Applicant's case that she has an absolute right to jury trial.  The “principle” referred to in Article 86 of Basic Law is to be understood as referring to a system in which a person accused of an indictable offence was liable to be tried on indictment, unless the Secretary for Justice intervened and required summary trial before a magistrate or District Judge.

58.  It is not the Applicant's case that she cannot have a fair trial in the District Court.  The right to a fair trial “by the judicial organs” of the HKSAR is expressly guaranteed by Article 87 of Basic Law.  That means a fair trial before a magistrate, a District Judge or a judge of the Court of First Instance when sitting with a jury.

59.  It is not the Applicant's case that there is necessarily something inherently and irredeemably unfair in giving the prosecution the right to decide where a case should be tried.  In at least one jurisdiction, Scotland, the procurator fiscal, as “master of the instance”, decides upon the venue of trial in a criminal justice system which allows for summary trial before a District Court (60 days imprisonment maximum) or before a sheriff (12 months' imprisonment maximum) or trial by “solemn procedure”, i.e. with a jury, before a sheriff (5 years' imprisonment maximum) or before a judge of the High Court of Justiciary (jurisdiction limited only by offence).

60.  It is the Applicant's case however that, unlike Scotland, or England & Wales for that matter, trial by jury has an entrenched constitutional value.  There is, in addition, a legislative presumption that a person accused of an indictable offence is entitled, unless there is intervention by the prosecutor on behalf of the SJ, to go through committal proceedings and, if those proceedings succeed, will be entitled to be tried on indictment.”

29.  Given the concessions made by the Applicant in the Grounds of Review in the Form 86A as set out in the previous paragraph, it is clear that no constitutional challenge was made by the Applicant as to the legislative scheme under Part IV of the Magistrates Ordinance, and, in particular within that part, section 88. This is a point that assumes considerable importance when I come to deal with CACV 151/2009 and the question of abuse that arises in it.

30.  Instead, the challenge was directed only at the decision by the Respondent. As Mr Johnny Mok, SC (who represented the Applicant in both appeals with Mr Hectar Pun) ultimately made clear, it was said that the decision was unreasonable in the Wednesbury sense; in other words, it was an irrational decision. Where a challenge is made on this basis (finding its origins in the case of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223), broadly speaking, it is necessary for an applicant to demonstrate, for example, that in arriving at the relevant decision, a decision-maker displayed bad faith, or took into account extraneous factors, or failed to take into account relevant ones or disregarded public policy. In the context of a prosecutor's decision-making powers, see also David Lam (in particular the decision of the Full Bench reported in [1977] HKLR 393, at 402‑3) and the decision of this court in Re C (A Bankrupt) [2006] 4 HKC 582, at 591 H-J (paragraph 20). Traditionally, a challenge on this basis has in practice involved a high hurdle to overcome.

B2. The decision contained in the letter dated 20 March 2008

31.  It is accordingly in this context that I must now examine the letters dated 3 March 2008 (from FCLK to the Respondent) and dated 20 March 2008 (from the Respondent in reply) in greater detail.

32.  It will be recalled that by the letter dated 29 February 2008 (see paragraphs 4 and 5 above), the prosecution informed the Applicant of two additional charges being laid and, more important for present purposes, that the Respondent would seek to have all five charges transferred so as to be dealt with in the District Court. It was in response to this letter that FCLK wrote to the Respondent on 3 March 2008.

33.  In that letter, the following points were made on behalf of the Applicant to the Respondent to contend that she should be tried in front of a jury : ‑

(1)  A historical background was provided which included references to Article 86 of the Basic Law and the case of David Lam (see paragraphs 23 and 25 above).

(2)  The crimes with which the Applicant were charged were said to be serious ones, attracting a possible sentence of up to 51 years.  The letter continued in this respect : ‑

“Obviously, such a sentence will not be passed, but it is worth making the point that the offences are serious and that prosecutorial discretion about choice of venue should not be a vehicle for unwarranted and avoidable clemency at the hands of a judge who might, if sitting in another court, pass a different sentence.”

(3)  Trial by jury was referred to as a “Common Law right” and the “right to a jury trial” being a “fundamental right of a British subject in colonial days”.

(4)  It was said that the “right” to a jury trial had been taken away by the amendments introduced in 1953 which established the District Court as a venue for criminal cases and which also introduced the present section 88 of the Magistrates Ordinance (see the reference to this in the passage from David Lam as set out in paragraph 23 above).  Even though it appears to have been accepted that the prosecution had the discretion to decide on the venue for trial (Article 63 of the Basic Law stating that the Department of Justice “shall control criminal prosecutions free from any interference” was also referred to), the Respondent was urged to take into account the fact that there were considerably more persons qualified to be jurors in Hong Kong now than in 1953.  The Respondent was reminded that the prosecution policy regarding venue for trial had consequently to be continually kept under review.

(5)  It was also said that insofar as any decision not to proceed by way of trial by jury might be dictated by resource constraints or implications imposed by other branches of Government, such a decision would have been tainted by some form of interference.

34.  Before dealing with the reply of 20 March 2008, I ought just to make the following observations in respect of this letter from FCLK, for this will be of some relevance when I come to deal with the question of abuse arising in CACV 151/2009 : ‑

(1)  It is clear from all the reference to the Basic Law that the Applicant could be taken to be fully aware of the constitutional considerations that arose in the context of a decision to have criminal proceedings transferred to be dealt with by the District Court (under section 88 of the Magistrates Ordinance).

(2)  Although it seems to have been asserted that there was some form of Common Law right to a jury trial, on analysis, it was accepted by the Application that she had no such right once account was taken of the discretion belonging to the Respondent to decide the venue for trial under section 88 of the Magistrates Ordinance

35.  The relevant part of the letter of 20 March 2008 from the Respondent to the FCLK stated as follows : ‑

“  Having carefully considered your letter, I maintain my decision that the District Court would be a proper venue for the trial in this case and that the trial should be held in the District Court.  Should your client be convicted it is unlikely that her conduct would attract a sentence of imprisonment greater than the jurisdiction of the District Court.  I note you have not referred to any matter peculiar to your client which would prevent her from receiving a fair trial in the District Court.  I have no doubt that your client can and will receive a fair trial in the District Court and I see no good reason why her case should not be tried there.  My decision was not affected in any way by resource constraints.”

36.  Four points made in this passage ought to be emphasized : ‑

(1)  That the points made in the letter dated 3 March 2008 from FCLK had been “carefully considered”.

(2)  Emphasis was laid on the fact that the likely sentence that the Applicant would receive if found guilty would not exceed the jurisdiction of the District Court (namely 7 years imprisonment).

(3)  Nothing had been referred to in the 3 March 2008 letter “peculiar to [the Applicant]” that would prevent a fair trial from taking place in the District Court.

(4)  Resource constraints did not affect the decision to have the charges dealt with in the District Court.

37.  Before us, Mr Mok emphasized time and again the importance of a trial by jury to an accused. Ultimately, although he had to shy away from any suggestion that there was any such right, it was nevertheless submitted that this was such an important factor that due, if not weighty, consideration had to be given to it by the Respondent in arriving at a decision whether or not to apply under section 88 of the Magistrates Ordinance for the transfer of criminal proceedings to the District Court. It was contended that the Respondent had not given any due (or even any) consideration to this aspect in arriving at the decision to apply for a transfer. Mr Mok pointed to the absence of any detailed reasons contained in the 20 March 2008 letter going to this aspect or even reasons dealing with those factors identified in the Statement of Prosecution Policy and Practice published by the Department of Justice. Criticism was made of the failure to weigh and evaluate the various factors that had to be considered, and of the undue emphasis on the likely sentence that the Applicant would receive if she were convicted.

B3. Analysis

38.  In my judgment, none of the criticisms made by the Applicant is enough, individually or cumulatively, to impugn the decision to apply to have the proceedings transferred to the District Court : ‑

(1)  Insofar as the challenge was based on the decision being unreasonable in the Wednesbury sense, the Applicant has not gone anywhere far enough to succeed along this lines.  There is nothing inherently unreasonable in a decision to apply for a transfer when the main reason is the likely sentence that might be imposed if a conviction were to materialize.  As Wright J pointed out in his judgment, the Court of Appeal has in a number of cases emphasized the importance of taking into account the possible sentence when determining the venue for trial.

(2)  Insofar as the challenge is based on a suggested failure to take into account relevant factors, the points made by the Applicant in the letter dated 3 March 2008 letter from FCLK (see paragraph 33 above) were stated in the 20 March 2008 letter (see paragraph 35 above)to have been “carefully considered”.  There was a faint suggestion made by Mr Mok that perhaps the points made by the Applicant should have been dealt with individually and in greater detail by the Respondent but, with respect, even assuming there to be such a general obligation (which I doubt) the fact that they were not so dealt with does not equate to the decision being unreasonable, whether in the Wednesbury sense or otherwise.  Furthermore, the fact that the Respondent might have addressed the points individually does not mean he did not address them.

(3)  It is also important to highlight the point made in the 20 March 2008 letter that the Applicant had not referred to any aspect “peculiar” to her that would prevent a fair trial from taking place in the District Court.  This was effectively emphasizing the fact that no factor had been identified by the Applicant to suggest that a jury trial would be, in her case, any fairer than a trial in the District Court.  The only matters that perhaps could be said to be peculiar to the Applicant was her subjective desire to have a trial by jury and the fact that she was charged with serious offences that might attract long sentences were she to be convicted.

(4)  Yet, the sentence aspect was already considered by the Respondent so there can really be no valid complaint here.

(5)  As to the Applicant's subjective desire to have a trial by jury, while I acknowledge the importance of this as far as an accused is concerned, where, however, there is no constitutional right to a trial by jury and in the absence of any objective, peculiar and powerful features pointing to the desirability of a trial by jury rather than before a single judge, it is difficult to see why this factor should be elevated into almost a paramount one, as the Applicant's submissions impliedly suggest.  In any event, as shown above (see sub-paragraph (2)), it was duly considered by the Respondent.  Mr Mok criticized the Statement of Prosecution Policy and Practice for omitting even to identify this desire as a factor to be taken into account, but this cannot mean that this factor was not in fact taken into account in the present case; it clearly was, since all the points made by the Applicant had been “carefully considered.”  I would also observe here that insofar as the Statement of Prosecution Policy and Practice is concerned, there is no challenge made to it in the present judicial review proceedings.

(6)  As to the argument that the Respondent did not deal with each of the factors contained in the Statement of Prosecution Policy and Practice, I cannot agree with it.  It is not for the Respondent to demonstrate that each factor has been considered in his decision; the burden is on the Applicant (as indeed it is incumbent on any applicant in judicial review proceedings) to demonstrate that the decision is flawed and provide details of this before a Respondent is required to answer them.

(7)  Lastly, it is difficult to see how the Respondent could have dealt with the Applicant's letter dated 3 March 2008 in any greater detail or provide reasons in addition to those provided, when the Applicant had provided no reason of her own as to why she preferred or desired a trial by jury.

B4.  Conclusion on CACV 55/2009

39.  For these reasons, the appeal in CACV 55/2009 is dismissed.

C. CACV 151 of 2009

C1. The challenge

40.  It will be recalled in the above chronology of events that following the dismissal by Wright J of the 1st Judicial Review on 9 February 2009, the criminal proceedings against the Applicant were able to resume. On 16 March 2009, Ms Bina Chainrai made an order under section 88 of the Magistrates Ordinance transferring the five charges laid against the Applicant to be dealt with in the District Court. On 14 May 2009, two months later, the Applicant instituted the 2nd Judicial Review, this time challenging the decision of the 16 March 2009.

41.  The application for leave to institute judicial review proceedings against this decision sought a declaration that “section 88 of the Magistrates Ordinance, Cap. 2 to 7 is inconsistent with Articles 2, 19(1), 80, 85 & 86 of the Basic Law …. and is unconstitutional”. The argument was essentially this : ‑

(1)  The effect of section  88 conferred on the Respondent a power to determine the venue for criminal cases and this was a power that was entirely within his discretion.

(2)  The power to decide the proper venue for a criminal trial should, however, vest in the court.  It is a judicial power and not an administrative one, and the exercise of judicial power belongs to the court.  This, it is said, was the effect of the concept of the separation of powers contained in the Basic Law.

(3)  Accordingly, the effect of section 88 being to take away the exercise of this judicial power from the court and instead vesting it in the Secretary for Justice, this provision thereby contravened the Basic Law, was unconstitutional and therefore had to be struck down.

42.  In support of this position, reference was made by the Applicant to the position in various jurisdictions such as Canada, the United Kingdom and the United States. Two observations can be made in this context : ‑

(1)  In these jurisdictions, there may indeed be entrenched rights to a jury trial given to an accused.  By contrast, as mentioned above, there is no such absolute right in Hong Kong (although it should be pointed out that where the venue chosen is the Court of First Instance, there is in that instance a requirement for jury trial).  This will not be too dissimilar to the position in some jurisdictions where certain offences (usually relatively minor offences) can be dealt with summarily without there being a right to a jury trial.

(2)  In those jurisdictions where there is a right to trial by jury, the choice belongs to an accused.  There is generally no question of a court being asked to exercise a judicial power to determine whether a trial by jury should take place.  In other words, in such jurisdictions, the choice of venue is then left to an accused rather than (as in Hong Kong) the prosecution.  The court is simply not engaged in the question of deciding the venue for trial.

43.  The focus then of the 2nd Judicial Review being a challenge on the power vested in the Respondent to determine the venue for trial in criminal proceedings, the inevitable question arises as to why this challenge was not made in the 1st Judicial Review. After all, the very legal basis for the challenge against the decision contained in the 20 March 2008 letter was that once the Respondent decided to apply under section 88 for a transfer of the proceedings to the District Court, this was inevitable and an order would have to be made by the committing magistrate. The Form 86A in HCAL 42/2008 made this abundantly clear when identifying the decision challenged in those proceedings: ‑

“Judgment, Order, Decision or other Proceeding in respect of which relief is sought

The decision of the Secretary for Justice contained in a letter dated 20 March 2008 refusing to continue the committal proceedings in ESCC 105/2008 against the Applicant under Part III of the Magistrates Ordinance (“the MO”) but, instead, requiring the said proceedings to terminate with the transfer of the case to the District Court under section 88 of the MO.”

44.  By the time the 1st Judicial Review was launched on 5 May 2008, the Respondent had already (on 25 March 2008) applied to the court for a transfer under section 88 (see paragraph 7 above).

45.  At the hearing of the application for leave before Wright J on 1 June 2009, it was contended by the Respondent that the application for judicial review constituted an abuse and leave therefore should be refused on this basis. The abuse alleged was that it had been entirely open to the Applicant to argue the same point in the 1st Judicial Review as was attempted to be pursued in the 2nd Judicial Review. Yet it was not; worse still, this was a point that had expressly been conceded in the earlier judicial review.

46.  In his judgment of 1 June 2009 dismissing the application for leave, Wright J did not reach any conclusion on the abuse issue, although he did remark that no acceptable reason had been given as to why a declaration of unconstitutionality was not sought in the 1st Judicial Review. The Judge also found the submissions on abuse (from the Respondent) “attractive”. Instead, the learned judge determined the constitutional issue and concluded it was not reasonably arguable.

47.  For my part, it is first necessary to determine the abuse issue. If leave ought to have been refused on account of the proceedings constituting an abuse, then the court should not, as a matter of principle, deal with any other issue, even accepting (for present purposes) that the relevant issue may be one of importance. It would be wrong for a court to deal with other issues if it came to the conclusion that the proceedings were an abuse. To do so would largely play into the hands of the party in default and provide an unfortunate precedent whereby despite the existence of abuse, the court nevertheless continued with the proceedings as if the abuse never occurred. Such an approach would mean that the court might also be asked to adjudicate on the merits of a case in the hope, if not expectation, that if they were good, the abuse might somehow be overlooked when, as a matter of principle, abuses ought not be. Obviously, circumstances may dictate a different approach but in the present case, it would have been more appropriate to have dealt with the abuse issue first.

48.  In the appeal before us, both sides at first addressed only the merits of the application for leave to institute judicial proceedings (that is, the constitutional issue). It was only when the court raised with Mr Kevin Zervos, SC (for the Respondent) the issue of abuse that it came to be dealt with. For this purpose, leave had to be obtained to serve a Respondent's Notice raising the above issue. Leave was not resisted. The Applicant was, however, given leave to serve an affidavit from the solicitors seeking to explain why the constitutional argument was not raised in the previous judicial review proceedings. I shall in due course deal with this affidavit.

C2. The legal approach

49.  Section 21K(3) of the High Court Ordinance, Cap. 4 states that no application for judicial review can be made unless leave has been obtained. This requirement is repeated in RHC Order 53 rule 3(1). For example, where a potential applicant has insufficient standing (see section 21K(3) and RHC Order 53 rule 3(7)) or has delayed his application for judicial review (see section 21K(6) and RHC Order 53 rule 4), leave may be refused.

50.  The leave requirement is an important feature of judicial review. Given the impact that many decisions of a public nature have and therefore the need for certainty in decisions that can affect many people, the need to filter out unmeritorious applications assumes considerable importance. Even where decisions may affect only a limited number of people, sometimes just one person, the public interest demands that decisions should be challenged in a timely manner and on proper basis. In Po Fun Chan v Winnie Cheung (a case involving a challenge to a decision of the governing body for accountants rejecting the applicant's application for reinstatement), the Court of Final Appeal emphasized the importance of expedition : Bokhary PJ said at 686G-H (paragraph 9) “the filtering out of unarguable judicial review cases is naturally conducive to according expedition to those arguable judicial review cases in particular need of being dealt with expeditiously”; Litton NPJ at 687E-F (paragraph 23) referred to the “just, expeditious and economical” disposal of grievances.

51.  In the context of criminal charges and criminal trials, much has been said in recent times by the courts deprecating the trend of what are known as collateral challenges which delay or fragment the progress and timely disposal of criminal proceedings: see the comments of Sir Anthony Mason NPJ in Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836, at 849C-D (paragraph 44). It goes without saying that the public interest is clearly in the efficient and expeditious disposal of criminal charges, and that unnecessary delays ought not to be permitted.

52.  In this context, undue delay in instituting judicial review proceedings may be a reason to refuse leave. This is an aspect I shall elaborate on later in this judgment. So would an application which does not pass the arguability test (meaning reasonable arguability: a case than on the merits enjoys a realistic prospect of success) laid down in Po Fun Chun v Winnie Cheung.

53.  In my judgment, it is clear that proceedings which constitute an abuse or are vexatious should be filtered out at the leave stage. The commentary at paragraph 53/14/15 of Hong Kong Civil Procedure 2009Volume 1 states as one of the purposes of the leave requirement “to eliminate frivolous, vexatious or hopeless applications for judicial review without the need for a later substantive hearing”.

54.  The abuse with which we are concerned is the bringing of judicial review proceedings on a basis that could and should have been brought in earlier judicial review proceedings. The additional feature in the present case is that the very point that was sought to be raised in the 2nd Judicial Review was one that was expressly conceded in the first.

55.  In the submissions before us, there was some discussion as to whether the abuse that was alleged was some form of res judicata in the wider sense. In order just to identify this principle, I need only refer to two short passages contained in the judgment of Cheung JA in Ngai Few Fung v Cheung Kwai Heung [2008] 2 HKC 111 where at 115B-G (paragraphs 11‑12), he said : ‑

“Henderson v Henderson

11.  This principle of estoppel can be found in the well-known case of Henderson v Henderson (1843) 3 Hare 100, where Wigram VC at 115 held that:

‘… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.  The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.'

Yat Tung Investment Co Ltd

12.  This principle was approved by the Privy Council in an appeal from Hong Kong in the case of Yat Tung Investment Co Ltd v Dao Heng Bank Ltd & Anor [1975] AC 581.  Lord Kilbrandon at p 590 held that:

‘But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.'”

56.  It is unnecessary for the purposes of the present appeal to go into the question whether res judicata in the Henderson v Henderson sense (that is, res judicata in the wider sense), strictly speaking, applies. I can envisage complex questions arising as to whether as a matter of law, the 1st and 2nd Judicial Reviews in the present case did actually involve the same parties. While in a sense the parties are indeed the same, yet the decision challenged in the 1st Judicial Review (that of the Respondent) is to be contrasted with the order challenged in the 2nd Judicial Review (that of the committing magistrate). The complexities increase when one enters into an examination of the extent to which res judicata applies in public law litigation in the first place.

57.  It is unnecessary to dwell on these issues that arise on a consideration of the various facets of the doctrine of res judicata if one keeps firmly in mind the real issue that, in my view, has to be addressed, namely, the question of abuse arising from matters that ought properly have been litigated in previous proceedings. I emphasize here the existence of two elements that have to be demonstrated by the part alleging abuse: that there exist matters that could and should have been litigated in earlier proceedings. I am aware that in Yat Tung (in the passage quoted in paragraph 55 above), Lord Kilbrandon did refer to “matters which could and therefore should have been litigated in earlier proceedings” (my emphasis). However, despite the reservations expressed by the court in Chen Roy v Wan Ching Lam Anita [2006] 1 HKC 454 on whether this represents the law on this topic in Hong Kong (see in particular 463F–464E (paragraphs 26 and 27)), I think it is now clear that just because a point could have been raised in earlier proceedings did not of itself mean that it should have been. This is consistent with the approach of this court in Tsang Yu v Tai Sang Container Cold Storage and Wharf Limited [2000] 1 HKLRD 780, at 784A-I and Ngai Few Fong v Cheung Kwai Heung. In Johnson v Gore Wood & Co (a firm) [2002] 2AC 1, Lord Bingham of Cornhill said at 31A-E : ‑

“  But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them.  The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter.  This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.  The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all.  I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party.  It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive.  That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.  As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not.  Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim.  While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances.  Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

58.  The starting point is a statement of general principle that the court must possess an inherent power to prevent abuse in situations that would be manifestly unfair or unjust to a party before it or would otherwise bring the administration of justice into disrepute. In Hunter v Chief Constable of the West Midlands Police [1982] AC 529, Lord Diplock said in a well-known passage at 536B-D : ‑

“  My Lords, this is a case about abuse of the process of the High Court.  It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.  The circumstances in which abuse of process can arise are very varied.”

This inherent power existed in Hong Kong well before the innovations brought about by the Civil Justice Reform but it is all the more underlined by that Reform.  The Underlying Objectives stated in RHC Order 1A rule 1(b) and (d) refer to the desirability of expedition and the necessity of ensuring fairness.

59.  Apart from any question of res judicata (whether in the narrow or wider sense), abuse can arise in attempting to relitigate matters decided in previous rulings that were not strictly speaking binding on the party seeking to raise them in later proceedings: see, for example, Ashmore v British Coal Corporation [1990] 2 QB 338.

60.  It is important to bear in mind that the roots of the doctrine of res judicata lie in the more general principle that the court's process must not be abused: see the decision of the Judicial Committee of the Privy Council in Brisbane City Counsel v Attorney General [1979] AC 411, at 425G-H per Lord Wilberforce. In Johnson v Gore Wood, Lord Millett said this at 59D-E : ‑

“  It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon.  This latter (though not the former) is prima facie a denial of the citizen's right of access to the court conferred by the common law and guaranteed by article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953).  While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”

See also the judgment of Lord Bingham of Cornhill in the same case at 31A-E (set out in paragraph 57 above).

61.  These passages emphasizing again the public interest were expressly approved by this court in Ngai Few Fung v Cheung Kwai Heung.

62.  Much therefore depends in any given case on the precise circumstances as to whether or not the attempt to raise an issue for determination in proceedings will constitute an abuse where such an issue could have been raised in previous proceedings. Where an issue should have been raised, it is likely that an abuse has occurred.

63.  I am fully cognisant of the point made by Lord Millet in the passage quoted from Johnson v Gore Wood (see paragraph 60 above) that the denial of a person's right to litigate for the first time a matter not previously decided may constitute a denial of access to the court (see here Article 35 of the Basic Law). However, I would observe here that a number of seemingly contradictory principles or concepts can be involved when one is considering whether a party should be shut out from litigating an issue which could have been previously litigated, but has not. The key lies in determining whether an abuse has truly taken place and an examination of the public interest that is involved.

64.  Before dealing with the facts of the present case, I ought to deal with an argument advanced by Mr Mok to the effect that the 2nd Judicial Review was different in nature to the 1st Judicial Review in that it involved a decision of the committing magistrate on 16 March 2009, a different decision to the one challenged in the 1st Judicial Review. Not only that, it was said this decision could not have been challenged in the 1st Judicial Review : it will be recalled that the hearing before Wright J in the 1st Judicial Review took place on 2 February 2009, with judgment handed down on 9 February 2009.

65.  I have already mentioned RHC Order 53 rule 4 dealing with delay in judicial review proceedings. That Rule states : ‑

“Delay in applying for relief

4.—(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3)  The preceding paragraphs are without prejudice to any statutory provision which has the effect of limiting the time within which an application for judicial review may be made.”

66.  Accordingly, it could be argued that as the application for leave in the 2nd Judicial Review was made on 14 May 2009, this was well within the 3 month period mentioned in Order 53 rule 4(1). And, as Order 53 rule 4(2) makes clear, the time when “grounds for the application first arose” would be the date of the Order of the 16 March 2009 (an order for certiorari was sought in the Form 86A against this Order).

67.  I accept that superficially, these arguments carry some weight and in certain situations, will provide a complete answer enabling a second set of proceedings to continue. However, much again depends on the precise circumstances.

68.  The critical issue with which we are concerned is still whether there existed an abuse in the institution of a later set of proceedings on a basis that could and should have been litigated in an earlier set of proceedings. The fact that the later set of proceedings involved a different decision or order is no doubt an important factor to be taken into account, but one must always look at the substance of the matter and not merely the form. In other words, as Lord Diplock implicitly recognized in the passage extracted from Hunter v Chief Constable of the West Midlands Police (see paragraph 58 above), one must look at questions of abuse (“misuse” is the term he uses) even though what has been done may be consistent with the literal application of procedural rules.

69.  Lastly, it was also submitted by Mr Mok that insofar as any abuse may be found to exist consequent upon a point not having been taken by a party in earlier proceedings, it would be a factor for the court's discretion to consider whether the failure was attributable to the legal advisers of that party. The argument was really that any default on the part of the legal advisers ought not be visited on the client. I am aware that in certain circumstances, this may be a factor to excuse a failure to comply with court orders (see for example RHC Order 2 rule 5(1)(f)), but where an abuse is found to exist, I find it difficult to conceive that the failure of a legal adviser can somehow excuse that abuse. The failure of one's legal adviser should hardly affect the question of whether there has been an abuse. The remedies of a party in such a situation lie elsewhere than in being permitted to proceed with a set of proceedings which constitute an abuse of the court's process.

70.  With these principles in mind, I now analyse the facts in this appeal.

C3. Was there an abuse in instituting the 2nd Judicial Review?

71.  In my judgment, it was clearly an abuse to seek to institute the 2nd Judicial Review, and Wright J was correct to refuse leave (albeit he did not do so on this basis).

72.  It is first important to note that underlying the 1st Judicial Review was the assumption that under section 88 of the Magistrates Ordinance, the decision as to the venue of trial in the District Court was left entirely to the discretion of the Respondent and that once a decision was made to seek a transfer, an order to this effect would be inevitable (see paragraph 43 above). Paragraphs 27 and 32 of the Form 86A in HCAL 42/2008 also made this clear : ‑

“27.  The effect of the enactment of the DCO in 1953 was to take away the benefit of trial by jury at the discretion of a magistrate by placing the decision regarding venue in the hands of the prosecutor.  See In an application by David Lam Shu‑tsang & another for an Order of Certiorari [1977] HKLR 393 and, on appeal, CACV's 42 and 43/1977, unreported, 7 November 1977.”

“32.  Neither the magistrate nor the defendant can object to the request for a transfer by the prosecutor.  Once the order for transfer is made, proceedings before the magistrate are stayed pursuant to section 89(1) of the MO and the magistrate's jurisdiction over the case ends for all practical purposes.”

The reference to the enactment of the District Court Ordinance in 1953 is a reference to the legislative changes that year which is established the District Court (see in this context the passage from David Lam set out in paragraph 23 above).

73.  I have already set out in paragraph 28 above paragraph 59 of the Form 86A in those proceedings, referring to the prosecutions “right to decide where a case should be tried”.

74.  It was on this underlying basis that the Applicant mounted her challenge in the 1st Judicial Review against the reasoning in the Respondent's decision contained in 20 March 2008 letter.

75.  There can be no doubt in these circumstances that a constitutional challenge against section 88 of the Magistrates Ordinance on the basis that the power to determine the venue of trial is a judicial one and should therefore vest in the court rather than the Secretary for Justice, was a challenge that was clearly open to the Applicant to make in the 1st Judicial Review. Accordingly, this was a basis of challenge to the decision contained in the 20 March 2008 letter that could have been made in the 1st Judicial Review. The argument that could be mounted would have run something along the following lines: the decision could be impugned on the basis that the statutory vehicle by which an application for transfer could be made (section 88 of the Magistrates Ordinance) was not one that was permissible in law since that provision was unconstitutional in allowing the power to decide venue to be exercised by the prosecution instead of by the court.

76.  The Applicant was clearly aware of the possibility of this argument. The concession made in paragraph 59 of the Form 86A (paragraph 28 above), which was repeated in the written submissions placed before Wright J as well as in oral submissions (see paragraph 11 of the judgment handed down on 9 February 2009), demonstrates this. The letter of 3 March 2008 from FCLK to the Respondent also indicated that the Applicant was aware of possible constitutional arguments (see paragraphs 33 and 34 above).

77.  The remaining question then is whether this constitutional challenge was one that should have been made in the 1st Judicial Review. In my view, it ought to have been : ‑

(1)  The event that triggers an order for the transfer of criminal proceedings to the District Court under section 88 of the Magistrates Ordinance is an application by the Secretary for Justice for a transfer.  Once an application is made, the process is an automatic one as we have seen : in other words, upon an application, the transfer order becomes an inevitability.

(2)  Accordingly, in the present case, once the prosecution had stated (or rather, restated), its intention in the 20 March 2008 letter to apply for a transfer, an order under section 88 was bound to be made.  In these circumstances, the principle decision as far as a transfer was concerned, must in reality have been the Respondent's decision to apply for a transfer, for this was the triggering event that would inevitably lead to a transfer.  Clearly, the Applicant recognized this: hence the 1st Judicial Review being launched.

(3)  If, as shown above, the underlying assumption of the 1st Judicial Review was the power given to the Respondent to determine venue, those proceedings were clearly the most appropriate proceedings to mount a constitutional challenge to that underlying assumption.  It should be noted that by the time the 1st Judicial Review was heard by Wright J on 2 February 2009, the Respondent had by then (on 25 March 2008) already applied for a transfer under section 88, so that if the matter had come before a magistrate, it was even more inevitable that a transfer order would be made.

(4)  Challenging the order made by the committing magistrate on 16 March 2009 in the 2nd Judicial Review amounted, in these circumstances, effectively to a collateral challenge on the original, and principal, decision, which was the very subject matter of the 1st Judicial Review.  A collateral challenge can constitute an abuse and ought not be permitted (see the passage from the judgment of Lord Bingham of Cornhill in Johnson v Gore Wood set out in paragraph 57 above).

(5)  Mounting a constitutional challenge in the 1st Judicial Review was not only open to the Applicant (and those proceedings were clearly the appropriate proceedings in which to do so), it would also have resulted in the least disruption and delay to the criminal proceedings against her.  All issues which could have been dealt with, would then have been determined by the court at the same time instead of piecemeal in two sets of proceedings.  The delay to and fragmentation of the criminal proceedings cannot be underestimated.  The chronology of the present criminal proceedings against the Applicant outlined above demonstrates this.  Basically, these proceedings have stopped since the two judicial reviews have been launched, and all this in relation to criminal charges that related to events dating back as far as 2001; the type of history with which the courts are all too familiar, especially in commercial crime cases.  Were the 2nd Judicial Review permitted to continue, the proceedings would then revert to the Court of First Instance for the substantive hearing (it will be remembered that the present appeal only concerns the question of whether leave should have been granted by the court below), and there may be possible consequent appeals as well.

(6)  It is a point of some significance that the constitutional challenge sought to be raised in the 2nd Judicial Review was one that was expressly conceded by the Applicant in the 1st Judicial Review.  I have already referred to paragraph 59 of the Form 86A in those proceedings.

78.  On the point just made in paragraph 77(6) above, I would observe that there is something inherently unattractive in a party resiling from a position taken in earlier proceedings and then seeking to resurrect it in later proceedings. When one adds to this the delay and disruption that is caused where there are, as in the present case, underlying criminal proceedings, the position is very much aggravated. It would, in my view, be an affront to the administration of justice were this permitted to happen unless exceptional circumstances exist to justify such a situation. None, in my view, exists in the present case.

79.  As to the relevant circumstances, Mr Mok's submissions here focused on the position of the legal advisers. The following matters are relevant in this context : ‑

(1)  The Applicant engaged the same solicitors for both the 1st and 2nd Judicial Review, namely FCLK.

(2)  In the 1st judicial review, three counsel were instructed; in the 2nd Judicial Review, three counsel were also instructed.  One counsel was common to both proceedings.

(3)  Before us, Mr Mok submitted that the former legal team for the Applicant (those engaged in the 1st Judicial Review) was not aware that a point could be taken that section 88 of the Magistrates Ordinance was unconstitutional and this was only “flagged” when Leading Counsel in London gave an advice subsequent to the judgment in the 1st Judicial Review.  This statement of fact from the Bar table, which we wanted verified on oath, led to an affidavit from the partner of FCLK  in charge of the case (Ms Barbara Chiu) being served.  In it, she clarified what we were told by leading counsel : ‑

“4.  The former legal team who acted for the Applicant in the 1st JR was not aware that a viable point could be taken that s.88 of the Magistrates Ordinance, Cap. 227, is unconstitutional for being in breach of the principle of separation of powers enshrined in the Basic Law.  This point was first flagged up when advice was given by Leading Counsel in London on the merits and grounds of appeal against the Judgment of the Honourable Mr. Justice Wright handed down on 9 February 2009 in the 1st JR.

5.  In view of the above, it is not the case that the Applicant or the said legal team had withheld the said constitutional point during the course of the 1st JR and reserved it for argument in a subsequent judicial review application.” (emphasis added)

80.  From this affidavit, it can, on one view, be inferred that the Applicant's legal advisers must be taken to have been fully aware of the possibility of a constitutional challenge, only that it had not been regarded as “viable”. This view is reinforced by the express concession made in paragraph 59 of the Form 86A in the 1st judicial review (see paragraph 28 above). The change of position (as to whether this point was a viable one) came about, it would appear, when Leading Counsel in London took a different view of the merits.

81.  These facts provide no basis whatsoever for justifying what appears prima facie to be an abuse of the court's process. Were every change of opinion on the legal merits by a party's legal advisers (or even the unawareness of a possible legal argument) to justify the proliferation of proceedings leading to delay and disruption, this would constitute an unmanageable, not to mention unjust, state of affairs in the administration of justice. The courts have to bear in mind the position of the parties, the public interest and its own resources having to be shared among all litigants who come before them.

82.  In the end, Mr Mok submitted that any mistakes on the part of the Applicant's previous legal advisers ought not prejudice the Applicant. I repeat here the point (made in paragraph 69 above) that where there is found to be an abuse of the court's process, it is difficult to see how the failure of a party's legal advisers can provide an excuse. After all, it surely must go without saying that responsibility for the actions (or inaction) of a party's legal advisers must ultimately attach to that party; legal advisers do not enjoy an independent status. This is quite apart from the lack of any evidence to point to this conclusion in the present case: for example, the Applicant has not herself suggested this in any affidavit.

83.  For the above reasons, I am of the view it was clearly an abuse bringing the 2nd Judicial Review and, in these circumstances, leave to institute those proceedings ought not to be given. This is enough to dispose of the present appeal.

84.  It is accordingly unnecessary to go into the substantive merits of the leave application. I realize that both parties have dealt with the constitutional challenge at length but, for the reasons stated in paragraph 47 above, it is inappropriate and undesirable to resolve this issue once a finding of abuse has been established. I have assumed for present purposes that the point sought to be raised by the Applicant is an arguable one. No doubt it is an interesting point, although it has to be put in proper context (see paragraph 42 above).

85.  Underlying the Applicant's submissions to this court was a plea that somehow it would be unfair if she were deprived of the opportunity to make a constitutional challenge in the 2nd Judicial Review, particularly when under discussion was her desire to be tried by a jury. There are two answers to this : ‑

(1)  First, there can be no unfairness when the 2nd Judicial Review constitutes, as I have found, an abuse of process on her part.

(2)  Secondly, the assertion of unfairness must be put in context.  The practical effect of the Applicant not succeeding in either of the present judicial reviews is that she will have to face trial in the District Court, a venue she has at no stage alleged to be incapable of providing her with a fair trial (see here the concession made in paragraph 58 of the Form 86A in the 1st judicial review (paragraph 28 above)).

D.  Conclusion

86.  For these reasons, both appeals are dismissed. I would also make a costs order nisi that the Respondent should have his costs in these appeals, such costs to be taxed if not agreed.

Hon Stock VP :

87.  I agree.

Hon McMahon J :

88.  I agree.