CHIK WEN FEI AND ANOTHER v. SECRETARY FOR JUSTICE

HCAL 20/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 20 OF 2008

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J U D G M E N T

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I.     INTRODUCTION

1.  Mr. Chan and Ms. Chik (together, the Applicants) are husband and wife.  They seek leave for judicial review against a Ruling of Deputy District Court Judge M. Chow dated 13 December 2007. 

2.  By her Ruling Judge Chow refused a permanent stay of criminal proceedings against the Applicants for offences relating to tax fraud between 1994 and 2006.  The Applicants say that Judge Chow was wrong to have determined as she did.

II.    BACKGROUND

3.  The offences of which the Applicants are accused may be tried either summarily or upon indictment.  See Inland Revenue Ordinance (Cap.112) s.82.

4.  On 29 June 2006 the Inland Revenue Department laid 20 separate informations in relation to the Applicants with the Eastern Magistracy.  As a result, on 30 June 2006, 20 summonses were issued: 10 against Mr. Chan and 10 against Ms. Chik.

5.  The Applicants attended at the Eastern Magistracy on 10 August 2006 when their cases were mentioned.  The Prosecution then submitted 15 consolidated charges and 1 additional charge.  No plea was taken.  But the 16 charges were read out to the Applicants who acknowledged that they understood what had been stated to them.  The hearing was adjourned to 31 August 2006.

6.  On 31 August 2006 the Prosecution presented papers for the transfer of the cases to the District Court.  The magistrate made an order accordingly.

7.  Before Judge Chow the Applicants submitted that there should be a permanent stay of criminal proceedings because:-

III.   DISCUSSION

A.    Want of Jurisdiction

8.  The Applicants’ argument is essentially as follows:-

9.  In support of their argument, the Applicants cited Magistrates Ordinance (Cap.227) (MO) s.93.  That states:-

“Where an indictable offence is triable summarily:-

(a)     the procedure shall, until the magistrate assumes the power to deal with the offence summarily, be the same in all respects as if the offence were to be dealt with throughout as an indictable offence, but when and so soon as the magistrate assumes the power to deal with the offence summarily the procedure shall be the same from and after that period as if the offence were an offence punishable on summary conviction and not on indictment, and the provisions of this Ordinance relating to offences punishable on summary conviction shall apply accordingly.”

10.  In her Ruling Judge Chow pointed out that MO s.93 had no application in the present situation.  The Magistrate did not take any plea from the Applicants at the hearings on either 10 or 31 August 2007.  The Magistrate had therefore never assumed the power to deal with the offences summarily.  The issue of the 20 summonses by the Prosecution could not somehow be regarded as an assumption by the Magistrate of the power to deal with the offences summarily.

11.  Judge Chow further observed that, in any event, the Prosecution could (as was done here) always apply for the transfer of the cases to the District Court at any stage before sentence.  In such circumstances, the Magistrate would not have had the power or discretion to retain the case.  It would have been mandatory to transfer upon the Prosecution’s application.  See MO s.88(1)(a).

12.  In this application, Mr. Ching Y. Wong SC (appearing for the Applicants) essentially repeats the arguments advanced before Judge Chow summarised above. 

13.  But I am unable to fault Judge Chow’s reasoning.  The Applicants’ case on a want of jurisdiction in the District Court seems to me unarguable.

B.    Abuse of process

14.  The Applicants complain of the following alleged abuses:-

15.  In her Ruling, Judge Chow first noted that the purpose of an arrest was to bring the Applicants to Court to face charges.  Similarly, the purpose of a summons is to bring defendants to Court to be dealt with in accordance with the law (see MO s.8(1A)). 

16.   The summonses had been served on the Applicants in July 2006.  The Applicants voluntarily attended before the Magistrate on the requisite date as directed by the summonses. 

17.  There was thus no need for an arrest.  It cannot have been an abuse for there to have been no arrest to compel the Applicants to do that which they did voluntarily.

18.  Second, Judge Chow observed that what is important is that the Applicants should know the nature of the allegations being made against them. 

19.  The particulars of the 15 consolidated charges read out to the Applicants on 10 August 2007 were identical to the information in the 20 summonses. 

20.  As far as the 16th charge was concerned, Judge Chow thought that the Prosecution was entitled to put that to the Applicants at the 10 August 2007 hearing.  That was because by the summonses the Applicants had been directed to appear before the magistrate to be “further dealt with according to law” (see MO s.8(1A)).  The putting of an additional charge constituted “further dealing with the Applicants according to law”.

21.  The Applicants (who were legally represented) expressly acknowledged on 10 August 2007 that they understood the 16 charges read to them. At all times then the parties were plainly dealing (and realised that they were dealing) with the 16 charges and not the 20 summonses.

22.  Thus, on 10 August 2007 the Applicants fully appreciated the substance of the allegations being made against them through the 16 charges.  It cannot be said then that there was any abuse of procedure in those 16 charges being transferred to the District Court.  Nothing was done in “disguise”.

23.  Third, Judge Chow commented that the purpose of granting bail was to ensure that the Applicants attended court.  Here the Applicants and their lawyers when applying for bail must likewise have fully apprehended that the Applicants were facing the 16 charges, not the 20 summonses.  There can have been no abuse of process then in the grant of bail to secure the Applicants’ appearance in the District Court.

24.  Much play had been made in submission (Judge Chow noted) of the use of summonses numbers in the course of the proceedings so far.  Those numbers (Judge Chow observed) were “clearly being used by the judicial clerks ... for administrative and reference purposes” only.  Nothing of significance to the substance of the Applicants’ cases could be inferred merely from the use of the numbers.

25.  Before me Mr. Wong repeats the same arguments made before Judge Chow.  He also refers me to MO s.8(1A) which deals with the issue of summonses in situations involving complaints or informations in which a magistrate has power to convict summarily.

26.  But again I believe Judge Chow’s reasoning to be impeccable.  I find no basis for an arguable case of abuse of process. 

27.  I add that I do not believe MO s.8(1A) affects the validity of Judge Chow’s reasoning in any way.  Nor, for that matter, do I find any abuse of process in the consolidation of charges in the circumstances here.  Mr. Wong says that “summonses” were wrongly consolidated, not “charges”.  But that strikes me as pedantic in the extreme, ignoring the practical reality of what happened.

C.    Long delay

28.  In her Ruling Judge Chow stated that there was no general time limit within which proceedings have to be commenced where an alleged offence is indictable.  She thought that if delay was to be reckoned, then time should be counted from 7 July 2006 when the bailiff served the 20 summonses on the Applicants.

29.  In any event, Judge Chow reviewed the history of the Inland Revenue Department’s investigations into the Applicants’ tax affairs. She concluded that the reason why the investigations took several years was because of their complexity and the lack of cooperation by witnesses.  She also observed that there were documents and books from which the Applicants could refresh their memories.

30.  She therefore found that there had been no inordinate delay in any case.

31.  Mr. Wong does not seek judicial review of Judge Chow’s conclusions on delay.

IV.   CONCLUSION

32.  Leave to apply for judicial review is refused.  The Applicants have no arguable case for judicial review.

33.  Finally, I draw attention to the recent decision of the Court of Appeal in Yeung Chun Pong and others v. Secretary for Justice CACV No. 330 of 2006, 9 January 2008.  There the Court of Appeal stressed that it should only be in exceptional circumstances that the High Court will grant judicial review of interlocutory decisions in ongoing criminal proceedings.

34.  The Court of Appeal was concerned that unmeritorious applications to stay ongoing criminal proceedings on the grounds of abuse of process are being made “far too frequently”.  The Court of Appeal warned that “tribunals of first instance should ever be aware of the exceptional circumstances in which applications for a stay may be granted”. 

35.  Given that warning from the Court of Appeal, the judicial review of refusals of a permanent stay should be even rarer. In this case, I see no exceptional circumstances justifying the grant of leave for judicial review of Judge Chow’s refusal of a permanent stay.  In light of Yeung, I would have refused leave on this basis alone.