MA ZHUJIANG v. SECRETARY FOR JUSTICE

HCAL 129/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 129 OF 2005

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DECISION

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1.  This is the applicant’s application for leave to judicially review two decisions made by the Deputy Judge in the course of a criminal trial in the District Court.

The criminal proceedings

2.  The applicant is one of the two defendants in a criminal trial in the District Court under case no. DCC 388 of 2005.  He faces three charges of dealing with property knowing or having reasonable grounds to believe that the property was the proceeds of an indictable offence.

3.  The trial in the District Court commenced on 5 September 2005 before Deputy Judge Yiu.  The evidence and submissions were concluded on 4 October 2004.  The case was adjourned to 4 November 2005 for verdict.  The applicant has been on bail. 

4.  In the course of the criminal trial, issues arose as to whether certain statements taken from six witnesses in the USA were admissible as evidence.   A voir dire was held to determine their admissibility.  On 8 September 2005, the Deputy Judge ruled: (1) four certificates certifying that the statements were received pursuant to request for assistance issued under section 9 of Mutual Legal Assistance in Criminal Matters Ordinance were admissible under section 77F(5) of Evidence Ordinance, and (2) the statements were admissible as evidence under section 77F(1) of Evidence Ordinance.

5.  On 15 September 2005, the applicant applied to stay the criminal proceedings on the ground that he did not have an opportunity to cross-examine the US witnesses and therefore did not stand to have a fair trial, relying on Article 87 of the Basic Law and Articles 10 and 11 of the Bill of Rights Ordinance.  On 22 September 2005, the Deputy Judge refused to stay the proceedings.

6.  It is common ground that the Deputy Judge had not given reasons at the same time as he made the two decisions, a matter that I shall return to later in this Decision.

7.  As noted above, the trial proceeded. The evidence and submissions concluded on 4 October 2005.  The verdict will be delivered in a few days’ time.

The judicial review proceedings

8.  In the intervening period and on 17 October 2005, the applicant issued the present proceedings, seeking to judicially review the two decisions of the Deputy Judge, namely, the decision to admit the depositions, and the refusal to stay the criminal proceedings.  The applicant also seeks an expedited hearing on the judicial review application.  He has however not moved for any interim relief.

9.  At my direction, the case was listed for an early hearing to deal with the application for leave.  I had directed for the hearing to be inter partes having regard to the fact that there is a pending criminal trial and the applicant’s request to expedite the judicial review application.

The issues

10.  Broadly speaking, two main issues had been argued at the leave application hearing.  The first issue relates to the propriety of the judicial review proceedings when there are ongoing criminal proceedings.  The second issue relates to whether there are arguable grounds for a judicial review application. 

Propriety of the judicial review proceedings

11.  In Mo Yuk Ping v. Secretary for Justice HCAL111 of 2005, Hartmann J observed at paras.9-10 as follows:

“	9.	When a criminal trial has commenced, it is accepted that only in exceptional cases will the trial be interrupted – perhaps for many months – to enable a matter of law to be resolved.  Matters of law constantly arise in criminal trials. Trials after all are legal proceedings. But if rulings of law made by a trial judge are disputed they can be challenged on appeal. The criminal justice system is designed to this end.
	10.	It is also a founding principle of the judicial review jurisdiction that applications for judicial review should in most cases be applications of last resort. Other remedies should first be exhausted.”

12.  Hartmann J’s views that the integrity of the criminal process must prevail and that the availability of an alternative remedy is relevant to the exercise of discretion whether to grant leave was confirmed by the Court of Appeal: CACV 270 of 2005 paras.19, 28 & 30.  The Court of Appeal held that only in exceptional circumstances should criminal proceedings be permitted to be interrupted by an application for judicial review: at para.23.  It further pointed out that it would be very rare that the court would permit its supervisory jurisdiction be invoked to put a halt to criminal proceedings: at para.29.

13.  In paragraphs 20 to 22 of the Judgment, the Court of Appeal also made references to other authorities in which similar views were expressed.

14.  In the present case, the criminal trial is at the final stage awaiting the delivery of verdict.  Admittedly the concern underlying the present proceedings is the applicant’s fear of the risks of a guilty verdict and a consequential custodial sentence.  It is plain that the judicial review proceedings, if permitted to proceed, will be an interruption of the criminal proceedings.   In the circumstances, it is incumbent upon the applicant to make out an exceptional case for granting leave.

15.  In substance, the applicant’s complaint against the first decision is that the Deputy Judge had committed errors of law in admitting into evidence and relying on the four statutory certificates and also the statements taken from the US witnesses.  As to the decision on stay, the applicant’s complaint is that the Deputy Judge erred in law in not recognizing the requirements of procedural fairness enshrined in the Basic Law and the Bill of Rights Ordinance.

16.  Therefore, at the heart of the complaints is the admissibility of statements taken abroad and the application of section 77F of the Evidence Ordinance.  Although foreign deposition does not commonly feature in criminal prosecutions, it cannot be said to be something that rarely arises.   The fact that the applicant’s trial involves issues on admission of foreign depositions does not by itself give rise to an exceptional case justifying interference with the criminal proceedings.

17.  There is also nothing unusual in the nature of the applicant’s complaints, namely, the trial judge’s ruling on admissibility of evidence and exercise of discretion to stay proceedings were wrong as a matter of law.   Not only are these proper subject matters for appeal, which the applicant does not argue to the contrary, but there is also nothing exceptional in the nature or substance of the complaints that would warrant the court granting leave.              

18.  Apart from the absence of exceptional circumstances justifying interference with the ongoing criminal trial, it is not in dispute that there exists an alternative procedure for remedy, that is, an appeal to the Court of Appeal if the applicant were in the end convicted. 

19.  In my view, the matters now complained of by the applicant can be conveniently dealt with by an appeal.    The Court of Appeal in its criminal jurisdiction regularly deals with points of law and constitutional issues in connection with criminal proceedings. 

20.  Further, Mr Wong SC has indicated that if the applicant were convicted, there would be other issues requiring determination at an appeal.  That being the case, it will be more appropriate for all the issues to be resolved together on one occasion and in one forum.   Thus viewed, the alternative procedure of appeal is clearly the correct procedure and the Court of Appeal is the appropriate court to deal with the arguments raised in the intended judicial review application.

21.  By contrast, the Court of First Instance is presently not in a position to properly deal with the applicant’s complaints.  This is because the Deputy Judge has yet to give his reasons for his decisions.  The evidence filed on behalf of the applicant shows that the Deputy Judge, when asked to hand down his reasons for the rulings, had said he would try his best.  This suggests that the Deputy Judge would in due course hand down his reasons and probably do so at the same time as he gives his reasons for the verdict.  Given that the role of the court in a judicial review application is supervisory, it will be premature to determine the legality of the decisions when the reasons for them are not yet available.

22.  Mr Wong SC refers to the judgment of Lord Bingham of Cornhill CJ in R v. Hereford Magistrates Court, ex parte Rowlands [1998] QB 110 at 123, where he said:

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While we do not doubt that ex parte Dowler [1997] QB 911 was correctly decided, it should not in our view be treated as authority that a party complaining of procedural unfairness or bias in the magistrates’ court should be denied leave to move for judicial review and left to whatever rights he may have in the Crown Court.  So to hold would be to emasculate the long-established supervisory jurisdiction of this court over magistrates’ courts, which has over the years proved an invaluable guarantee of the integrity of proceedings in those courts.  The crucial role of the magistrates’ courts, mentioned above, makes it the more important that that jurisdiction should be retained with a view to ensuring that high standards of procedural fairness and impartiality are maintained.

Two notes of caution should however be sounded.  First, leave to move should not be granted unless the applicant advances an apparently plausible complaint which, if made good, might arguably be held to vitiate the proceedings in the magistrates’ court.  Immaterial and minor deviations from best practice would not have that effect, and the court should be respectful of discretionary decisions of magistrates’ courts as of all other courts.  This court should be generally slow to intervene, and should do so only where good (or arguably good) grounds for doing so are shown.  Secondly, the decision whether or not to grant relief by way of judicial review is always, in the end, a discretionary one.”

23.  It is argued that it is unfair to leave the applicant to be convicted and incarcerated when there is clear procedural unfairness, and that this is a suitable case for the court to exercise its supervisory jurisdiction to interfere with the criminal proceedings.

24.  Three things have to be said about this argument. 

25.  Firstly, as pointed out by the Court of Appeal in Mo Yuk Ping v. Secretary for Justice: at para.26, Lord Bingham was dealing with a complaint of unfair trial.  As in the case of Mo Yuk Ping, the complaint in the present case is not that the applicant’s trial before the Deputy Judge was unfair.  The applicant’s complaint is that it is unfair to try him because he cannot cross-examine the US witnesses, which is as a result of the manner in obtaining the statements and also their use in the trial.  

26.  Secondly, as the Deputy Judge has yet to give his reasons for his decisions, it is premature to say that the applicant has clearly got a good arguable case for complaint.

27.  Thirdly, even if leave is granted and with an order for expedited hearing, the judicial review application will not be concluded before the delivery of the verdict, unless the Deputy Judge were persuaded to defer the verdict.  The unfairness perceived by the applicant in the event he is convicted will not be removed.

Arguable grounds for judicial review

28.  I turn now to the second broad issue of whether there are arguable grounds for judicial review.

29.  In respect of the decision to admit the four statutory certificates and the statements of the US witnesses, the applicant’s primary contention is that it is wrong to admit or rely on the statutory certificates without first proving compliance with either section 9(1) of Mutual Legal Assistance in Criminal Matters Ordinance (“MLAO”), namely, the Secretary for Justice had issued a request for assistance to the appropriate authority in the USA, or section 77E of Evidence Ordinance (“EO”), namely, the Court of First Instance had issued a Letter of Request to the relevant US court or tribunal.

30.   Relying on the Court of Final Appeal decision in Liu Sung Wai v. HKSAR (1997-8) 1 HKCFAR 306, the applicant says that the statements are not “depositions” within the meaning of section 77F of EO and the prosecution cannot rely on the section if there is no due compliance with section 9(1) of MILO or section 77E of EO.

31.  It is common ground that at the trial in the District Court, the prosecution did not adduce evidence on the issue of a request for assistance or Letter of Request.  The respondent’s case is that such proof is not required because by reason of section 77F(5) of EO, certificates from the Secretary for Justice or her delegates shall be conclusive proof of the facts stated therein, including the fact that the statements were received by the makers pursuant to a request or a Letter of Request.  There is thus no need to separately prove the issue of a request for assistance under section 9(1) of MILO or a Letter of Request under section 77E of EO. 

32.  The respondent points out that the facts in the present case differ from those in Liu Sung Wai in which the prosecution had abandoned reliance on the statutory certificate and section 77F(5) of EO.  It is further argued that if the applicant wishes to challenge whether a request for assistance or Letter of Request had been duly issued, the proper course is to apply for a certiorari to quash the four certificates: see Liu Sung Wai at 653D-G.                 

33.  As an alternative and further submission, the applicant says that the prosecution failed to prove that it was not reasonably practicable to secure the attendance of the US witnesses at the trial and that the applicant was in no position to cross-examine them during the taking of statements as there was then no charge against him, the previous set of charges having been withdrawn to await the taking of depositions in the USA.

34.  As observed by Mr Lee, this is a challenge to the sufficiency of evidence for the exercise of discretion and the actual exercise of discretion by the Deputy Judge under section 77F(1) of EO.  In this regard, the court in its supervisory jurisdiction has always been mindful of the fact that it does not sit as an appellate court

35.  As for the decision refusing to stay the criminal proceedings, the applicant’s contention is that the examination of the US witnesses did not take place before a court or tribunal and that he did not have an opportunity to cross-examine the US witnesses.  It is said that these constitute breaches of the right to fair trial by judicial organs and the right to cross-examination provided by the Basic Law and the Bill of Rights Ordinance.

36.  For the respondent, it is submitted that Articles 10 and 11 of the Bill of Rights Ordinance do not apply to the process of obtaining evidence for the trial, relying on AG v. Lorraine Esme Osman  & Others (1992) 1 HKCLR 35.   Additionally, it is said that the applicant had not been denied cross-examination of the US witnesses.   The respondent further argues that, even if there was a breach, it is only in very rare cases, of which the applicant’s case is not, that the court will grant a stay.

37.  When dealing with this second issue of whether there are arguable grounds for judicial review, I am conscious that the Deputy Judge has yet to give his reasons for the decisions under challenge as well as the verdict.  While the written submissions relating to the two decisions had been exhibited to the applicant’s affirmation, the transcript of the relevant parts of the criminal trial, including the oral testimonies of the police officers, is not before the court.  In my view, not only it is premature, but also it is inappropriate for this court to dwell into a discussion of the merits of the applicant’s challenges to the decisions.

38.  It is sufficient for me to indicate that I have taken into account the potential merits of the grounds for the judicial review application in considering the first issue of whether it is apt to institute the present proceedings.   I am not persuaded that they are so overwhelming that notwithstanding the matters canvassed in the preceding section, leave to apply for judicial review should be granted.        

Conclusion

39.  For the reasons indicated above, the application for leave to judicial review is refused. 

40.  Applying the normal rule of costs follow event, there is an order nisi that the applicant pays the respondent the costs of these proceedings, save and except the costs of the respondent’s application for adjournment of the hearing, to be taxed if not agreed.  The applicant should not bear the respondent’s costs of the unsuccessful application for adjournment.