RE PAN CHI KEUNG AND OTHERS

HCMP001455/1987

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

ACTION NO. 1455 OF 1987

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DATES OF HEARING: 10th, 11th, 13th, 14th and 17th August, 1987.

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JUDGMENT

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1. This is an application by PAN Chi-keung, WONG Yiu-lun and CHAN Kwok-fai (“the applicants”) under an Order Nisi for Habeas Corpus made by Garcia J. on 15th July, 1987 that they be unconditionally released from the restraints on their liberty in respect of Criminal Case No. 201 of 1986 (“Case 201”).

2. In very general terms, the applicants were jointly charged together with other named and unnamed persons with one count of murder before a High Court judge (“the judge”) and jury (“the jury”).  On 23rd May, 1987 the jury returned a verdict of “not guilty” by a majority.  The judge then made a “formal” order (“the Order”) that the applicants, “having been found not guilty of any offence” be released and discharged.  The applicants were, on 15th July, 1987 arrested in respect of Case 201 which the Crown maintains has not yet been “validly disposed of”.

3. This application raises important constitutional questions.

4. For a proper understanding of the issues it is necessary to refer to the facts which led to the arrest of the applicants on 15th July, 1987.

5. On 21st May, 1987 before the judge commenced his summing-up and in the absence of the jury, one of the counsel for the applicants asked the judge how he intended to direct the jury on the question of unanimity in returning their verdicts.  The judge answered as follows:-

“It is one I know there is even sore division among the judges, but it seems to me that if the law requires that a unanimous verdict is required of either guilty or not guilty to Murder, then it must logically follow that they cannot consider a verdict of manslaughter until they have been unanimous in finding him not guilty of Murder ... Let me just ... I’ve put here some notes: to find a person guilty or not guilty of murder, the law in Hong Kong requires a jury to give a unanimous verdict.  It is possible for you, although I hope you will come to a unanimous verdict, if you do at the end of the day find -- that all seven of you find that he is not guilty of murder, you may bring in a majority verdict of manslaughter, and that is a majority of not less than 5 to 2.”

6. At no stage during this discussion was any reference made by counsel to Section 24(4) of the Jury Ordinance, Cap. 3 which reads:-

“If any person is arraigned for any offence punishable with death, the jury must be unanimous in their verdict of guilty or not guilty unless a majority, consisting of: (a) where a jury of 7 persons has been sworn, not less than 5 of them, find such person guilty of a lesser offence in which case the finding of any such majority shall be the verdict and sentence shall follow accordingly.”

Section 26 of the Jury Ordinance reads:-

“The verdict of the jury shall in all cases be given by the foreman in open court and in the presence of all the jury, and, if in a criminal proceeding, in the presence of the person accused, and shall thereupon be recorded by the Registrar or Clerk of the court who shall, before taking the verdict, ask if they are all or by what majority agreed thereon, and whether they find for the plaintiff or the defendant, and, in the case of a person accused, whether they find such person accused guilty or not guilty, and the jury shall either pronounce a general verdict for the plaintiff or defendant, or of guilty or not guilty, or else shall return a special verdict finding the facts of the case: provided that the jury may acquit any person accused of a part of the charge against him, and find him guilty of the remainder.”

7. The jury returned and the judge began his summing up.  When the judge was about to direct the jury on their approach to the verdicts, counsel for the Crown handed up to the judge the case of The Queen and TAM Chi- pang and Others (Criminal Appeal No. 119 of 1985) and said the judge need only look at page 25 and that all counsel agreed that that represented “the proper position”.  The judge then directed the jury as follows:

“As you retire now to deliberate on your verdict, let me just say a few words about it. To find a person guilty of murder in Hong Kong, the law requires that you need to give a unanimous verdict.  In other words, we would require all seven of you to reach the same verdict if it were guilty of murder.  It is possible for you - although I do hope that throughout we have unanimity between you, but it is possible if you wish to go on and consider a verdict of manslaughter - this is against any individual accused - that a majority of you of not less than five to two, and that would be five to two or six to one, that that majority find the defendant guilty of manslaughter.  So a unanimous verdict please if it is guilty of murder, but if you wish to go on and consider the offence of manslaughter, it may be by a majority of not less than five to two.”

The judge, with respect, did not direct the jury that they had to be unanimous in returning a verdict of not guilty of murder unless a majority of not less than five found an accused guilty of manslaughter.

8. After that direction, the judge continued his summing-up.  Just before the judge concluded his summing-up at 2.20 p.m. on 21st May, 1987 he told the jury:-

“You will now be together until you reach your verdicts, or until you find it impossible to reach any verdicts when you will have to be discharged as a disagreeing jury.”

9. At about 7 p.m. the jury were recalled to be asked by the judge for an indication of how long they would need to consider all their verdicts.  The foreman replied that they needed considerably more time and asked for “re-clarification of the exact definitions of manslaughter and murder in this case possibly with examples as before so we can possibly take it down to clarify in our minds”.  The judge further directed the jury, and, inter alia, told them:-

“Let me try and repeat within the context of this case my directions as to the law.  I said that if you were satisfied beyond a reasonable doubt that any of these accused joined in a concerted attack on one or more of the intended victims either using a weapon himself or knowing or believing that such weapons as stools, iron pipes would be or were being used by others with the common intention to cause really serious bodily harm and that in further-ance of the common intent and design of the enterprise, one of the intended victims was killed, then that accused would be guilty of murder.  I then went on to say that if you were satisfied of all those things but you were unsure as to whether it was the common intent to cause really serious bodily harm but something less, then a party to that particular venture would not be guilty of murder but, instead, of manslaughter.”

Later the judge was interrupted at some length by counsel during which a juror said:-

“Juror: He is liable for a charge of murder if he knows that serious harm might occur.

Court: Really serious bodily harm.

Juror: But if he knows that harm might occur, not serious harm and then the fellow dies.

Court: It’s not murder.

Juror: It is manslaughter.

Foreman: Considering the possibility to say that you knew that 10 or 20 people were going to be there for one person, then you would assume that he was not going to get light harm.

Court: That’s really going to be for you to decide.”

10. I mention the above only to show that manslaughter was, depending on the views taken by the jury, very much an issue.

11. The jury retired again at 7.50 p. m on the 21st May, 1987 At 4.55 p. m on the following day the jury returned.  This is what transpired in relation to the three applicants.

“Clerk: Now, on the count of murder against the 3rd accused, PAN Chi-keung, have you reached a verdict? Please answer ‘yes’ or ‘no’.

Foreman: Yes.

Clerk: Are you unanimous? Please answer ‘yes’ or ‘no’.

Foreman: No.

Clerk: By what majority?

Foreman: 6 to 1.

Clerk: What is your verdict?

Foreman: Not guilty.

Clerk: Now, on the count of murder against the 5th accused, WONG Yiu-lun, have you reached a verdict? Please answer ‘yes’ or ‘no’.

Foreman: Yes.

Clerk: Are you unanimous?

Foreman: No, we are not.

Clerk: By what majority?

Foreman: 5 to 2.

Clerk: What is your verdict?

Foreman: Not guilty.

Clerk: Now, on the count of murder against the 6th accused, CHAN Kwok-fai, have you reached a verdict? Please answer ‘yes’ or ‘no’.

Foreman: Yes.

Clerk: Are you unanimous? Please answer ‘yes’ or ‘no’.

Foreman: No.

Clerk: By what majority?

Foreman: 6 to 1.

Clerk: What is your verdict?

Foreman: Not guilty.

12. The judge and counsel then discussed matters not relevant to the present application.  The following then transpired.

“Mr Hemmings: My Lord, I wonder whilst this is being decided whether those defendants who have been acquitted could be released from the dock?

Court: Very well, I’ll make that formal order.  The 3rd, the 5th, the 6th accused having been found not guilty of any offence are released and may be discharged from the dock.”

13. When the jury returned their majority verdicts, the judge had a discretion as to what he should do; he could have told the jury that majority verdicts of not guilty of murder were not acceptable and directed them to resume their deliberations, or he could have discharged the jury for being unable to reach their verdicts.  He did not exercise either of those discretionary powers.  Instead he accepted the jury’s verdict and made the order.

14. By a letter dated 8th June, 1987 (and copied to the Director of Legal Aid) the Deputy Crown Prosecutor (“the DPP”) wrote to the Registrar of the Supreme Court as follows:-

“High Court Case No. 201 of 1986

The 3rd, 5th and 6th accused

I enclose a copy of the indictments in this matter and a draft transcript of part of the proceedings on 23rd of May kindly provided by you.  It appears from this transcript that the above-named accused were each acquitted on the First Count of Murder in two cases by a majority of 5 to 2 and in one case by a majority of 6 to 1.  I respectfully refer you to Section 24 of the Juries Ordinance, Cap 3 and note that the jury was discharged and the Crown did not apply for an order for re-trial against these accused.

The Crown contends that Count 1 against the above-named accused has not been lawfully determined and I hereby make an application for this count against these accused to be listed for hearing in the High Court.  The Crown undertakes to file an amended indictment at a later date restricted to the one count of Murder against these three accused.”

15. By a letter dated 12th June, 1987 and copied to the Director of Legal Aid, the Registrar informed the DPP that he had listed Case 201 before the judge on 22nd June, 1987.

16. On 22nd June, 1987 the DPP and counsel for the applicants appeared before the judge.  Defence counsel applied for an adjournment which application was resisted by the Crown.

17. One of the applicants’ counsel submitted the judge had no jurisdiction as a matter of law.  There was also some reference as to whether the judge was functus officio.  Counsel for another applicant said that the applicant he represented should be treated as an acquitted person and free to come and go until such time as any (sic) court made a different order.

18. He asked the judge to provide the parties with a transcript of the discussions that took place before the judge in the absence of the jury and of “certain agreements” that were reached between counsel and endorsed by the judge and the judge’s direction to the jury following those discussions because “it is not at all clear what verdicts were required and obtained from the jury”.

19. The DPP referred to his letter to the Registrar of 8th June, 1987 and contended that the count of murder against the applicants had not been lawfully determined, that the trial (Case 201) should simply be relisted by the Registrar before a judge of the High Court, that a jury be empanelled and the trial proceed.

20. Later, the DPP said:-

“What flows from the Crown’s submissions is that the trial was a nullity as far as these defendants are concerned, that initially your Lordship is not functus officio for the purpose of making the order that is called for under the Ordinance for a retrial.”

21. I think, but I am not sure, the Crown was there relying on Section 27 of the Jury Ordinance which reads:-

“Whenever the jury in any case have withdrawn and been kept apart for the purpose of considering their verdict, and have not returned the same before all the other cases for trial at the same sitting or session have been disposed of, or when it sufficiently appears to the court that the said jury cannot agree upon a verdict, and that there is not such a majority as aforesaid agreeing, the court shall discharge such jury, and shall cause a new jury to be empanelled and sworn and charged with any person accused, and the action, suit, information, or indictment shall be tried as if such first jury had not been empanelled.”

22. In the event, the judge made an order that the Crown’s application be adjourned and set down before a judge of the High Court as soon as practicable after 4th August, 1987.

23. By arrangement, at 10 a.m. on 15th July, 1987 the applicants (accompanied by their legal advisers) attended the Regional Crime Unit at Yaumatei where they were placed under arrest by the police, and held in custody on the charge of murder in Case 201.  On the same day the applicants applied for leave to issue a Writ of Habeas Corpus forthwith and for an Order that the applicants be released forthwith or be granted bail on such terms and/or conditions as the Court deem just.

24. On the same day counsel for the applicants and for the Crown (the applicants being present) appeared before Garcia J. who granted the applicants leave to issue a Writ of Habeas Corpus.  Garcia J. granted the applicants bail on terms and ordered that the applicants serve the Writ on the Attorney - General and the Commissioner of Police and he adjourned the case for a hearing for directions before the Chief Justice in consultation with counsel’s diaries.

25. The Writ was personally served on the DPP and on the Commissioner of Police.

26. On 22nd July, 1987 counsel for the applicants and for the Crown appeared before Garcia J. who ordered, inter alia, that the Writ be returnable before this court on 10th August, 1987 and that the hearing of the return to the Writ be heard and determined before the hearing of the application for a retrial by the Crown in Case 201.

27. Notices pursuant to Order 54 Rule 6 were served on the Attorney-General and the Commissioner of Police.

28. The Commissioner of Police filed a return on 11th August, 1987 which was amended on 13th August, 1987.

29. In that amended return he stated that the applicants were arrested on 15th July “on the basis that they were reasonably suspected of being guilty of an offence of murder” and that the cause and purpose of those arrests was to secure the attendance of the applicants at the hearing of an application by the Crown in Case 201 “for the disposal of a count of murder against each of the applicants”.

30. Mr Keane strenuously objected to the return in its original and amended forms.  He contended, inter alia, that the Commissioner of Police could not “reasonably” have suspected the applicants of being guilty of murder in Case 201 when they had been acquitted by a verdict of the jury and the Order of the judge in that case.

31. Mr Keane contended that the jury had returned “unequivocal and complete verdicts of not guilty” in favour of the applicants.  I do not agree.  The verdicts of the jury were defective.  They should have been unanimous and even with a unanimous verdict, where the alternative verdict of manslaughter was left to the Jury by the judge, they should have been asked to complete their verdicts.

32. As Darling J. said in Rex v. Baxter (1913) 9 Cr. App. R. at page 63:-

“The jury were asked if they found the prisoner guilty of murder; they said: ‘Not guilty’.  Then they were asked if they found her guilty of manslaughter.  It seems to us that it was right to put this question to them, for the judge finished his summing-up with a reference to manslaughter; it is plain that, when they said she was not guilty of murder, they had not exhausted the questions they had to decide.”

33. This case was quoted with approval by the Privy Council in Nasralla’s case.(infra).

34. Mr Duckett for the Crown submitted that the jury’s verdict was invalid as not being in compliance with Section 24(4) of the Jury Ordinance and that the judge’s Order, based on that verdict was, in effect, also invalid and that, therefore, the whole trial was a nullity.

35. Mr Duckett cited the Privy Council case of The Director of Public Prosecutions and Patrick Nasralla (1967) 2 A.C. 238 (not dissimilar to Case 201 except that the jury in that case, having returned an incomplete majority verdict, were discharged by the trial judge) in which their Lordships quoted with approval Cockburn C.J. in Reg. v. Charlesworth (1861) 9 Cox CC at page 53:-

“It appears to me, when you talk of a man being twice tried, that you mean a trial which proceeds to its legitimate and lawful conclusion by verdict; that when you speak of a man being twice put in jeopardy, you mean put in jeopardy by the verdict of a jury, and that he is not tried, that he is not put in jeopardy until the verdict comes to pass, because if that were not so, it is clear that in every case of defective verdict a man could not be tried for a second time.”

36. Though not quoted in Nasralla’s case Cockburn C.J. went on to say in Charlesworth’s case:-

“And yet it is admitted that in the case of a verdict palpably defective, although the jury have pronounced about the case, yet if the verdict be defective, it will not avail the party accused, if he is a second time put on his trial (and see Adeline Ione Robinson (1975) 60 Cr.A.R. p108).”

37. At page 254:-

“It will be found that whereas the jury’s right to deliver a general verdict as against a special has been maintained, their right to deliver a general verdict as against a partial has, their Lordships think, fallen into disuse.”

At page 256:-

“On the contrary, the practice has been developed in a way which can be explained only on the footing that a jury are expected to accept a direction to consider lesser or different offences arising out of a count in the indictment in the same way they accept the direction to consider the offence stated in the count.

The practice of rolling up into one count a number of different offences based on the same facts has been found a convenient way of shortening indictments.

If it meant that a jury could for any reason that seemed good to them refuse to consider an alternative verdict, with the result that an accused would be acquitted without trial, or if it meant that where the jury did consider it and disagreed, the result would be an acquittal, the practice would never have been formed.

38. My first duty, as I perceive it, is to determine whether the judge’s Order is valid and even if it is voidable whether I have any jurisdiction to review, set aside or otherwise interfere with the Order and even if I have jurisdiction whether I am functus officio.

39. The High Court is a superior court of record and its judges exercise, unlike magistrates and District Court judges, unlimited original civil and criminal jurisdiction.  (See Supreme Court Ordinance, Cap. 4 Sections 3 and 12).

40. I am firmly of the view, and so find, that once a High Court judge makes a final order, such an order is valid until it is set aside.  As O’Connor J. said in CHIU Ming-sum and Michael Ma Wing and Others (1981) H.K.L.R. at page 72:-

“In my opinion, Mr Commissioner Gittins, sitting as a judge of the High Court, could not make an order that was void.  An order made by a High Court judge is good until set aside.  It may be voidable but cannot be void:”

41. Although O’Connor J. was there dealing with a civil case, I think there can be no doubt that what he said applies with equal force to a criminal case in the High Court.

42. In Re Racal Communications Ltd (1981) A.C. 374 the Director of Public Prosecutions, having reasonable cause to believe that an officer of Racal Communications Ltd (“the Company”) had committed an offence in connection with the management of the company’s affair’s, made an ex parte application to a High Court judge in Chambers under Section 441 of the Companies Act 1948 for an order authorizing a police officer and a civil servant to inspect all books, records, correspondence, etc. belonging to or under the control of the company.  The High Court judge dismissed the application holding that “an offence in connection with the management of the company’s affairs” within the meaning of Section 441 of the Act was limited to “a breach against the laws regulating the management of a company’s affairs”.  The Court of Appeal reversed his decision holding that the High Court judge had misconstrued the Act and it said it had jurisdiction to reverse the High Court judge’s decision because he had made am error of law which went to the jurisdiction.  On appeal to the House of Lords, their Lordships allowed the appeal.  Several passages in the judgment of the House are pertinent.  Lord Diplock at page 381 said:-

“My Lords, this summary way of disposing of the question of jurisdiction appears to me to overlook (1) the distinction between the appellate juris-diction of the Court of Appeal and the original jurisdiction exercisable only by a High Court judge (as successor to the old Court of King’s Bench) to review decisions of inferior tribunals for error of law, by use of the prerogative writs of certiorari, prohibition and mandamus which have now been replaced by orders obtainable on application for judicial review, (2) the distinction between courts of law and tribunals or courts exercising administrative functions which, in another of its aspects, has recently been considered by this House in Attorney-General v. British Broad-casting Corporation (1981) A.C. 303; and (3) the distinction between the High Court and an inferior court of law.

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only.  The court has no original jurisdiction.  It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review.”

43. Lord Diplock at page 384:-

“The High Court is not a court of limited jurisdiction ... There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review.  Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court.”

Lord Salmon at page 386 said:-

“The Court of Appeal, however, relied strongly on the decision of your Lordship’s House in Anisminic Ltd v. Foreign Compensation Commission (1969) 2 A.C. 147.  That decision, however, was not, in my respectful view, in any way relevant to the present appeal.  It has no application to any decision or order made at first instance in the High Court of Justice.  It is confined to decisions made by commissions, tribunals or inferior courts which can now be reviewed by the High Court of Justice, just as the decisions of inferior courts used to be reviewed by the old court of King’s Bench under the prerogative writs.  If and when any such review is made by the High Court, it can be appealed to the Court of Appeal and thence, by leave, to your Lord-ship’s House.

The jurisdiction of the court of Appeal is defined by statute.  It has no jurisdiction to make a judicial review of a decision of the High Court.  Its power is to hear and determine an appeal from any decision or order made by the High Court ...”

44. Lord Edmund-Davies at page 388 said:-

“The most that can properly be said is that, in exercising his undoubted jurisdiction to interpret the wording of section 441(1), the learned trial judge may have fallen into error.  The question that arises, accordingly, is whether an error of law made within his jurisdiction by a High Court judge can properly be the subject matter of consideration by the Court of Appeal.

If the proper view of the action taken by the Court of Appeal in the instant case is that they purported to exercise on their own behalf that jurisdiction which they concluded Vinelott J. had ‘renounced’, they were in effect conducting a judicial review of a High Court decision.  But it has to be said that they had no power to do that.  The Court of Appeal is a member of the Supreme court of Judicature, but it is not a member of the High court’ (per Scrutton L.J. in Re Carroll (1931) 1 K.B. l04, 107), and all applications for judicial review must be made to a Divisional Court of the Queen’s Bench Division and in the manner prescribed by R.S.C., Ord. 53, r. 3.”

Again, at page 390:-

“Nor was I able to follow why, echoing Eveleigh L.J. in Pearlman (1979) Q.B. 56, 79, he submitted that Vinelott J. ‘asked himself the wrong question’.  If the learned judge was to arrive at a determi- nation at all he had to construe section 441(1) and, in particular, the phrase ‘an offence in connection with the management of the company’s affairs…’ that exercise was certainly within his jurisdiction and, even if he arrived at a wrong conclusion, he did not exceed it.  And, in the law as I believe it is, and not in the law as the learned Master of the Rolls considers it should be, the only way of dealing with any error of law within the jurisdiction of Vinelott J. sitting in the High Court, was by way of appeal.”

45. Lord Scarman, at page 392 to 393:-

“The High Court is not an inferior tribunal.  It is one of Her Majesty’s courts of law.  It is a superior court of record.  It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review which has taken their place.  It has inherited the jurisdiction of the superior common law courts of first instance.

The Court of Appeal has no original supervisory jurisdiction over the High Court comparable with the High Court’s long established supervisory jurisdiction over inferior tribunals.  Indeed the Court of Appeal’s jurisdiction over the High Court is itself the creature of statute.  My Lords, I am not prepared to invoke the Anisminic principle as an aid to the construction of a provision excluding appeal from the High Court to the Court of Appeal.  The analog sought to be drawn between the appellate jurisdiction of the Court of Appeal over the High Court and the supervisory jurisdiction of the High Court over inferior tribunals is false, based as it is upon a comparison of incomparables.”

46. In my view, it would be wholly contrary to law for a judge of the High Court to exercise, in effect, a supervisory jurisdiction over a judge of co-ordinate jurisdiction.  I am of the opinion that I have no jurisdiction to review, set aside or otherwise interfere with, the Order made by the judge.

47. Mr Keane cited several authorities to show that even the Court of Appeal has no jurisdiction to set aside an order of acquittal by a High Court judge.  It would be inappropriate for this court, and unnecessary for the determination of this application, to comment on the powers of an appellate court and whether the judge in making the Order, having regard to the circumstances in which he made it, was acting outside his jurisdiction.

48. I move now to the question of functus officio.

49. In The Attorney-General and Wu Kam-ming (1987) H.K.L.R. 362, the Court of Appeal held it was functus officio after the Attorney-General had obtained from a single judge leave to apply out of time to the Court of Appeal for a review of sentence.  The respondents filed a motion to set aside the order of the single judge in that the application for leave should have been made inter partes, that the single judge had no jurisdiction to grant leave and that no explanation had been given for the delay in filing the application for review.  The Court of Appeal held it was functus officio, being bound by the decision of the single judge (under Section 35(2) of the Supreme Court Ordinance) who, in granting leave, had exercised the power vested in that court.  Accordingly, the Court of Appeal held it had no jurisdiction to entertain the motion to set aside the single judge’s decision.

50. In The Queen and Man Lim-ping (Criminal Appeal No.  572 of 1984) which is unreported, the Court of Appeal held that a High Court judge was functus officio after he had made an order that a large sum of money found in the accused’s home should be returned to the accused (“the appellant”).  The appellant pleaded guilty to one count of possession of dangerous drugs for the purpose of unlawful trafficking.  Briefly, the appellant was in a car which was intercepted by the police who found next to the appellant a bag containing more than three kilograms of heroin.  The appellant was then taken to his home and nothing of significance was found except for two sums of money totalling $226,640.  On the 14th February, 1984 after the appellant had been sentenced the High Court judge made an order for the confiscation of the drugs.  Counsel for the appellant then asked that the money be returned to the appellant’s family to whom it belonged.  The Crown said it had no objection and the High Court judge said, “Very-well.” In subsequent proceedings, the High Court judge said he made an express order in open court that the money be returned to the appellant’s family and the Crown conceded that he had.

51. Shortly after the High Court judge had made the order referred to, he had second thoughts.  He hastened to reconvene he court but the parties had left.  He “saw fit to inform the Attorney-General’s Chambers of his second thoughts”, and this led to an application by the Crown to have the money forfeited to the Crown.  At the hearing of that application the appellant’s counsel argued that a High Court judge had no power to review his own decision.  At this point the High Court judge said:-

“There doesn’t seem to be any real authority on the point.  I consider that it would be absolutely ridiculous if, having appreciated that something was wrong with an order which had been made in court, I was not entitled, on 1eaving the court and going into chambers, to change my mind; and if I had gone back into court at that stage while counsel was still there, obviously in my view, there could have been - it would be ridiculous, and surely the courts of law are not ridiculous, but it would be ridiculous if I could not have made a variation of the order which I have made on the grounds that there was something disturbing me about the order which it was proposed that I should make.”

52. The appellant then gave evidence that the money in his house had no connection whatsoever with his activities as a drugs courier and that his main occupation was that of a jade trader in which trade cash transactions were required.  His evidence was disbelieved by the High Court judge who ordered the money to be forfeited to the Crown.

53. Before the Court of Appeal the Crown repeated the argument that a High Court judge had always the power to review his sentence.  The Court of Appeal said:-

"With due respect we do not accede to this argument.  It is true that in the case of a magistrate or a district court judge both have power of review by virtue of statutory provisions.  There has been no statutory power of a High Court judge to review his sentence.

In the present case, the learned judge made an order in open court to return the money to the applicant on 14th February, 1984.  In our opinion, in the absence of statutory authority, he had no jurisdiction to revise his order.  In our opinion, once the learned judge had made his order he was functus officio.”

54. It is not out of disrespect to counsel that I do not propose to refer to the numerous other authorities which were cited to me.

55. To recapitulate, I hold that the judge’s Order is valid and remains effective unless set aside by a court of appeal.  That even if the judge’s Order is voidable I have no jurisdiction to set aside or in any way to interfere with the Order made by the judge.  Mr Duckett submitted I need not set aside the Order - I could simply direct that a jury be empanelled and the trial proceed.  But if I were to do that I would be ignoring the judge’s Order - I would, in effect, be pretending the judge never made the Order.  I cannot do that.

56. Even assuming I had jurisdiction, I hold that the judge is functus officio in respect of Case 201 and, a fortiori, so is this court.

57. It follows from what I have said that the arrest of the applicants was unlawful.

58. I do not at all agree with Mr Keane’s criticism of the return made by the Commissioner of Police.  He was, without doubt, acting bona fides and on legal advice from the Crown which was based on a mistaken view of the law.  The Crown, too, was acting in good faith in trying to bring Case 201 to a “legitimate and lawful” conclusion.

59. I order that the applicants be unconditionally discharged subject only to an order or judgment of an appellate court.  I discharge the applicants from their bail and order that monies paid by way of bail be returned to the applicants and their sureties.

I certify that to the best of my skill and ability the foregoing is a true transcript of the shorthand notes taken of the judgment in the above proceedings.

Dated 26th August, 1987.

Representation: