THE QUEEN v. SIN HOI

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J U D G M E N T

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Fuad, V.-P.:

1. On 13th November 1991, Mr. Sin Hoi, who is 22 years of age, was arrested by the police. Two days later he was charged with two offences of robbery (allegedly committed respectively on 4th October and 28th October 1991) and one offence under the Firearms and Ammunition Ordinance. On 21st November he was released on bail by Mr. F.P. Sweeney in the Magistrate's Court. At identification parades held on 2nd December, he was identified by two witnesses as having taken part in the first robbery and by one witness as having participated in the second robbery. On 12th December the same magistrate revoked his bail and remanded him in custody. On 29th January 1992 Mr. Nigel Jones, sitting as a Deputy Judge of the High Court, ordered "that the application of the Applicant for bail pending trial be refused". On 14th February, on behalf of Mr. Sin, a Notice of Appeal was filed against the judge's order.

2. We invited Mr. Jerome Mathews to satisfy us, as a preliminary point of law, that this Court had jurisdiction to entertain the appeal, and this is the issue I now address.

3. Mr. Mathews told us that the application to Deputy Judge Jones had been made "inter alia under the Hong Kong Bill of Rights Ordinance." He submitted that while the usual method of review of a magistrate's decision to refuse bail was by invoking s.12A of the Criminal Procedure Ordinance, Cap. 221, article 5(4) of the Bill of Rights also enabled the High Court to review the validity of the magistrate's decision to revoke Mr. Sin's bail.

4. Section 12A of the Criminal Procedure Ordinance gives unfettered power to a judge of the High Court to admit a person to bail at any time. Section 12B restricts multiple bail applications. Mr. Mathews acknowledges that there is no right of appeal to this Court from a refusal to grant bail under s.12A.

5. Mr. Mathews relies on the following paragraphs of article 5 of the Hong Kong Bill of Rights Ordinance (No.59 of 1991):

"(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.

(4) Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness or his detention and order his release if the detention is not lawful."

6. I mention here that the article 5(3) may be said to overlap to a certain extent article 11(2)(c) which guarantees the right "to be tried without undue delay."

7. Counsel draws our attention to s.24 of the Supreme Court Ordinance, Cap. 4, (which provides that an appeal lies as of right to the Court of Appeal from any decision of the High Court on a criminal or civil application for habeas corpus) and submits, in the words of his helpful skeleton arguments, that article 5(4) of the Bill of Rights "is a statutory provision for habeas corpus in a constitutional instrument which entitles, inter alia, a person in custody awaiting trial on a criminal matter to have the lawfulness of his detention ruled upon". As such, Mr. Mathews contends, "it would not be right to confine it to a role secondary to that of its common law equivalent". He goes on to argue that in view of the right of appeal accorded by s.24 of the Supreme Court Ordinance "to hold that as the instant application was founded on article 5(4) of the Bill of Rights rather than on a Writ of Habeas Corpus there is therefore no jurisdiction to hear an appeal in relation to that Article would be contrary to s.6(2) of the Bill of Rights." That section is in these terms:

"6. Remedies for contravention of Bill of Rights

(1)    A court or tribunal -

(a)    in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b)    in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2)    No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights."

8. Since a right of appeal is a creature of statute, it is, of course, necessary first to refer to the legislation from which the jurisdiction of this Court derives. The jurisdiction of the Court of Appeal is prescribed by s.13 of the Supreme Court Ordinance, the relevant provisions of which are as follows:

"(1) ...

(2) The civil jurisdiction of the Court of Appeal shall consist of -

(a) appeals from any judgment or order of the High court in any civil cause or matter;

(b) appeals under section 63 of the District Court Ordinance (Cap.336); and

(c) any other jurisdiction conferred on it by any law.

(3) The criminal jurisdiction of the Court of Appeal shall consist of -

(a) appeals from the High Court or District Court under Part IV of the Criminal Procedure Ordinance (Cap.221);

(b) the consideration of questions or law reserved under section 81(1) of the Criminal Procedure Ordinance (Cap.221);

(c) the consideration of -

(i) applications by the Attorney General for the review of any sentence under section 81A(1) of the Criminal Procedure Ordinance (Cap.221);

(ii)    references by the Attorney General of questions of law under section 81D of the Criminal Procedure Ordinance (Cap.221);

(d)    appeals by way of case stated from the District Court under section 84 of the District Court Ordinance (Cap. 336); and

(e)    any other jurisdiction conferred on it by any law.

(4) ...

(5) ...

9. Provisions on the lines of s.6 of the Hong Kong Bill of Rights Ordinance are somewhat unusual both in independent and dependent Commonwealth jurisdictions. More typical are provisions (found generally in constitutional instruments) which allow any person who alleges that any fundamental right protected in the Constitution has been, is being, or is likely to be, contravened in relation to him, without prejudice to any other action with respect to the same matter which is lawfully available, to apply to the High (or Supreme) Court for redress. Coupled with such provisions, one often sees a provision which states that if a question regarding the contravention of any of the protective provisions arises in a subordinate court, that court may (and must if a party so requests) refer it to the High (or Supreme) Court. It is usual, too, to give the High (or Supreme) Court a discretion not to exercise its powers to grant relief if it is satisfied that adequate means of redress are available to the applicant under any other law. See, as examples:

(i) article 19 of the Constitution of Guyana set out in Schedule 2 of the Independence Order, 1966 (SI 1966 No. 575)

(ii) section 20 of the Belize Constitution Act (Act No. 14 of 1981)

(iii) section 25(1) of the Jamaica (Constitution) Order in Council, 1962 (SI 1962 No. 1550)

(iv) the Bermuda Constitution Order 1968 (SI 1968 No. 182)

(v) the Gibraltar Constitution Order 1969 (SI 1969 I I p.3602)

10. In many of the jurisdictions with provisions of this kind, a right of appeal to the Court of Appeal is expressly given from final decisions of the High (or Supreme) Court in cases concerning the enforcement of fundamental rights and freedoms: see, for example, s.20 of the Belize Constitution, articles 28 and 104 of the Constitution of The Bahamas (Schedule to SI 1973 No. 1080) and s.25(3) of the 1962 Constitution of Jamaica.

11. The matter dealt with by Deputy Judge Jones was clearly not a "civil cause or matter" within the meaning of that expression in s.13(2)(a) of the Supreme Court Ordinance because it had to be regarded, on the authorities, as a "criminal cause or matter" (see the decision of another division of this Court in Attorney General v. Alick, Au Shui-yuen, Civil Appeal No. 149 of 1991, 3rd October 1991 (not yet reported) where the authorities are reviewed and applied).

12. If we are to accept jurisdiction to entertain this appeal, it must, therefore, have been conferred by s.13(3)

    of that Ordinance. Paragraphs (a) to (d) of subsection (3) are not applicable and so, it seems to me, Mr. Mathews must fail to get this appeal on its feet unless he is able to point to "jurisdiction conferred ... by any law" for the purposes of paragraph (e) of that subsection.

13. Mr. Mathews has suggested that if we do not accept jurisdiction in this case, it will gravely affect the efficacy of the rights accorded under the Hong Kong Bill of Rights. I feel bound to observe here that the rule of law, upon which the protection of fundamental rights and freedoms ultimately depends, would have no meaning if a court were to assume jurisdiction not conferred upon it by the legislature. As Morris L.J. succinctly put it in Healey v. Minister of Health [1955] 1 QB 221, at p.231:

"... the courts cannot invent a right of appeal where none is given. The courts will not usurp appellate jurisdiction where none is created."

14. I find it quite impossible to hold that the application refused by the judge was an "application for habeas corpus" within the meaning of those words in s.24 of the Supreme Court Ordinance, without doing unacceptable violence to the language used by the legislature. Recourse to a court for a remedy or relief under s.6 of the Hong Kong Bill of Rights Ordinance, relying on article 5 of the Bill of Rights, and an application for habeas corpus will, no doubt, have some common features, but the right of appeal given by s.24 is limited to orders made by the High Court in applications for the latter relief.

15. This is not the occasion to consider the full scope and true effect of all that is enacted by s.6 of the Hong Kong Bill of Rights Ordinance, but in relation to subsection (2) of that section particularly relied upon by Mr. Mathews, I think it can safely be said that however generous and purposive a construction is put upon the language of that subsection, it does not confer appellate jurisdiction on any court which it does not otherwise possess. The ordinary law relating to appeals is not thereby overridden.

16. I would therefore decline jurisdiction and strike out the appeal as incompetent.

17. Before I take leave of this case, I permit myself to wonder how someone who was remanded in custody on serious charges on 12th December 1991 can, in the real world, pray in aid article 5(3) as early as 7 weeks later.

Nazareth, J.A.:

18. I agree with my Lord and I would only add this, that in his submissions Mr. Mathews invited us to assume jurisdiction on the basis also of dicta in Gamble v. The Queen 45 CCC (3d) 204, at 238, 239 which make the point in relation to jurisdiction that Charter relief should not be denied or displaced by overly rigid rules. For myself I cannot see from what Mr. Mathews says that Charter relief is denied in the circumstances before us; article 5(3) and (4) can be fully taken into account in the bail procedures and jurisdiction that is prescribed.

Bewley, J.:

19. I agree with both judgments delivered and have nothing to add.

[Appeal struck out as incompetent]