MUHAMMAD RIAZ KHAN v. CHIEF EXECUTIVE AND ANOTHER

HCAL 121/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 121 OF 2015

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REASONS FOR JUDGMENT
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1. By a Form 86 dated 7 July 2015 and as amended on 25 January 2016, the Applicant Muhammad Riaz Khan sought leave to apply for Judicial Review against a decision by the Chief Secretary for Administration (2^nd Putative Respondent), who acted under delegated power from the Chief Executive (1^st Putative Respondent), refusing to refer the case HCCC 160/2002 involving the Applicant to the Court of Appeal under section 83P of the Criminal Procedure Ordinance, Cap 221 (“CPO”).

2. As the application was made out of time, the Applicant also sought an extension of time.

3. On 18 September 2015, the Putative Respondents filed an Initial Response opposing the leave application.

4. On 26 January 2016, after hearing submissions for the Applicant and the Putative Respondents inter parte, I refused to grant leave to the Applicant.  I indicated that I would hand down my reasons in due course.  This I now do.

Factual background

5. The Applicant, who was D2 in HCCC 160/2002, was convicted with D1 and D3, after trial, of an offence of conspiracy to traffic 1.9 kilogrammes of heroin before DHCJ Line (as he then was) with a jury and was sentenced to 24 years’ imprisonment.

6. The prosecution case was that D3 had brought a suitcase – later found to have the 1.9 kilogrammes of heroin hidden inside – from a hotel to the airport and left the suitcase with D1.  D1 and the Applicant had, the night before, negotiated with a man who posed as a buyer regarding the sale of the heroin.  That man was in fact an undercover agent from the United States.  There were also surveillance and circumstantial evidence to show that D1, the Applicant and D3 acted together.

7. The Applicant testified at the trial.  His evidence was that his conversation with the undercover agent concerned “gemstones” which D1 wanted to sell.  He did not know D3.

8. DHCJ Line directed the jury as to the effect of the presumptions arising under section 47 of the Dangerous Drugs Ordinance (Cap 134) in relation to the possession of dangerous drug and the knowledge of its nature.  DHCJ Line made it clear that the presumptions only applied to D1 and D3, and not to the Applicant.  He also directed the jury to consider each defendant’s case separately.  The Applicant was convicted together with D1 and D3.

9. On 22 May 2007, D1 and D3’s application for leave to appeal against their conviction (CACC 125/2003) was allowed as a result of DHCJ Line’s misdirection on the reverse onus of proof and a re-trial was ordered.  The Applicant’s application was dismissed.

10. During the hearing of the application, Stock JA (as he then was) said “We need to be satisfied … that there is no way in which the misdirections by the judge to the jury in relation to [D1 and D3] could have carried over to impact the jury’s mind in reaching their verdict in relation to the [Applicant].” and asked counsel for the prosecution to address the court. ^[1]  

11. The Applicant, D1 and D3 were not legally represented at the time.

12. Prosecution counsel Mr David Leung referred to the trial judge’s direction to the jury that they must consider the evidence against each defendant separately, and to the evidence that the Applicant was the one who did most of the discussion with the undercover agent, and submitted that there was no basis to suggest the jury had misused the misdirection. ^[2]

13. The Court of Appeal, in a reserved judgment, was satisfied that the misdirection as to the reverse onus of proof applying to D1 and D3 would not have overflowed into and adversely affected the case of the Applicant.  McMahon J, giving judgment for the Court of Appeal held (Reasons forJudgment of CACC 125/2003):

“10. The trial judge quite specifically instructed the jury that the direction he gave them as to the presumptions arising under section 47 of the Ordinance applied only to D1 and D3, but not to D2. That no doubt was because there was no substantial evidence that D2 had ever been in physical possession of the suitcase. The judge directed the jury also that the cases of each had to be considered separately. We were satisfied in those circumstances that the misdirections as to the reverse onus of proof applying to D1 and D3 would not have ‘overflown’ into and adversely affected the case of D2.”

14. On 29 October 2007, upon re-trial, D1 and D3 were convicted on their own plea and each was sentenced to 18 years’ imprisonment.  

15. On 4 November 2010, the Applicant was granted leave by the Court of Final Appeal to appeal out of time on the ground of great and general or public importance, which concerned the right of privacy and the treatment of evidence obtained in alleged breach of that right, ie secret recording of the conversation of D1 and the Applicant with the undercover agent.  There was no application for leave to appeal against the Court of Appeal’s finding that the misdirection has not overflowed to the Applicant. 

16. On 7 May 2012, the Court of Final Appeal dismissed the appeal. Reasons were handed down on 22 May 2012: see HKSAR v Muhammad Riaz Khan (2012) 15 HKCFAR 232.  The Court of Final Appeal recited (at para 4), without criticism, that the misdirection as to the nature of the presumption arising from their physical possession of the suitcase of heroin “did not affect [D2] because the trial judge had told the jury that it did not apply to him”. 

17. On 21 May 2012 (ie one day before the Court of Final Appeal handed down the reasons for the judgment), the Applicant’s defence counsel (Mr Andrew Bruce SC and Mr Phillip Ross) advised the Director of Legal Aid that there may be another ground of appeal. ^[3]  

18. On 25 January 2013, the Applicant presented a petition to the Chief Executive, asking for the case to be remitted to the Court of Appeal under section 83 of CPO.  

19. The grounds relied on (said to be suggested by defence counsel) were as follows ^[4]:

“The Applicant received no benefit from the error because the Court of Appeal held that the misdirection as to D1 and D3’s case had not ‘overflowed’ to the Applicant’s case. Indeed, the trial judge had directed the jury that direction on presumption did not apply to the Applicant.

However, D1, the Applicant, and D3 were indicted on a joint single count of conspiracy to traffic in dangerous drugs. In convicting D1 and D3, the jury may well have first decided that they knew what they were carrying by following the trial judge’s misdirection, in order to find that they had agreed to traffic in dangerous drugs.

The jury would likely have also found that the Applicant knew that the suitcase contained dangerous drugs. However, the jury would not have applied the misdirection to find actus reus of the offence – that the Applicant agreed to traffic.

However, the jury would also need to find that someone – D1 or D3 or both – had agreed with the Applicant to traffic before the offence against the Applicant had been established.

In this way, the trial judge’s misdirection against D1 and D3 conceivably could have overflowed to the Applicant.  ”

20. On 6 March 2014, the Applicant made it clear that his application was under section 83P of CPO. ^[5]  

21. On 8 April 2014, the Secretary for Security wrote to the Applicant^[6] attaching the provisional view on the petition for his comments. ^[7]  The provisional view was that there was no substantial new evidence or other considerations in the petition that could reasonably cause the Court of Appeal to regard the Applicant’s conviction as unsafe, and that there were no grounds to refer the case to the Court of Appeal under section 83P of CPO. ^[8]  The observations of the Court of Appeal and the response by counsel for the prosecution were cited as reference.  

22. On 20 June 2014, Mr Phillip Ross of counsel wrote on behalf of the Applicant (through the Bar Free Legal Advice Scheme) to respond to the provisional view. ^[9]  The letter further elaborated on the argument in the petition.  Mr Ross submitted that the jury “may have engaged in impermissible reasoning using the misdirection on the presumption to ultimately convict [the Applicant]”, and the jury “may have, through proper directions, found the [Applicant] was ready to conspire and through impermissible directions that D1 and D3 were ready to conspire with the [Applicant].”  Mr Ross submitted that the resultant conspiracy involving the Applicant would have been arrived at through flawed reasoning.  

23. On 17 July 2014, the Solicitor General (SG) issued a note ^[10] containing an analysis of the grounds raised in support of the petition and a recommendation that it be rejected.  The SG referred to the comments made by Mr Ross on behalf of the Applicant and summarized the Applicant’s argument at para 21 of the note ^[11]:  

“21. In brief, the [Applicant] has argued that the jury might have engaged in impermissible reasoning using the misdirection on the presumption to find that D1 and D3 had conspired to traffic in dangerous drugs with the [Applicant]. But for the misdirection, the jury might never have found that D1 and D3 agreed to traffic in dangerous drugs.”

24. The SG advised that the Applicant had essentially “repeated his complaints as set out in the petition by arguing the same ground through another route.”  The SG referred to the comments of Stock JA and the judgment of the Court of Appeal and said ^[12]:

“24. Therefore, when considering the [Applicant’s] verdict and determining whether the [Applicant] had reached an agreement with D1 and D3 to traffic in dangerous drugs, the jury should not have relied on the presumption. It is speculative for the [Applicant] to argue that the misdirection on D1’s and D3’s knowledge of the dangerous drugs would lead to an impermissible reasoning by the jury to find that D1 and D3 had agreed to traffic in dangerous drugs with the [Applicant], and ultimately to convict [the Applicant].”

25. The SG was of the view that there was no merit in the arguments advanced.  

26. On 26 November 2014, the Secretary for Security (SS) prepared a set of minutes for the Secretary for Administration (SA) ^[13], setting out the background, the grounds in support of the petition, the SG’s views on the merits of the petition and the stance taken by other relevant departments.  The SG’s recommendation was that there was no merit in the petition.  

27. In para 11 of the minutes, the SS set out the Applicant’s grounds ^[14]:

“11. The [Applicant] complained that his conviction was also flawed due to the same misdirection made by the trial judge but was not benefited from such error. Although the [Applicant] understood that he was not presumed to know the dangerous drugs inside the suitcase therefore the trial judge’s misdirection was not applicable to him, he still argued that the three defendants were indicted on a joint single count of conspiracy to traffic in dangerous drugs.”

28. Under the heading “Merits of the Petition”, the SS summarized the SG’s advice.  The SS referred to Mr Ross’ response ^[15]:

“In brief, the [Applicant] has argued that the jury might have engaged in impermissible reasoning using the misdirection on the presumption to find that D1 and D3 had conspired to traffic in dangerous drugs with the [Applicant]” and the SG’s opinion that “the [Applicant] has essentially repeated his complaints as set out in the petition by arguing the same ground through another route.”

29. Neither the SG’s advice nor the minutes was disclosed to the Applicant at the time.  

30. On 28 November 2014, the SS informed the Applicant of the decision that the petition could not be acceded to. ^[16]  

31. On 6 January 2015, the Applicant wrote to the Director of Legal Aid (DLA), seeking Legal Aid for Judicial Review of the Secretary’s decision. ^[17]  

32. On 12 January 2015, The DLA wrote to the Security Bureau requesting for the reasons for the decision to enable it to consider the merits of a potential Judicial Review. ^[18]  

33. On 9 February 2015, the SS replied the reason for the decision was that there was no new substantial evidence or other consideration in the petition that could reasonably caused the Court of Appeal to regard the conviction as unsafe.  Mr Ross’ argument contained in his letter dated 20 June 2014 was considered to be on the same ground as relied upon by the Applicant through another route and had no merit. ^[19]  

34. After seeking a legal opinion from counsel Mr PY Lo ^[20], Legal Aid Certificate was granted on 18 February 2015 ^[21] to the Applicant to apply for leave for Judicial Review.  

35. Mr Ross was assigned to act as counsel for the Applicant by the Legal Aid Department on 10 March 2015. ^[22]  

36. On 16 March 2015, assigned solicitors requested for a disclosure of the papers under the Personal Data (Privacy) Ordinance, Cap 486. ^[23]

37. On 22 May 2015, relevant papers were forwarded by the SS to assigned solicitors. ^[24]  

38. By a Form 86 dated 7 July 2015, the Applicant sought leave to apply for leave, out of time, for Judicial Review of the decision, seeking an order of Mandamus requiring the Putative Respondents to “re-consider the Petition according to law”.  The said Form was amended on 25 January 2016 to change the name of the 2^nd Putative Respondent from the SS to the Chief Secretary for Administration. 

The applicable law

39. Before I turn to the merits of the application, I will briefly set out the relevant law.

40. There is no dispute that for an application for leave to apply for judicial review, the test is one of “reasonable arguability”, meaning one which enjoys realistic prospect of success.  This is a higher threshold as compared to the “potential arguability test” adopted in the past.  The reasonable arguability test applies both to the issues of law and facts: see Peter Po Fun Chan v Cheung CW Winnie (2007) 10 HKCFAR 676.  

41. Section 83P of the CPO provides:

“(1) Where a person has been convicted on indictment or been tried on indictment and found not guilty by reason of insanity, or been found by a jury to be under disability, the Chief Executive may, if he thinks fit, at any time either –

(a) refer the whole case to the Court of Appeal and the case shall then be treated for all purposes as an appeal to the Court of Appeal by that person; or

(b) if he desires the assistance of the Court of Appeal on any point arising in the case, refer that point to the Court of Appeal for its opinion thereon, and the Court of Appeal shall consider the point so referred and furnish the Chief Executive with its opinion thereon accordingly.

(2) A reference by the Chief Executive under this section may be made by him either on an application by the person referred to in subsection (1), or without any such application.

(3) For the avoidance of doubt, it is hereby declared that this section also applies in a case where an appeal has been heard and determined by the Court of Final Appeal.”

42. In R v Secretary of State for the Home Department, ex parte Hickey & ors (No.2) [1995] 1 WLR 734, the English Court of Appeal dealt with an identical piece of legislation to section 83P of CPO (ie s.17 of the Criminal Appeal Act 1968, which was subsequently repealed).

43. Simon Brown LJ held (at page 741B):

“… Provided only and always that there indeed exists substantial new evidence or other considerations in the case and that he will not, therefore, be inviting the court merely to re-examine essentially the selfsame case as it will already have rejected, the Secretary of State should to my mind ask himself this question: could the new material reasonably cause the Court of Appeal to regard the verdict as unsafe? If it could, then I would expect him without more ado to refer the case for hearing as an appeal. …”

44. Simon Brown LJ cited the decision of Bingham LJ in Ex parte Cleeland (unreported) at page 740 when dealing with the “width of the discretion” afforded by the legislation:

“The decision to refer is that of the Secretary of State if he thinks fit. The use of that language does not, of course, make his decision proof against judicial review but it does make it quite plain that the decision is entrusted to him and it is one with which this court should not, in my judgment, at all readily interfere unless strong grounds for doing so are shown.”

45. This “Hickey test” was adopted in Ch’ng Poh v The Chief Executive of the HKSAR (HCAL 182/2002), and Ali Akbar Mirza v HKSAR (HCAL 23/2008).

46. Mr Jin Pao, counsel for the Putative Respondents, submitted the follow legal propositions in his written submission for my consideration:

“30. Accordingly, the legal propositions below may be derived: -

(1) a reference to the Court of Appeal under section 83P of the CPO will be inappropriate where the court will be invited to re-examine the same case which it has already rejected.

(2) Section 83P of the CPO confers a statutory power on the Chief Executive who may exercise such power ‘as he thinks fit’ which indicates that the decision is entrusted to him and it is not one with which the court should readily interfere unless strong grounds for doing so are shown.

(3) On an application for judicial review a decision made under section 83P of the CPO is not subject to review in relation to its correctness but rather with respect to its legality.”

47. I am in total agreement with these propositions.  Indeed no argument had been advanced by Mr Ross to challenge the correctness of any of these propositions.

My consideration on the merits of the application

48. The grounds as stated on Form 86 were, in a nutshell, that the Applicant sought to have his case referred to the Court of Appeal on a different ground not previously advanced, but the SA had taken into account irrelevant considerations and had failed to take into account relevant considerations.  

49. It was said in Form 86 (para 30) that “the Secretary for Security [had] not in the reasons for the refusal, referred to the Applicant’s argument” and “[appeared] not to have taken [the reasoning set out in Mr Ross’ letter in response to the Provisional View] into account”.

50. During oral submission, Mr Ross conceded that in both the note prepared by the SG and the minutes prepared by the SS for the SA, the Applicant’s argument as put by him had been corrected stated.

51. Looking at all the documents before this court, it cannot be said that the Applicant’s argument was not referred to by the SG or the SS, or that the Applicant’s argument had been misunderstood.

52. Mr Ross submitted that as the SG and the SS had simply made reference to the exchange between Stock JA and Mr David Leung, and to the judgment of the Court of Appeal, the SG and the SS had not shown that they had “considered” the Applicant’s argument.  Mr Ross submitted that the Applicant had not argued the same ground through another route, but had argued the same ground through the same route.

53. In my view, whether the Applicant had argued the same ground by the same route or a different route is not of significance.  What the SG and the SS had said was clearly referring to the fact that Mr Ross’ argument in his letter was the same as that submitted by the Applicant in his Petition.  As Mr Ross has conceded, correctly in my view, that both the SG and the SS had set out accurately the argument he submitted on behalf of the Applicant, it cannot be said that they did not know or understand what the Applicant’s argument was.

54. Since both the SG and the SS knew what the Applicant’s argument was when they made their consideration, it is difficult to see how they could have or would have failed to consider the very argument under consideration.

55. It has not been shown to me how the SA had taken into account irrelevant considerations or that there was a failure to taken into account relevant considerations. 

56. Whether the SG or the SS was correct in coming to their views – by referring to the interchange between Stock JA and Mr David Leung, and by referring to the judgment of the Court of Appeal – that there was no merit in the Applicant’s argument is not the subject of Judicial Review.  I am not concerned with the correctness of the decision. 

57. This is not a case in which new evidence or new material had emerged.  There is also no change of legislation.  The Applicant’s argument was clearly understood by the SG and the SS.  The Applicant has failed to show me that the SG and the SS had not considered the Applicant’s argument as further explained by Mr Ross.  That being the case, the Applicant has failed to pass the reasonable arguability test and I refused the application for leave to apply for Judicial Review.

My consideration on the issue of delay

58. Although strictly speaking, I do not have to consider the issue of delay when I have already found that there was no reasonable arguable case, I would like to make some comments on the issue of delay in this case.

59. Order 53 rule 4(1) of the Rules of the High Court (Cap 4A) (RHC) provides:

“(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.”

60. Although the rules lay down a time limit of three months, there is a need for the applicant to act promptly.  As Hartmann J (as he then was) has said in Law Chun Loy v Secretary for Justice [2006] HKCU 1795, (HCAL 13/2005, 26 October 2006):

“9. What must also be emphasised is that O.53, r.4(1) does not permit an applicant simply to sit back and wait until the three month period stated in the order is drawing to a close before instituting action.  The primary requirement of O.53, r.4(1) is promptness.  The fact that an application has been made within three months does not necessarily mean that it has been made promptly.  There may be occasions when an applicant who has filed his application for leave within the three months time period will still be judged to be guilty of undue delay.

10. This requirement for promptness has a sound basis in [public] policy.  Judicial review provides a relatively quick and straightforward procedure for identifying and redressing public law wrongs.  But it must be recognised that the procedure, dealing, as it does, with decisions made by public bodies in the complex business of managing a modern society, not only has the potential to disrupt the orderly administration of public services but also has the potential to cause hardship to, or in some way to prejudice, third parties who, for example, may already have acted upon the decision under challenge.  It is for that reason that there is a necessity for the earliest reasonable notification that a public law decision is being challenged and for an early resolution of that challenge.  In R. v. Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763, at 774, Sir John Donaldson put it plainly —

‘… good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.’”

61. In Re Thomas Lai [2014] 6 HKC 1, G Lam J set out an non-exhaustive list of factors likely to be of significance when considering whether there were good reasons to extend the time.  They include:

(1)  The length of the delay;

(2)  An explanation for the delay;

(3)  The merits of the substantive application;

(4)  Question of prejudice; and

(5)  Whether questions of general public importance are raised.

62. I have already ruled that this leave application is not reasonable arguable.  This application does not concern any question of general and great importance and the issue of prejudice has no relevance here.

63. I will address the length of, and the explanation given, for the delay.

64. There is a substantial delay in this case.  The decision was given on 28 November 2014. The Applicant applied for Legal Aid by letter on 6 January 2015. Between 12 January 2015 and 18 February 2015, the DLA made enquires and sought legal opinion to decide on the merits of the Applicant’s application for legal aid.  On 18 February 2015, Legal Aid was granted to the Applicant.  On 10 March 2015, Mr Ross was assigned as counsel for the Applicant.  On 16 March 2015, solicitors assigned by the DLA sent papers to the Applicant to sign for a request to the SS to disclose relevant papers under the Personal Data (Privacy) Ordinance.  On 22 May 2015, the relevant papers were forwarded to the solicitors.  I was informed by Mr Ross that on 27 May 2015, the same were received by him.  The application was made on 7 July 2015.

65. I am prepared not to take into account the period counting from the date of decision (28 November 2014) to the time when solicitors and counsel have received the relevant documents from the SS (22 May and 27 May 2015 respectively).  No reason has been given on paper as to why the application was not made promptly upon receipt of the relevant papers.

66. Mr Ross informed me in court that it was his decision to consider whether there were other further grounds apart from the one he already knew.  I must admit I find this explanation unacceptable.  The Applicant was already out of time when Legal Aid was granted.  This is not a case where the Applicant had to start from scratch.  The Applicant does not enjoy the luxury of waiting around and “perfecting” his grounds before submitting the application.  Any further grounds could have been added to the application at a later stage.  There is no good reason shown as to why an application with the ground/s already known was not made promptly.

67. In the circumstances of this case, I am not satisfied that the application, being already late, had been filed with reasonable expedition. 

[1] Hearing Bundle, page 77 P-R

[2] Hearing Bundle, page 78 E-N

[3] Hearing Bundle, page 70-71

[4] Hearing Bundle, page 20

[5] Hearing Bundle, page 139

[6] Hearing Bundle, page 60

[7] Hearing Bundle, page 61-66

[8] Para 18 of the Provisional View (Hearing Bundle, page 65)

[9] Hearing Bundle, page 80-82

[10] Hearing Bundle, page 186-192

[11] Hearing Bundle, page 191

[12] Hearing Bundle, page 191 para 24

[13] Hearing Bundle, page 193-204

[14] Hearing Bundle, page 198

[15] Hearing Bundle, page 203 para 21

[16] Hearing Bundle, page 83-84

[17] Hearing Bundle, page 85-95

[18] Hearing Bundle, page 96-97

[19] Hearing Bundle, page 98-100

[20] Hearing Bundle, page 101-113

[21] Hearing Bundle, page 114-115

[22] Hearing Bundle, page 116-117

[23] Hearing Bundle, page 118-126

[24] Hearing Bundle, page 127-180