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HCMP002936/1989
M.P. No. 2936 of 1989
IN THE SUPREME COURT OF HONG KONG
HIGH COURT
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IN THE MATTER of an application by George TAN Soon-gin for leave to apply for Judicial Review.
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BETWEEN
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GEORGE TAN SOON GIN |
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AND
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THE ATTORNEY GENERAL |
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Coram: Hon. Jones J. in Chambers
Dates of hearing: 26 - 28 March 1990
Date of handing down judgment in Court: 4 April 1990
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JUDGMENT
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1. This is an application by the Attorney General under Order 32, rule 6 of the Rules of the Supreme Court to set aside an ex parte order made by Barnett J. on the 8th November 1989 when he granted leave to the applicant George Tan, the respondent to the present summons to apply for judicial review in respect of a decision made by the Attorney General to proceed with certain charges preferred against him. Pursuant to the order granting leave, a motion was issued on the 15th November 1989 which is also before me, but must of course await the result of the present application.
2. Although I heard the application in Chambers I am handing down the judgment in Court with the consent of the parties as the matter is one of public importance.
3. The respondent was originally arrested on the 30th April 1983 under the Prevention of Bribery Ordinance. He was later charged with offences that led to the Carrian trial, which resulted in a finding of no case to answer in September 1987. On the 7th December 1985, the respondent was arrested in connection with fraud charges relating to Bumiputra Malaysia Finance Limited (BMFL). It has always been the intention of the Attorney General not to proceed with these charges which are to be tried in the High Court until a co-defendant Lorrain Osman (Osman) returns to Hong Kong from England where he has resisted all applications for his extradition since his arrest four years ago.
4. Meanwhile the respondent has been charged with two sets of separate offences of offering bribes to officers of banks in consideration for granting loans to companies in the Carrian Group. The first concerns WestLB for which charges he was arrested on the 5th July 1988. The second set relates to Barclays Asia Limited (Barclays Asia) for which he was charged on the 3rd November 1989. The charges relating to BMFL have been remanded from time to time awaiting the return of Osman which the Attorney General anticipated would be in about March 1989. The Attorney General on this assumption believed that there might be a clash of dates between the hearing of the BMFL charges and those relating to WestLB which case is to be tried in the District Court. Following a suggestion made by the Attorney General which received the agreement of the respondent's solicitors an application was made to magistrate on the 4th November 1988 for the hearing of the WestLB charges to be deferred for one year. The application was acceded to by the magistrate who adjourned the hearing until the 3rd November 1989.
5. As Osman had still not returned to Hong Kong to face trial on the BMFL charges, the Attorney General decided to proceed with the WestLB charges and the Barclays Asia charges that it was intended to bring, and informed the respondent's solicitors to this effect in October 1989. The Barclays Asia charges are also to be transferred to the District Court. The applications for transfer of the charges have been deferred pending the outcome of the present summons.
6. An application for leave to apply for judicial review was filed on behalf of the respondent on the 2nd November 1989 that sought the following relief : -
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(i) A declaration that the WestLB charges should not be proceeded with by the Attorney General of Hong Kong without the leave of this Honourable Court before the trial of the BMFL charges upon the grounds that the Attorney General in exercising his discretion failed properly to consider the facts which he ought to have considered and/or failed to give the said facts their proper weight and/or took into consideration facts which he ought not to have taken into consideration and/or that his decision was one that no reasonable prosecuting authority could properly reach and that to bring the WestLB charges to trial before the conclusion of the trial of the BMFL charges would be unreasonable, unfair and contrary to the interests of justice having regard to all the circumstances of the case.
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(ii) A declaration that the decision of the Attorney General of Hong Kong to proceed to have the Applicant tried in the District Court on the WestLB charges was for the like grounds made unreasonably, unfairly and contrary to the interests of justice.
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(iii) A declaration that the two alleged offences arising out of the "Turner/Barclays Asia" matters should not be proceeded with by the Attorney General of Hong Kong without the leave of this Honourable Court before the trial of the BMFL charges upon the grounds that the Attorney General in exercising his discretion to charge George Tan with these alleged offences acted oppressively and/or failed properly to consider the facts which he ought to have considered and/or failed to give the said facts their proper weight and/or took into consideration facts which he ought not to have taken into consideration and/or that his decision was one that no reasonable prosecuting authority could reach and that to charge the two alleged offences arising out of the "Turner/Barclays Asia" matter was oppressive, unreasonable, unfair and contrary to the interests of justice having regard to all the circumstances of the case.
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(iv) A declaration that the two alleged offences arising out of the "Turner/Barclays Asia" matters should not be proceeded with by the Attorney General of Hong Kong without the leave of this Honourable Court upon the grounds that the Attorney General in exercising his discretion to bring the two alleged offences to trial before the conclusion of the trial of the BMFL charges acted oppressively and/or failed properly to consider the facts which he ought to have considered and/or failed to give the said facts their proper weight and/or took into consideration facts which he ought not to have taken into consideration and/or that his decision was one that no reasonable prosecuting authority could properly reach and that to bring the two alleged offences arising out of the "Turner/Barclays Asia" matters to trial before the conclusion of the trial of the BMFL charges would be unreasonable, unfair and contrary to the interests of justice having regard to all the circumstances of the case.
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(v) A declaration that the decision of the Attorney General of Hong Kong to proceed to have the Applicant tried in the District Court on the two alleged offences arising out of the "Turner /Barclays Asia" matters was for the like grounds made unreasonably, unfairly and contrary to the interests of justice. |
7. Barnett J. granted leave in respect of the 1st, 3rd and 4th applications, but refused the other two.
8. There is ample authority for the court to set aside an order granting leave for judicial review, see R. v. Secretary of State for the Home Department, ex p Herbage (No. 2) [1987] Q.B. 1077 (CA). At first instance in Keung Siu Wah, M.P. 659 of 1989, Mayo J. held that the test to adopt upon an application to set aside an ex parte order granting judicial review is whether the application is hopeless or misconceived while Rose J. in R. v. District Auditor Cheimsford, Ex parte Judge The Times Law Reports December 1988, said that "it should only be granted in most exceptional circumstances".
9. In his submission on behalf of the Attorney General, Mr Mills-Owens submitted that the recent decision of the Court of Appeal in Keung Siu Wah which affirmed the decision of Mayo J. provides conclusive authority for the proposition that the Court is not entitled by way of judicial review to interfere with the exercise of the Attorney General's discretion in his prosecution of criminal proceedings unless the decision comes within the criteria referred to by Lord Diplock in Council of Civi Service Unions v. Minister for the Civil Service [1985] 1 A.C. 374. He went on to submit that the decision of the Attorney General to proceed with the charges, if indeed it was a decision, is not justiciable for in his constitutional position, the exercise of his prerogative powers cannot be challenged. Any complaint of unfairness or unreasonable conduct by the Attorney General in seeking to proceed should be addressed to the trial judge.
10. The thrust of Mr Hamilton's objections on behalf of the respondent is directed to the avoidance of prejudice in the trial of the BMFL charges before a jury . He therefore contended that the issue is one suitable for judicial review on the basis of the well known principles of Wednesbury unfairness, see Wednesbury Association Provincial Picture Houses Limited v. Wednesbury Corporation (1948)1 K.B. 223. Mr Hamilton argued that the decision of the Attorney General in agreeing to the adjournment of the WestLB charges was acting in the exercise of an administrative function as opposed to his quasi judicial functions so that his action is therefore subject to judicial review. Whereas he accepts on the authority of Keung Siu Wah, that the court has no right to interfere with the Attorney General's decision to prosecute, he argued that after that decision has been made, all subsequent decisions become subject to the court's supervisory role. He submitted that a cut-off point arises after the decision to prosecute is made.
11. A number of Hong Kong authorities were cited to me with regard to the approach taken by the courts to review the Attorney General's exercise of his discretion both with regard to his prerogative powers and those derived from statute. Those decisions were drawn to the attention of the Court of Appeal in Keung Siu Wah and some are referred to in the judgment. Without any disrespect to counsel, I do not consider that it is necessary to embark upon any discussion of those cases for I am quite satisfied that the issue that I have to determine in this application is covered by the decision in Keung Siu Wah which I am bound to follow.
12. After considering the authorities, Fuad, V.-P., in his judgment in Keung Siu-wah at pp. 25 and 26 had this to say :-
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"I entertain no doubt whatever that the decision to prosecute in the instant case, likewise, is not subject to the judicial review process; such a decision does not fall within the criteria for a reviewable decision stated by Lord Diplock in Council of Civil Service Unions at pp. 408-409. Only the Attorney General has access to all the necessary information. The cases stress (e.g. Chief Constable of North Wales Police v. Evans [1982]1 WLR 1155, 1173) that judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. In the case of a decision by the Attorney General to institute a prosecution how is this review to be conducted? I note here that Mr Bernacchi conceded that if a decision to prosecute were judicially reviewable, then so would be a decision not to prosecute. |
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I can imagine few subjects less adapted to the judicial review procedure under 0.53 than the exercise of the Attorney General's discretion in deciding whether to institute criminal proceedings and what charge should be preferred."
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13. In deciding whether the court is entitled to interfere with a discretion exercised by the Attorney General, my attention was drawn by counsel to Barton v. R. [1980]32 A.L.R.449 which held that the court should approach the problem having regard to the particular discretion that the Attorney General seeks to exercise. The Court of Appeal in Keung Siu Wah cited the following passage from Barton at p. 458 where Gibbs and Mason JJ. said :-
"The provision does not limit or restrict the Attorney General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney General at large in deciding what course he shall take, it makes his decision immune from judicial review."
Later on the same page, they said as follows :-
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"It would be surprising if Parliament intended to make the Attorney's information subject to review. It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced - see the DPP v. Humphrys[1977] AC 1, to which we shall refer shortly - though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. Finally, it cannot be said that the existence of judicial review of the Attorney General's decision is essential to the administration of justice for, as we shall see, the court has other powers to ensure that a person charged with a crime is fairly dealt with.
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It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say that the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. The distinction between the court's lack of power to review the Attorney's decision whether to commence proceedings or not and the court's power to control its proceedings was central to the judgment of Lord Langdale in R. v. Prosser, supra. The course which Fox J took in Kent when he ultimately discharged the accused on the ground that there had been no preliminary examination is to be supported, not on the basis that the Attorney General's decision to prosecute was invalid, but on the footing that the accused would not receive a fair trial without a preliminary examination.
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There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial. The exercise of this power extends in an appropriate case to the grant of a stay of proceedings so as to permit a preliminary examination to take place. As a result of the speeches in Connelly v. DPP and DPP v. Humphrys, it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the acused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds: see especially the speeches of Lord Reid, Lord Devlin and Lord Pearce in Connelly, at 1296, 1347-53 and 1361-2, and the speeches of Lord Salmon and Lord Edmund Davies in Humphrys, at 46 and 53-5. The House of Lords has thereby affirmed the observation of Lord Parker CJ in Mills v. Cooper [1967]2 All ER 100; [1967]2 QB 459 at 467, '....every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court', and rejected the more restricted view of Lord Goddard CJ in R. v. Chairman, County of London Quarter Sessions; Ex parte Downes [1954]1 QB 1 at 6. The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be." |
Following this citation, Fuad, V.-P., had this to say at pages 29 and 30 :-
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"In my judgment, if the prosecution of the applicant goes ahead, any complaints he may still have can only be raised before the trial court; and thereafter, if appropriate, on appeal. In my judgment it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised. The Australian judges in R. v. Barton were not taking too technical or artificial a view. Their decision recognises and preserves the unique constitutional position of the Attorney General, while reserving to a Court its inherent jurisdiction to prevent an abuse of its process.
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In the criminal field this is still a developing and unsettled area of the law, but one thing is clear - exceptional circumstances must exist before a Court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine." |
14. I am unable to accept the submission made on behalf of the respondent that the decision in Keung Siu Wah is to be restricted to the narrow issue of the Attorney General's decision to prosecute. The Attorney General has, as was submitted by Mr Mills-Owens, many other duties to perform in the conduct of a prosecution which clearly are not reviewable such as decisions for the filing of a voluntary bill, in which court proceedings should be heard, what charges are to be brought, whether there should be joint or separate trials, the immunity of witnesses, and which witnesses are to be called to give evidence. Indeed the decision to proceed with the bank charges in the present case is another illustration of the Attorney General's duties. I do not therefore accept that there is any cut-off point as was submitted by Mr Hamilton. As a corollary of the submission made on behalf of the respondent that the Attorney General's decision to proceed can be the subject of review, it must necessarily follow that his decision not to proceed can also be the subject of challenge. This proposition is untenable.
15. In the context of criminal proceedings, I am satisfied that in the exercise of his discretion with regard to his prerogative powers, the Attorney General is not subject to judicial review, unless he comes within one of the three criteria referred to by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985]1 A.C. 374 of illegality, irrationality and procedural impropriety.
16. Another matter that was raised was delay which might result in prejudice, but this is not relevant to the present application althought it may be a relevant factor to be taken into consideration by the trial judge.
17. The decision whether or not to proceed with the WestLB and Barclays Asia charges is one to be made by the Attorney General in the exercise of his discretion which is not subject to judicial review. Accordingly, the order of Barnett J. granting leave for judicial review is set aside. In handing down this judgment, I shall make an order nisi for costs in favour of the Attorney General.
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(B.L. Jones)
Judge of the High Court |
Representation:
Mr Richard Mills-Owens, Q.C. and Mr Graham Harris, for the Attorney General
Mr Graeme Hamilton, Q.C. and Mr Gary Alderdice (Au Yeung & Co.) for Respondent
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