RE JIANG ENZHU

HCAL 27/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW PROCEEDINGS NO. 27 OF 1998

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D E C I S I O N

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1. As this matter is ex parte and given the grounds upon which my decision is based, I shall give very brief reasons.

2. This is an application for leave to apply for judicial review, an application which was placed before me last week. I was then satisfied, as I still am, that the threshold test for judicial review had been met - in other words, that an arguable case for the relief sought and on the ground sought had been met. I asked to hear counsel because I was not on the papers then persuaded that judicial review was the appropriate avenue by which the applicant should address his grievances. I took the preliminary view that the matter canvassed were all matters which could properly be canvassed before the magistrate, for as a matter of general principle, if there is that route, then save in exceptional circumstances, that is the route that should be followed.

3. As I intimated earlier today, it must be understood that this application is heard ex parte and only at the leave stage, and I am not now determining the applicant's complaints, nor any allegation of a breach of the Privacy Ordinance.

4. The allegation on its own that the summons is out of time is a matter which might be dealt with before the magistrate, and so too if it were merely a question of an absence of proof that the applicant were implicated in the alleged offence - that, too, is a matter which normally would be pre-eminently for the magistrate.

5. But there is at the heart of this application for leave an allegation, with evidence filed in support, that the magistrate was materially misled into issuing the summons. It is an allegation of abuse of process but for which, it is said, the proceedings would never have got off the ground.

6. The question which remained in my mind was whether, even so, that was not a matter which should be addressed by the magistrate. But there are a number of allegations which require, so it seems to me, special attention.

7. First it is said that the history and background of the case cannot be washed aside. Persons ought not to be subject to submission to the process of magistrate proceedings in criminal matters if there is clearly no jurisdiction and if also there is abuse, so the argument goes. The lack of jurisdiction is said to arise on the face of the summons and I have examined the summons and heard the argument in support, and that contention is clearly arguable. The abuse is said to arise in that it is said that evidence filed was materially misleading, but for which no summons would have been issued at all.

8. I have considered the question whether the allegation of abuse is an appropriate one to address to the magistrate. Although there is considerable authority in the United Kingdom at Divisional Court level that magistrates themselves can deal with abuse of process which goes to their jurisdiction, the point is not beyond argument (see the House of Lords decision in Humphreys [1977] 1 AC 1 at 26 and ex parte Sinclair [1991] 2 AC 64 at 78). I think it would be unhelpful in the circumstances to leave the matter open for potential argument before the magistrate.

9. Furthermore, the allegation here is that not only has there been abuse but that part of the abuse or the nature of the abuse is the desire simply to bring the applicant before the magistrates court.

10. Since it is argued that there is abuse and that contention, on the papers before me, is clearly arguable, and that its nature is in the nature which I have described, and since it is argued further - and that too is arguable - that there is no jurisdiction on the face of the summons for the magistrate to deal with the matter, I see cogent reasons for the contention that the applicant ought not to have to go through what might be extended proceedings before the magistrate and subsequent appeals, and should be entitled to apply to this court to put forward an argument which, if successful, would stop the case in limine. I agree with Mr Hoo that no comfort is provided in saying that section 18 of the Magistrate's Ordinance does not require his personal attendance when he is faced with a summons, and that a senior diplomat of whatever jurisdiction would not wish to be seen to refuse, on a basis of that kind, to obey a summons.

11. I am conscious of the fact that the proceedings in question before the magistrate are summary proceedings, and that summary proceedings are designed to be dealt with swiftly. However, given the history of this matter, speed can hardly be said to have been a prominent feature, and I do not think that sending this matter back to the magistrate is going to ensure speed. I have given some thought as to whether I should exclude the first ground of complaint from the granting of leave, namely, the question of the alleged offence being out of time, but since the time-bar point is inter-woven with the allegation of abuse, I shall not do so. It may be unnecessary for the judge who hears the substantive application to determine the continuing offence question as an issue in itself.

12. Accordingly, and for the reasons I have given, I have decided to grant to the applicant leave to apply for judicial review for an order of certiorari to quash the decision of the Principal Magistrate at the Eastern Magistracy on or about 1st May to issue a summons directed at the applicant which summons is dated 1st May 1998. I make an order in those terms.

13. Now there is an application by Mr Hoo for stay. Normally an application for stay would be heard inter partes. I notice that the hearing is next Tuesday. What I propose to do is to make an order for stay but to give liberty to the respondent, Miss Lau, to apply, if so advised, to this court between now and then to set aside the stay. I think that is the proper way of doing it.