YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE

CACV 368/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 368 OF 2005

(ON APPEAL FROM HCAL NO. 123 OF 2005)

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J U D G M E N T

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Hon Stock JA :

Introduction

1. This is an appeal from a refusal to set aside leave to apply for judicial review.  The history of this case, the details of which we shall not at this stage describe, provides a very good example of why the courts baulk at collateral challenges in the course of criminal proceedings.  It is a tortuous history bedevilled by applications for stay of proceedings and by applications for judicial review.  Applications to stay criminal proceedings have become highly fashionable and are commonplace.  It has to be said – without, for the moment, entering upon the merits of this particular case in that regard – as it has been said in other jurisdictions, that they are made all too frequently.  So too, it seems, is it becoming fashionable to mount collateral challenges in criminal proceedings.  We regret to say that it has become evident that that latter fashion has been encouraged by the decision in Dairy Farm Co Ltd v Director of Food and Environmental Hygiene [2005] 3 HKC 1, a decision that this division of the Court has since seen regularly cited and treated as a green light to collateral challenges in criminal proceedings and to invitations to courts effectively to assume the decision-making process that ought exclusively to be the province of the prosecutor.  In the light of that decision, the use or perhaps misuse of it; and of the fact that too little attention is paid too often to the exceptional circumstances in which stay applications, and collateral applications, are ever justified, it will be necessary at an opportune moment for this court to remind practitioners and first instance tribunals of the wealth of authority in this jurisdiction and elsewhere that explains the proper limits of stay applications, the need not to blur the function of prosecutors and judges, and of the strong presumption against entertaining judicial review applications that interrupt criminal proceedings; and to explain what it is that underlies the clear principles that have been established.  In the event, this has transpired not to be the occasion to do so, for the application before the first instance judge to set aside leave was predicated upon a narrow proposition, and the issue raised in this appeal is restricted to that proposition.  The sole question for our consideration is whether the judge below erred in holding that rejection by a trial judge of a plea of autrefois acquit was, because of the unusual characteristics of that legal animal, amenable to collateral challenge by judicial review or whether the alternative remedy of an appeal at the end of criminal proceedings is an adequate alternative remedy. 

This case

2. Given the limited basis upon which this appeal proceeds, it is not necessary for the purpose of this judgment to set out the facts upon which the plea in bar is raised, save to say that the applicants have been charged with two conspiracies, each to use a particular bank account knowing or having reasonable grounds to believe that the property constituted by the (separate) accounts directly or indirectly represented the proceeds of an indictable offence.  The challenge was launched in respect of one of those charges.  The plea was that the charge was based on substantially the same matters in respect of which the applicants had been acquitted in Macau.  The trial judge, albeit using the substantial similarity test – the correctness of which test the reviewing judge will, we anticipate, examine – rejected the plea, holding that the accused had never been in jeopardy of conviction in respect of any offence relating to the bank account in question; and he rejected also an application to stay the proceedings.

3. The application for leave to apply for judicial review was made ex parte, as the rules permit.  Notice of the ex parte application was not given to the respondent and, having studied the papers, Reyes J granted leave on 3 October 2005.

4. The application to set aside leave was restricted to the contention that:

“It is a founding principle of the judicial review jurisdiction that applications for judicial review should in most cases be applications of last resort and that other remedies should first be exhausted.  The applicants can challenge the ruling of His Honour Judge Wright by way of appeal upon the conclusion of the criminal trial and there are no exceptional circumstances in this case which warrants an interruption to the criminal process.”

5. In his decision dated 10 November 2005, by which he dismissed the respondents’ application to set aside leave, Reyes J said:

(1)   that in his judgment, there were special circumstances justifying the hearing of an application for judicial review “despite ongoing criminal proceedings”;

(2)   that the right which was asserted by the applicants, that is to say, the right not to be tried twice for substantially the same offence, was a serious and fundamental right at common law;

(3)   that if the applicants contention that they had already been tried for substantially the same offences were correct, to deny them the opportunity of testing by judicial review the District Court's decision would mean that “the applicants would be oppressed by the very wrong which they are seeking to avert.  The applicants would by the time of any appeal have already been tried twice.  A fundamental right (if valid) would have been rendered nugatory”; and

(4)   that, in his judgment, the applicants had an arguable case.

6. It is not entirely clear whether the learned judge was restricting himself to the plea in bar or going beyond that to grant leave on the question of discretion.  The phraseology used (“the right being asserted … the right not to be tried twice … their fundamental right … would have been rendered nugatory”) is referable to a plea in bar; though in that he says that they would otherwise “be oppressed by the very wrong which they seek to avert” that may or may not be a reference to the discretionary power. 

Pleas in bar

7. There are two forms of plea recognized by the criminal law.  They are special pleas and general pleas.  Special pleas are pleas to the jurisdiction; demurrer; and special pleas in bar.  Special pleas in bar are rare.  A pardon is a special plea in bar; and so are the pleas of autrefois acquit and autrefois convict.  See Stephen’s Commentaries on the Laws of England, 21^st ed, p 254 et seq., and Archbold 2006, para. 4 – 114.  Section 50 of the Criminal Procedure Ordinance, Cap 221, itself refers to the plea of not guilty as one that constitutes ‘pleading generally’.

8. The autrefois pleas are “grounded on the universal maxim of the Common Law, that no man is to be brought into jeopardy more than once for the same offence” see Stephen’s Commentaries, above, at p. 255.  The principle encapsulated by the maxim, the importance of the right thereby protected, is fundamental.  It has been said of the rule against double jeopardy that: “No other procedural doctrine is more fundamental or all – pervasive.”:  Professor Friedland ‘Double Jeopardy’, Oxford University Press (1969), p. 3; and that the pleas ‘… give effect to the vital constitutional principle that no one shall be prosecuted twice to acquittal or conviction for the same offence.’:  Emmins on Criminal Procedure, 9^th ed. (2002) p. 254.  The Basic Law encapsulates that protection by reason of article 39 and its application of the International Covenant on Civil and Political Rights (ICCPR), article 14(7) of which states that:

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”

That article of the ICCPR is repeated with an appropriate adaptation by article 11(6) of the Hong Kong Bill of Rights Ordinance. 

9. The present case is concerned with the effect of previous foreign rather than domestic proceedings.  The English position is that a conviction and an acquittal by a foreign court of competent jurisdiction is equally a bar to an indictment in this jurisdiction for the same offence: see Archbold 2006 para. 4-130 and the cases there cited.  Mr McCoy SC informs us that that is not the universal approach.  Mr McCoy asserts that this will need to be canvassed in the judicial review.  Mr Zervos SC says that since the District Court Judge proceeded on the assumption that the English position applied it will be unnecessary to canvass this in the judicial review.  We will assume, only for the purpose of this appeal, that the English position applies here.  If that is so, then the fact that the case is concerned with the effect of previous foreign proceedings does not, despite the wording of article 14(7) of the ICCPR and of article 11(6) of the Bill of Rights Ordinance, detract from the fundamental importance of the doctrine.

10. There is a distinction between the plea of autrefois acquit and autrefois convict.  Autrefois acquit is a “species of estoppel by which the [prosecuting authority] is precluded from reasserting the guilt of the accused when that question has previously been determined against it.  Autrefois convict, on the other hand, is akin to merger.”: Spencer Bower, Turner and Handley, ‘Res Judicata’, 3^rd ed., para. 309.  We are in this case concerned with a plea of autrefois acquit; and autrefois acquit ‘is the plea by which the principles of estoppel are applied in the criminal law to preclude a second prosecution of an accused for a crime for which he has been acquitted’.  The plea ‘operates to prevent the prosecution from asserting the contrary of what has previously been judicially determined in favour of an accused’: see Rogers v The Queen (1994) 181 CLR 251, 276.

11. It is evident therefore that if the circumstances fall within the limits to which the pleas apply, then the bar is a matter of right, not of discretion: see Connelly v DPP [1964] AC 1254, 1362, per Lord Pearce.  The plea, properly defined, is a plea in bar and if successful bars the proposed substantive proceedings.  The burden of making good the plea is on the accused:  R v Marsham [1912] 2 KB 362.  The plea, if it is to be advanced, should be made before arraignment: see R v Brightwell [1995] 2 NZLR 435.  But the failure to do so will not preclude a court subsequently from trying the issue.  Indeed, so important is the doctrine, that no person shall twice be put in peril for the same offence, that it is incumbent upon an appellate court to consider a plea in bar notwithstanding a plea of guilty at first instance: see Cooper v New Forest District Council [1992] Crim L R 877.

12. Since a plea in bar does not involve the exercise of a discretion and is a right, there is force in the point made by Reyes J that requiring a defendant to travel the appellate route in the face of a failed plea may effectively be to render the right nugatory.  That however begs the vital question as to the ambit of a plea in bar.

Conclusion

13. The grounds of appeal before us did not advance the suggestion – and we see that the notice of application to set aside did not do so either – that the plea of autrefois acquit was not arguable and that for that reason leave should have been refused.  That was a line of argument that Mr Zervos sought to pursue at the hearing in January 2006 but it became evident that, if pursued, an adjournment would be required and he took the decision not to pursue the arguability point.  In the course of research conducted by this court after the hearing in January 2006, we examined academic articles as well as case law that had not been referred to us and it appeared to us, from that material, that the availability of the plea in bar was very limited indeed, so much so that we invited counsel back to address us further, suggesting the possibility of an application to amend the notice of appeal and if such an amendment were allowed, to hear argument as to whether it was even arguable in this case that the plea was available.  We were addressed on the question whether this invitation was a proper use of our appellate jurisdiction, and we considered as well the question whether, were that course to be adopted, the already convoluted and prolonged history of these collateral proceedings might be aggravated rather than shortened.  We thought that aggravation was a more likely scenario and accordingly we refused leave to amend.

14. Much of what we have perused in the texts and authorities, a list of which we have drawn to counsel’s attention, most particularly in the decision of the High Court of Australia in Pearce v The Queen [1998] 194 CLR 610 as well as in a number of English cases, suggests that the circumstances in which a plea of autrefois acquit can succeed are narrow and well defined and will very rarely arise, and that the test of substantial similarity is not the correct test.  Those limits will no doubt be the subject of argument before the judge at first instance.  But it suffices to say at present that although in our judgment rejection of a plea of autrefois acquit, properly defined, may be the subject of a collateral challenge, the mere failure of such a plea will not of itself be sufficient cause for an application for judicial review, for it will be incumbent upon a judge to whom an application for leave is made to recognize the limits of such a plea; to recognize the distinction between the right, on the one hand, not to be tried for the same offence and on the other, the fact that when there is an application for a stay based on suggested abuse or oppression, the result depends not upon a right but upon the exercise of a discretion.  Whether this particular case falls within the limits of a plea of autrefois acquit, properly delineated, must abide the anticipated determination of the proper limits of such a plea, and given that the argument to which the respondent Secretary has restricted himself in the application to set aside and in this appeal does not for either purpose encapsulate that issue, that determination must await argument before the reviewing judge.  As it is, the sole argument is that the application for leave had to be rejected because the alternative route of appeal is inevitably more apposite in autrefois cases.  For the reasons we have provided, it cannot be said that in a proper case within this limited category, judicial review is nonetheless inapposite.  What is a proper case depends upon the limits of the plea, which is an issue to be argued.  In such circumstances, we cannot say that the judge was wrong to refuse to set aside leave and, accordingly, this appeal must be, and is, dismissed

15. The order nisi as to costs that we make is that they be the costs of the application for judicial review.