YEUNG CHUN PONG AND ANOTHER v. SECRETARY FOR JUSTICE

CACV 102/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 102 OF 2005

(ON APPEAL FROM HCAL No. 22 OF 2005)

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.  On 15 March 2005, Reyes J granted “an order of mandamus requiring Mr Ian Candy, a permanent magistrate to consider the autrefois pleas of the 1^st, 3^rd and 4^th applicants.

2.  This is the prosecution’s appeal.

3.  Since the decision, on 28 April 2005, the Secretary for Justice has applied for and obtained an order to transfer the case to the District Court, as a result, the proceedings before the magistrate has been stayed under Section 89 of the Magistrates Ordinance.

4.  The respondents (who were the 1^st, 3^rd and 4^th applicants below) have submitted that having regard to the transfer, the appeal is academic and that we should decline to deal with it.  For reasons which will appear below we have decided to hear the appeal.

5.  The respondents have been charged with the offence of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to Sections 159A and 159C of the Crimes Ordinance, Cap. 200 and Section 25(1) of the Organized and Serious Crimes Ordinance, Cap. 455 (the charge).

6.  The particulars of offence alleged that between 30 June 1998 and 3 September 1999, in Hong Kong, they conspired together and with other persons unknown to use a bank account at the Hang Seng bank account No. 275-1-076874 in the name of Tse May-wah, to deal with property, mainly HK$ 216,152,319, knowing or having reasonable grounds to believe that the said property in whole or in part, directly or indirectly represented the proceeds of indictable offence.

7.  It is the respondents’ case that in March 2002, they had been tried in the Macau Criminal Court for two offences:  illegal bookmaking and money laundering.  They were convicted of illegal bookmaking, but acquitted of money laundering.  They contended that the Charge was based on substantially the same matters on which they had been convicted or acquitted of offences in Macau, and that accordingly, they are entitled to rely on such proceedings in support of the autrefois plea.

8.  We should mention at the outset that although it may be convenient to describe the respondents’ plea as an autrefois plea, the autrefois plea (whether of acquit or convict) is

“	(1)	… applicable only where the same offence is alleged in the second indictment.
	(2)	However, the judge has discretion to stay the proceedings where the second offence arises out of the same or substantially the same set of facts as the first.  That discretion should be exercised in favour of an accused unless the prosecution establishes that there are special circumstances for not doing so.”  (See R v Beedie [1997] 2 Cr. App. R. 167 (headnotes))
	Connelly v DPP [1964] AC 1254

9.  Thus, the autrefois plea only applies where the same offence is alleged in the second indictment.  The plea, which is relied on by the respondents, is an “extended autrefois plea”.  The court’s jurisdiction to stop the second proceedings on the basis of an extended autrefois plea is based on the court’s “responsibility for seeing that the process of law is not abused” per Lord Devlin in Connelly.  Indeed, the autrefois plea itself was evolved from the court’s inherent power to protect its process from abuse.  “But there is no reason why these two pleas (autrefois convict and acquit) should exhaust the inherent power of the court” per Lord Pearce at 1362:

10.  Lord Pearce went on to say at 1364:

“The above cases show that a narrow view of the doctrines of autrefois acquit and convict, which has at times prevailed, does not comprehend the whole of the power on which the court acts in considering whether a second trial can properly follow an acquittal or conviction.  A man ought not to be tried for a second offence which is manifestly inconsistent on the facts with either a previous conviction or a previous acquittal.  And it is clear that the formal pleas which a defendant can claim as of right will not cover all such cases.  Instead of attempting to enlarge the pleas beyond their proper scope, it is better that the courts should apply to such cases an avowed judicial discretion based on the broader principles which underly the pleas.”

11.  In this appeal, it is unnecessary to distinguish between an autrefois plea and an extended autrefois plea.  They shall be referred to as the autrefois plea.

12.  In Chen Chong Gui v Senior Superintendent of Lai Chi Kok Reception Centre and Anor [1998] 1HKC 522 (Chen Chon Gui), an extradition case based on Schedule 1 of the Extradition Act 1989, all three members of the court found it necessary to consider whether the autrefois plea could be determined by a magistrate in committal proceedings.  Mortimer VP (as he then was) at 529H, Godfrey JA at 533H, Rogers JA (as he then was) at 538A.  They concluded that a magistrate had no jurisdiction to deal with the plea in committal proceedings.  See 530A, 534D and 539H respectively.

13.  The judge took the opposite view and said that:

“

60.

Given that (as even Lord Lowry accepts) it is an abuse of process in the sense identified by Lord Griffith, to charge a person twice for the same offence, it follows from the majority view that an autrefois pleas is something that a magistrate can consider in committal proceedings as part of the abuse jurisdiction upheld in Bennett.”

14.  In Reg v Horseferry Road Magistrates’ Court, ex parte Bennett [1994] AC 42 (Bennett), the defendant, who was forcibly returned to England notwithstanding he could have been returned to England lawfully, applied for an adjournment at his committal proceedings to challenge the court’s jurisdiction.  The adjournment was refused and he was committed to trial.  The defendant then sought judicial review of the magistrate’s decision.  The Divisional Court refused the application holding that the court had no power to inquire into the circumstances under which a person appearing before it had been brought within the jurisdiction.  The point of law of general public importance which was certified for the consideration of the House of Lords was (at 46B):

“whether in the exercise of its supervisory jurisdiction, the court has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if so what remedy is available if any to prevent his trial where that person has been lawfully arrested within the jurisdiction for a crime committed within the jurisdiction”. 

The answer given to the question by the majority (Lord Oliver of Alymerton dissenting) was:

“The High Court in the exercise of its supervisory jurisdiction has power to inquire into the circumstances by which a person has been brought within the jurisdiction and if satisfied that it was in disregard of extradiction procedures it may stay the prosecution and order the release of the accused.” (per Lord Griffiths at 64E)

15.  At 64B, regarding the jurisdiction of committing magistrates to deal with abuses of process, Lord Griffiths said:

“I would accordingly affirm the power of magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction.  However, in the case of magistrates, this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures.  Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures.  I adhere to the view I expressed in Reg. v Guildford Magistrate’s Court, ex parte Healy [1983] 1WLR108 that this wider responsibility of upholding the rule of law must be that of the High Court and that if a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken.” 

16.  However, the judge relied on the fact that Lord Lowry in his speech had said:

“Whether the proposed trial will be an unfair trial is not the only test of abuse of process.  The proof of a previous conviction or acquittal on the same charge means that it will be unfair to try the accused but not that he is about to receive an unfair trial” (At page 74C)

17.  It will be noted that in the passage quoted in para. 15 above, Lord Griffiths was dealing with the power of magistrates, “whether sitting as committing justices or exercising their summary jurisdiction”.  It is uncontroversial that magistrates exercising their summary jurisdiction can deal with the autrefois plea.  Section 31 Criminal Procedure Ordinance, Cap. 221 so provides in Hong Kong.  We also believe that a magistrate exercising his summary jurisdiction must have “an inherent power to protect its process from abuse” per Lord Pearce in Connelly at 1361.  A question on this appeal is the extent of a committing magistrate’s inherent power.  In this context it will be necessary to examine the nature of the committal process, and hence, the process which must be protected from abuse.

18.  We do not believe Bennett had decided that a committing magistrate had a general jurisdiction to deal with allegations of abuse of process.  Lord Griffiths was careful to restrict a magistrate’s power to “matters directly affecting the fairness of the trial of the particular accused” which is an issue different from whether it would be unfair to try the accused.  An unfair trial may be occasioned when, for example:

“… In Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr. App. R. 164, 168-169, Sir Roger Ormrod said:

“The power to stop a prosecution arises only when it is an abuse of a process of the court.  It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable … The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution.”

The fact that Lord Lowry regarded trying a person twice is an abuse of process does not justify giving Lord Griffiths’ words wider meaning.

19.  Indeed, Lord Lowry took a narrower view than Lord Griffiths on the power of a committing magistrate, he said at 80E that he:

“would not be easily persuaded that examining magistrates have jurisdiction to stay committal proceedings for abuse of process”.

Lord Lowry concluded that, having regard to the function of an committing magistrate, he had no such jurisdiction. 

20.  Lord Lowry also said at 80D:

“What I have said is not of course intended to detract from the power of the court of trial itself, as the primary forum, to stay proceedings as an abuse of process, but the convenience of staying the proceedings at an earlier stage is obvious, when that can be properly done.”

21.  However, it is clear that in context he was referring to the power of the High Court in the exercise of his supervisory jurisdiction to stop committal proceedings for abuse in addition to the power of the court of trial to deal with the matter. 

22.  Bennett was cited to this court in Chen Chong Gui and Rogers JA referred to it at 540B:

“I would add that in coming to this conclusion I have not overlooked the decision of the House of Lords in the case of R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] AC 42.  That case involved committal proceedings and the question that arose was whether the proceedings were an abuse of the process. The House of Lords held that the magistrate, whether sitting as a committing magistrate or exercising the power of summary jurisdiction, had the power to control an abuse of jurisdiction but that power should be strictly confined to matters directly affecting the fairness of the trial if the particular accused.  The wider responsibility for upholding the rule of law was that of the High Court and if issues as to that arose the matter should be adjourned to allow the High Court to deal with it.”

23.  With respect, we believe that to be a correct understanding of Bennett.  We do not believe the judge was right when he said that it was:

“

60.

…the majority view that an autrefois plea is something that a magistrate can consider in committal proceedings as part of the abuse jurisdiction upheld in Bennett.”

24.  The judge went on to say in paras. 61 and 62:

“	61.	It may be, as Rogers JA and Lord Lowry indicate, that certain “rule of law” issues are more appropriately dealt with by a magistrate adjourning the matter to the High Court.
	62.	But in this case the magistrate is merely concerned with the question whether some of the applicants will be tried twice for the same or similar offence.  If they are, there is unfairness and an abuse of process.  The issue involved is limited and one which magistrates are perfectly capable of deciding.  In this last respect, I note that, in contrast to England where some magistrates are laymen, all magistrates in Hong Kong are experienced lawyers.”

25.  We believe that neither the House of Lords in Bennett nor Rogers JA in Chen Chong Gui was merely of the view that some rule of law issues are more “ appropriately” dealt with by a magistrate adjourning the matter to the High Court.  

26.  We should also mention that Lord Oliver who dissented said at 73F:

“I would only add that if, contrary to my opinion, such an extended jurisdiction over executive abuse does exist, I entirely concur with what has fallen from my noble and learned friend, Lord Griffiths, with regard to the appropriate court to exercise such jurisdiction.” 

27.  To this we should add that in fact, Lord Griffiths’ view as to the limited jurisdiction of committing magistrates to deal with abuses formed the majority view.  As we have seen, Lord Lowry’s view (in the minority was that committing magistrates did not even have any jurisdiction to deal with abuses.  He referred to authorities such as Grassby v The Queen (1989) 168 CLR 1.

28.  The judge also relied on Article 11 (6) of the Hong Kong Bill of Rights to justify not following Chen Chong Gui.  Article 11(6) provides:

“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 Hong Kong.”

29.  The judge was of the view that Article 11(6) requires a committing magistrate to determine a defence based on Article 11(6).

30.  Article 11(6) does not apply to convictions or acquittals by a foreign court.  It is therefore narrower than the protection available at common law.  Unless Article 11(6) confers some advantages on an accused which are not available at common law, it will be unnecessary to rely on Article 11(6). 

31.  Now a defence based on autrefois convict or acquit can be raised at the court of trial.  In the case of a summary trial, the trial court is the magistrates court.  In other cases, it is either the District Court or the High Court.  Also in clear and obvious cases, proceedings could be stayed by the High Court under its supervisory jurisdiction.  The issue in this appeal is whether Article 11(6) requires that in cases tried on indictment, a committing magistrate be given jurisdiction to deal with a defence based on Article 11(6).

32.  Here, the respondents rely on their convictions and acquittals in Macau.  So Article 11(6) has no direct application.  But, if Article 11(6) requires a defence based on it (the Article 11(6) plea) to be dealt with by a magistrate in committal proceedings, that is a strong reason to imply at common law a similar power to deal with the autrefois plea.  Thus, we must consider whether Article 11(6) requires an earlier determination of the defence.

33.  The judge described counsel’s suggestion “that, merely because one has a right, does not mean that one can assert it at the earliest opportunity or whenever one wants” “as inimical to the nature of an inalienable right”:

34.  The judge said:

“	37.	But the suggestion is inimical to the nature of an inalienable right.  If it is cardinal principle that a person should not be twice vexed by charges for the same offence, why should one not be allowed to raise the matter at the earliest opportunity, say when one is charged and first brought before the magistrate?  Why should the assertion of a right have to wait, possibly months or (as will be the case here) nearly 2 years later, until the time when one is committed to trial before a specific tribunal?
	38.	The reason why a right is fundamental must be because society values it so highly that its exercise should not be curtailed any more than is absolutely necessary.  To say that committal forms part of a trial does not provide a substantive reason why the assertion of a fundamental right should be postponed, to await committal to trial before a particular court on some (possibly) long distant day.
	39.	As far a I can see, there is no good substantive policy reason for insisting that the assertion of an autrefois plea be delayed until a trial venue has been determine.  On the contrary, as Mr Dykes submits, there is every reason why it should be capable of assertion at the earliest stage. For instance, time and money may be saved by having the legitimacy of the plea resolved one way or another at the outset.”

35.  Article 11(6) is silent on when the right conferred by it may be asserted.  Just as Article 11(2)(c) requires that “in the determination of a criminal offence everyone shall be entitled to the following guarantee, in full equality — (c) to be tried without undue delay”, we would proceed on the basis that one should have an opportunity to assert the protection of the Article 11(6) (to raise the Article 11(6) plea), without undue delay.  It is to be noted that Article 11(2) does not require criminal proceedings literally to be determined at the “earliest stage”.  “To be determined at the earliest stage” is not different from “to be determined without undue delay”.

36.  We believe in determining whether there is undue delay one is entitled to have regard to the nature of the offence and the procedure provided for their determination (see for example, Dyer v Watson [2004] 1 AC 379 at 402 per Lord Bingham of Cornhill).

37.  Here, the question is whether there is undue delay in the determination of an Article 11(6) plea if a magistrate cannot deal with such a plea on committal.  As we have said, it can be taken at trial.  Also, in a clear and obvious case, for example, A who was acquitted of the murder of B, was rearrested on the next day and charged with the murder of B, there is no reason why A should even wait for the committal.  In that case “… the convenience of staying the proceedings at an earlier stage is obvious” Bennett ibid per Lord Lowry at 80.  But the court to exercise the power would be the High Court in its supervisory jurisdiction over the prosecuting authorities in Hong Kong.  Since an Article 11(6) plea to an indictable offence can be taken before the trial court or the High Court in its supervisory jurisdiction, does the Bill of Rights require more?  We think not.

38.  We turn to examine the committal process in some detail.

39.  Part 3 of the Magistrates Ordinance deals with indictable offences. 

40.  In a case where a complaint or information is laid before a magistrate (usually by the Secretary for Justice), the magistrate may issue a warrant to apprehend the accused or issue a summons directed to the accused requiring him to appear before a magistrate at a time or place therein mentioned.  Then, under Section 80A when the accused appears or is brought before a magistrate upon an allegation of the commission of an indictable offence, the magistrate may and shall if, the prosecution so requires, appoint a day for the continuation of the committal proceedings (the return day).  A magistrate may from time to time thereafter appoint another return day in the place of the return day previously appointed.  The complaint and witness statements etc. shall be served not less than 7 clear days before the return day.  Section 80C deals with the procedure on the return day.  On the return day unless the accused elects to have the charges heard at a preliminary inquiry, he will be committed without such an inquiry.  If the accused does not elect to have the charge against him heard at a preliminary inquiry than under Section 80C(3), the magistrate shall inform the accused that:

“…
(b)	unless he pleads guilty to the charge, he will forthwith be committed for trial without an inquiry; and
(c)	after committal for trial he has the right to apply once only to a judge for discharge on the grounds that there is no prima facie case against him.”

41.  If the accused elects to have the charge against him heard at a preliminary inquiry, there shall be a preliminary inquiry which will be held pursuant to Section 81.  If the accused elects to have a preliminary inquiry than one shall be held in accordance with Section 81. 

42.  Then, we come to Section 85:

“85.  Discharge or committal of accused
(1)	If after hearing all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses and after taking into consideration any statement made by the accused, the magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, the magistrate shall forthwith order the accused, if in custody, to be discharged as to the complaint or information then under inquiry, but such discharge shall not be a bar to any subsequent complaint or information in respect of the same facts.
(2)	If in the opinion of the magistrate, after hearing such evidence as aforesaid and taking into consideration any statement of the accused, such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order that the accused stand committed for trial at the Court of First Instance and shall so inform the accused or cause him to be so informed.”

43.  As Mortimer VP said in Chen Chong Gui at 530C:

“The magistrate has no jurisdiction to try indictable offences.  Committal proceedings are only held for indictable offences.  Committal proceedings are not a trial.  No plea is taken and indeed no plea can be taken by the magistrate save as is specifically provided by Section 81B of the Magistrates Ordinance.”

Nor can a person accused of an indictable offence insist on being tried by a magistrate.  Basically, the jurisdiction of a committing magistrate is to be found in Section 85.

44.  We also believe it is not controversial (at least where Article 11(6) has no application) that an accused cannot complain of undue delay under Article 11(2)(c) because he was brought before a magistrate first.

45.  Nor do we believe it to be unreasonable that in respect of an offence to be tried on indictment, all pleas or defences to such an offence should be required to be made at the trial court.  Another way of putting it, is to say that it is not unreasonable that a court which has no jurisdiction to try the offence should not deal with such pleas or defences.  The fact that magistrates in Hong Kong are experienced lawyers is not a sufficient reason for conferring such jurisdiction on them.

46.  Some indictable offences can be tried in the District Court.  Part IV of the Magistrates Ordinance deals with the transfer of such offences to the District Court.  Section 88 provides that a magistrate, upon application made by or on behalf of the Secretary of Justice shall make an order transferring the charge or complaint in respect of the indictable offence to the District Court.  Under Section 89 an order of transfer operates as stay of proceedings before the magistrate.  Section 90 requires the magistrate upon making an order of transfer under Section 88 to appoint a day whereon the accused person is to appear or be brought before the district court etc. 

47.  If the Article 11(6) plea “should be capable of assertion at the earliest stage”, does it mean that a magistrate can be required to deal with such a plea before deciding on a transfer?  We think not.

48.  Mr Dykes relied on “liable to be tried” in Article 11(6) and submitted that:

“The word, ‘liable’ was inserted to emphasise that the prohibition was not just aimed at undergoing another trial and punishment so that a person did not have to be tried or punished before the right crystallized”

49.  But it does not follow the plea must be allowed to be taken as a preliminary point so that a magistrate cannot wait until the end of the committal before dealing with it because otherwise the accused could be said to have undergone a committal unnecessarily.  We do not believe a system whereby such pleas should normally only be taken at trial after committal or transfer under Section 88, though, in suitable cases, the High Court in exercise of it is supervisory power may deal with the matter earlier, is inconsistent with Article 11(6).  There is no undue delay.

50.  Nor do we believe Bennett has conferred on a committing magistrate the jurisdiction to deal with an autrefois plea as an abuse of process.  We believe that the jurisdiction of a committing magistrate to deal with abuse of process must be strictly confined to abuses directly affecting the fairness of the committal process, such as delay or unfair manipulation of court procedures. 

51.  Mr Dykes has also drawn our attention to the Fugitive Offenders Ordinance, Cap. 503 which came into effect on 25 April 1997.

52.  Since then, in extradition proceedings,

“A person shall not be surrendered …, if it appears to an appropriate authority – (e) that if the offence had occurred in Hong Kong, the law of Hong Kong relating to previous acquittal or conviction would preclude the prosecution, or the imposition or enforcement of a sentence, in respect of that offence.”  (Section 5(1)(e))

The “appropriate authority” means:

“	(a)	the Chief Executive;
	(b)	the Court of committal; or
	(b)	the Court of First Instance on an application for habeas corpus or for judicial review of the order of committal.” (Section 5(7))

53.  Mr Dykes argued that since Chen Chong Gui has been reversed by the Fugitive Offenders Ordinance, there is no good reason why a committing magistrate dealing with an indictable offence should not have similar powers or duties.

54.  We believe there is an important difference between extradition proceedings and committal proceedings.  In the case of extradition proceedings, a person would not have the protection of a trial in Hong Kong where such pleas can be made.  Also, Section 85 of the Magistrates Ordinance has not been amended.  We do not believe the Fugitive Offenders Ordinance requires or permits us to construe Section 85 differently.  If anything, the non-existence of a provision such as section 5(1)(e) of the Fugitive Offenders Ordinance in the Magistrates Ordinance as far as committal proceedings are concerned, is a point against the applicants.

55.  Mr Dykes has also referred us to R (Kashamu) v Governor of Brixton Prison and another [2002] QB 887, a decision of the Divisional Court in England.  There, in extradition proceedings the High Court had quashed the committal for material non-disclosure but the applicant was detained immediately on a second warrant.  The applicant was detained in response to an extradition request from Government of the United States of America in respect of serious drugs offences.  The court at the second committal proceedings refused to hear a submission that the second committal was an abuse of process on the ground that the appropriate jurisdiction was that of the High Court on a writ of habeas corpus.

56.  Rose LJ giving the judgment of the Division Court said:

“	30.	… Put another way, both section 11(3) and paragraph 6(1) of Schedule I (Extradition Act 1989) can, and in my judgment should, be so read as to enable both the High Court and a committing magistrate to consider the lawfulness of detention under article 5(4).
	…
	32.	What is in issue in the present case is whether, when lawful extradition procedures are being used, a resultant detention may be unlawful by virtue of abuse of the court’s process.  The magistrates’ court, rather than the High Court, is, in my judgment, the appropriate tribunal for hearing evidence and submissions, finding facts relevant to abuse and doing so speedily.  …”

57.  He then concluded that the Magistrates’ Court rather than the Divisional Court in the exercise of its supervisory jurisdiction was the preferred forum.  It is to be noted that paragraph 6(1) of Schedule 1 to the Extraditions Act 1989 expressly provides a magistrates court with the same powers in extradition proceedings “as if the proceedings were the summary trial of an information”.

58.  If the same point were to arise in extradition proceedings under the Fugitive Offenders Ordinance, it may be that the same conclusion will be reached.  Similarly, in committal proceedings, except in clear and obvious cases, we believe the trial court is likely to be regarded as the more appropriate tribunal than the High Court in its supervisory jurisdiction.  We do not believe Kashamu assists the respondents.

59.  Mr Dykes also referred us to R v Croydon Justices, Ex parte Dean [1993] QB769, and Reg. v Telford Justices Ex parte Badhan [1991] 2 QB 78,81.

60.  Ex parte Badhan was cited by Lord Griffiths in Bennett  at 63H on the abuse of process jurisdiction of a magistrate.  There, the examining justices refused to inquire into an offence for abuse of process because a prosecution was brought so long after the commission of the offence that it was no longer possible for the accused to have a fair trial.  That decision was affirmed by the Divisional Court.  No doubt the delay meant that the accused could not have a fair committal either.

61.  Ex parte Dean was cited by Lord Griffiths at 61G as an example of the exercise by the Divisional Court of its supervisory power to quash committal proceedings for abuse.  In that case the accused had been assured by the police that he would not be prosecuted for any offence connected with a murder investigation and in the circumstances it was an abuse of process to prosecute him in breach of that promise.

62.  Lastly, we return to the submission that the appeal is academic.  We believe there is good reason in the public interest to entertain the appeal.  Chit Fai Motors Co. Ltd v Commissioner for Transport [2004] 1 HKC 465.  We are concerned with a question of statutory interpretation which requires clarification, and determination, not least because of the conflict between the decision and Chen Chong Gui.

63.  We should mention that in the application the respondents also asked the court in its supervisory jurisdiction to stop the committal proceedings for abuse.  The judge did not deal with it on that basis.  We do not believe a sufficiently clear case has been made out for such relief.  There is no cross appeal or respondent’s notice seeking such relief.

64.  For the above reasons, we allow the appeal and the order of mandamus is set aside.  We also make an order nisi that the appellant is to have the costs here and below to be taxed if not agreed.