MUHAMMAD RIAZ KHAN v. CHIEF EXECUTIVE AND ANOTHER

HCMP 1318/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1318 OF 2016

(ON AN INTENDED APPEAL FROM HCAL NO 121 OF 2015)

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REASONS FOR JUDGMENT

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Hon McWalters JA (giving the reasons for judgment of the court):

1.  This is an application for an extension of time to appeal a judgment of Barnes J (“the judge”) in which she refused the applicant leave to judicially review the decision of the 2^nd respondent not to refer the applicant’s criminal case to the Court of Appeal pursuant to the power contained in section 83P of the Criminal Procedure Ordinance, Cap 221 (“CPO”).

2.  At the hearing of the application we dismissed it and said we would hand down our reasons for doing so at a later date.  This we now do.

The background to the application

3.  The applicant, with two others, was convicted in March 2003, after trial in the High Court of the offence of conspiracy to traffic in 1.9 kilogrammes of heroin and sentenced to 24 years’ imprisonment. The applicant, D2 at trial, and his co-accused, D1 and D3 at trial, all appealed their convictions.  The convictions of the co-accused were quashed because of a misdirection by the trial judge in respect of the presumption contained in section 47(1) of the Dangerous Drugs Ordinance, Cap 134. The effect of the judge’s direction was to reverse the burden of proof on the issue of the accuseds’ knowledge of the presence of dangerous drugs in a suitcase to which they could be linked.  This direction did not apply to the applicant who could not be linked to the suitcase.  The Court of Appeal considered whether this misdirection could have affected the applicant’s trial and concluded that it did not impact upon the safety of the applicant’s conviction.[1] On 22 May 2007 the Court of Appeal dismissed the appeal of the applicant and ordered a retrial of the co-accuseds.  At their re-trial the co-accuseds pleaded guilty.

4.  On 25 January 2013 the applicant presented a petition to the Chief Executive asking for his case to be remitted to the Court of Appeal under section 83P of the CPO.  The grounds relied on were:

“In convicting [the co-accuseds], 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 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.”

5.  The Secretary for Security (“SS”) in a letter of 8 April 2014 expressed a provisional view unfavourable to the applicant. On 20 June 2014 Mr Philip Ross of counsel, who also appears for the applicant on this application, replied to the letter of the SS.  In that letter Mr Ross set out the applicant’s argument.  In a nutshell it was:

(i) in order to convict the applicant of conspiracy the jury would have to find that he reached an unlawful agreement with either D1 or D3 or both of them;

(ii) relevant to that issue was the question of whether D1 or D3 or both of them knew that the suitcase of which they had physical possession, contained dangerous drugs;

(iii) if the jury did consider that question in the applicant’s case then they might have wrongly used the presumptions to answer that question affirmatively; and

(iv) if, in determining the applicant’s guilt, the jury did consider the question in (ii) above and if the jury answered that question affirmatively by recourse to the presumptions, as per (iii) above, then its reasoning that underlay its finding that the applicant was guilty was likewise tainted by reliance on the presumptions.

6.  On 17 July 2014 the Solicitor General (“SG”) issued a note to the SS providing an analysis of the arguments advanced on behalf of the applicant and expressing the view that there was no merit in them, describing them as repeating the complaints set out in the petition “by arguing the same ground through another route.”  The argument that the jury might have wrongly relied on the presumption as part of its reasoning process was described by the SG as “speculative”.

7.  On 26 November 2014 the SS prepared a set of minutes for the Secretary for Administration which set out the background, the grounds in support of the petition and the SG’s views on the merits of the petition.  On 28 November 2014 the SS informed the applicant that his petition would not be acceded to.

8.  The applicant then applied for legal aid and, on 12 January 2015 the Director of Legal Aid wrote to Security Bureau requesting the reasons for the decision so it could consider the merits of a judicial review.  In her judgment the judge described the SS’s response of 9 February 2015 as follows:

“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’s 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.”

9.  After receiving these reasons the Director of Legal Aid granted a legal aid certificate, dated 18 February 2015, appointing Messrs Massie and Clement as solicitors for the applicant.  Subsequently Mr Ross was assigned as counsel for the applicant.  A request was made to the SS for disclosure of the relevant papers and these were forwarded to Messrs Massie & Clement on 22 May 2015.

10.  By a Form 86 dated 7 July 2015 the applicant sought leave to apply, out of time, to judicially review the decision refusing his petition.

The Form 86

11.  The Form 86 makes it clear that what is being challenged is the decision communicated to the applicant on 28 November 2014 which was based upon reasons set out in the letter of 9 February 2015.

12.  In respect of this decision and the reasons upon which it was founded the applicant set out two grounds on which he sought relief. The first ground is that the 2^nd respondent took into account irrelevant considerations and the second ground is that the 2^nd respondent failed to take relevant considerations into account.

13.  In respect of the first ground of taking into account irrelevant considerations the applicant relies on a statement in the letter of 9 February 2015 that the argument of Mr Ross in his letter of 20 June 2014 was “an argument on the same ground as relied upon by the Petitioner through another route and has no merit.”  The applicant says this is wrong as a characterisation of the applicant’s petition as the petition and Mr Ross’s letter both advanced the same argument.  The applicant suggests that the SS is wrongly regarding the petition argument as being the same argument that was rejected by the Court of Appeal.  That argument was an argument based on the jury mistakenly applying the presumptions in the applicant’s case even though expressly directed not to do so.

14.  In respect of the second ground on which relief is sought the applicant again relies upon the same statement in the letter of 9 February 2015 (ie “an argument on the same ground ... through another route ...”) and argues that either the 2^nd respondent wrongly understood the argument or, if he correctly understood it, he has not shown in his reasons that he had taken the applicant’s reasoning into account.  His reasons do not address the applicant’s argument and do not provide reasons for coming to the conclusion that the argument has no merit.

The judgment refusing leave

15.  After setting out the factual background and correctly directing herself on the applicable law the judge turned to a consideration of the merits of the application in the course of which she noted:

“ 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[2], the Applicant’s argument as put by him had been correctly stated.”

16.  The judge concluded that on the basis of the documents before her, it could not be said that the applicant’s argument was not referred to or had been misunderstood.

17.  Of the statement that the argument in Mr Ross’s letter was “an argument on the same ground ... through another route ...” the judge said:

“ 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.”

18.  The judge went on to reason that if the SG and the SS both knew what was the applicant’s argument “it is difficult to see how they could have or would have failed to consider the very argument under consideration.”

19.  The judge then concluded:

“ 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.

...

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.”

20.  As the application for leave was filed out of time it was necessary for the applicant to seek an extension of time.  Though not strictly necessary for her to do so the judge considered the issue of the applicant’s delay.  After considering the explanation advanced on behalf of the applicant the judge concluded:

“ There is no good reason shown as to why an application with the ground/s already known was not made promptly.

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

The grounds of appeal

21.  There are three grounds of appeal of which only two relate to the judge’s refusal of leave on the merits.

22.  The first ground of appeal is that the judge erred in finding that the 2^nd respondent must have considered the applicant’s argument merely because the 2^nd respondent “had a simplified form of the argument set out in materials before her.”

23.  The second ground of appeal is that the judge erred in finding that the 2^nd respondent had validly considered the argument when no or no adequate reasons were given by the 2^nd respondent as to why the argument should be rejected and why the applicant’s case should not be referred to the Court of Appeal.

The application for an extension of time

24.  The judge handed down her decision on 26 January 2016.  The time limit to appeal against a refusal to grant leave to apply for judicial review is 14 days from when the order is made[3] and so time started to run from 26 January 2016.  However, on 2 February 2016 the Director of Legal Aid filed a Notice of Application of Legal Aid pursuant to section 15 of the Legal Aid Ordinance, Cap 91.  By so doing, the Director brought into play section 15(4) of that ordinance which creates an automatic stay and stops the appeal period from running.  By regulation 7A of the Legal Aid Regulations the period of the stay shall be 42 days.  The effect of these provisions, in conjunction with the 14 day time limit for appealing, is that the time limit for appealing was extended to, and expired on, 22 March 2016.

25.  This time limit passed with no Notice of Appeal being filed.  An attempt to file a Notice of Appeal was not made until 20 May 2016 and when this was rejected by the Registry the applicant, on 23 May 2016, filed a summons applying for an extension of time in which to appeal.

26.  The legal principles relevant to this court’s exercise of its discretion to grant the indulgence of an extension of time in which to appeal were summarised by Kwan JA in Lee Chick Choi v Best Spirits Co Ltd [4] at paragraph 19 as follows:

“ The legal principles regarding an application to extend time for an appeal are well established. In the exercise of its discretion, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted. Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success.”

27.  The first step in this process must be to identify the extent of the delay and assess the explanation advanced in respect of it.  Here the delay was almost 2 months, from 22 March 2016 to 20 May 2016.  This is a substantial period of time, especially given that the underlying litigation is a judicial review, a type of litigation which the courts have repeatedly stressed requires expedition by an applicant. We must say, it seems extraordinary that here the delay in appealing occurred in respect of an applicant who had already been found by the leave judge to have been guilty of inexcusable delay in the filing of his Form 86.

28.  What happened after the delivery of the judgment is set out in the affidavit of Mr Clement of Messrs Massie and Clement, solicitors for the applicant.  The following chronology is derived from his affidavit and the court file:

(1)	26 January 2016	Leave to apply for judicial review was refused by Barnes J at the conclusion of the inter partes hearing.
(2)	1 February 2016	The Applicant applied for legal aid.
(3)	2 February 2016	The Director of Legal Aid filed a Notice of Application for Legal Aid under section 15 of the Legal Aid Ordinance, Cap 91 confirming the above.  Section 15(4) of Cap 91 came into operation to stay the appeal period.
(4)	16 February 2016	Written reasons for the judgment of Barnes J in refusing leave to apply for judicial review were handed down.
(5)	22 March 2016	The time limit for appealing expired.
(6)	Between 16 February 2016 - 22 April 2016	The Director of Legal Aid obtained an opinion from leading counsel on the merits of an appeal.
(7)	22 April 2016	The Director of Legal Aid issued a Legal Aid Certificate to appeal the judgment of Barnes J and assigned Messrs Massie & Clement to act as solicitors for the Applicant.  This was received by Messrs Massie & Clement on 27 April 2016.[5]
(8)	10 May 2016	The Director of Legal Aid issued a Notice of Assignment of Counsel to Mr Phillip Ross.
(9)	20 May 2016	The Applicant’s solicitors’ unsuccessfully attempted to file a Notice of Appeal in these proceedings.
(10)	25 May 2016	The applicant filed a summons applying for an extension of time in which to appeal.

29.  As is readily apparent from this chronology there is no explanation for why no application for an extension of time with accompanying draft Notice of Appeal was filed immediately after 27 April 2016, especially given that Messrs Massie and Clement had been solicitors for the applicant in the judicial review, were fully conversant with the issues in the case and must have been aware that the time to appeal had expired on 22 March 2016.  In respect of the draft Notice of Appeal we note that Messrs Massie and Clement had the benefit of a leading counsel’s opinion, as a copy of it had been provided to them in the letter assigning them as solicitors for the applicant for his appeal.  Undoubtedly, this opinion would have discussed the possible grounds for an appeal.  Nor is there any explanation for why it took the Director of Legal Aid over a further two weeks to issue a Notice of Assignment of Counsel to Mr Ross for the appeal.

30.  As we have already indicated we have no hesitation in regarding the delay in these proceedings as being substantial. The period of 22 April to 20 May has to be placed in the context of the litigation being an application for judicial review which allows only a limited appeal period of 14 days, but which appeal period was significantly extended by section 15(4) of the Legal Aid Ordinance to 56 days.  On the sparse material placed before us we can detect no concern by the Director, or those he assigned to act on his behalf, at the need for expedition.  In these circumstances we find the delay to be not only substantial but also to be not wholly excusable.  That being so it is necessary for the applicant to show a real prospect of success in his grounds of appeal.

The merits of the grounds of appeal

31.  This judicial review has all the hallmarks of an attempt to challenge an administrative decision because the applicant is convinced it is wrong rather than because the applicant can point to a clear public law error in the decision making process.  Being dissatisfied with the decision the applicant has scrambled about to find a basis to challenge it. His only basis has been the use of a phrase by the 2^nd respondent which he says shows that the 2^nd respondent must have had regard to irrelevant considerations and must not have had regard to relevant ones.

32.  The phrase is a description of Mr Ross’s argument, as set out in his letter of 20 January 2014, that it was “an argument on the same ground as relied upon by the Petitioner through another route”.  This was not a phrase created by the 2^nd respondent but seems to have been first employed by the SG and then adopted and repeated by other persons involved in the processing of the applicant’s petition.

33.  Extraordinarily, none of the documents brought into being as part of this process were placed before us, although they were before the judge.  We cannot therefore place this phrase in context and have to rely on the chronology as set out in the judgment under appeal.

34.  Nevertheless, the argument of the applicant is that the use of a phrase which wrongly suggested there was no difference between what the applicant said in his petition and what Mr Ross said in his letter indicates that the 2^nd respondent made his decision under the misapprehension that the applicant was seeking to advance a related argument to that rejected by the Court of Appeal.

35.  On the materials before us, we cannot see any error by the judge in her conclusion that the use of this phrase did not mean that the 2^nd respondent made his decision under the misapprehension contended or that any such misapprehension influenced the 2^nd respondent in reaching the decision he did.

36.  The decision is made on papers presented to the 2^nd respondent.  As the judge noted Mr Ross conceded that those papers properly put the applicant’s argument.  It is hardly surprising, therefore, that the judge found there was no basis for concluding that the argument had not been properly understood by the 2^nd respondent and no basis for finding that in making his decision the 2^nd respondent had taken into account any irrelevant consideration.  We were not persuaded that the applicant had a real prospect of success in respect of this ground of appeal.

37.  The second ground of appeal attacks the judge’s conclusion that the 2^nd respondent had validly considered the argument.  This conclusion is said to be erroneous because, it is claimed, the 2^nd respondent had failed to provide adequate reasons for his decision.  However, we note that adequacy of reasons is not a separate ground for review in the Form 86 and appears to be mixed up in the ground of failing to take relevant considerations into account. 

38.  This ground of appeal is a complaint that the judge erred because the combination of the reference to “the same ground ... through another route” phrase and the sparsity of the 2^nd respondent’s reason would not allow of a conclusion that in reaching his decision the 2^nd respondent had understood the applicant’s argument.

39.  The judge’s reasoning was as follows:

(i) the issue was not whether the impugned phrase was in fact a misdescription of the applicant’s argument but whether, on the materials, it was clear that the 2^nd respondent understood the applicant’s argument;

(ii) the materials before the 2^nd respondent correctly set out the applicant’s argument;

(iii) there was no basis to find that the 2^nd respondent, after considering the materials placed before him, would not have understood the argument.

40.  We can find no fault with that reasoning.

41.  The reasons for the decision were set out in the letter of 9 February 2015.  The reasons are quoted in paragraph 8 of this judgment and they resonate with the legal test which the parties agree had to be applied by the 2^nd respondent.  That test derives from R v Secretary of State for the Home Department, ex parte Hickey & Ors (No 2) [1995] 1 WLR 734 where, in dealing with a legislative provision identical to section 83P, Simon Brown LJ said 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. ...”

42.  The 2^nd respondent applied the right test when making the decision required of him.  That test led him to conclude that, on the basis of the papers before him, there was nothing in the petition that could reasonably cause the Court of Appeal to regard the conviction as unsafe. In reaching that conclusion there was no basis for finding that he had not properly understood the argument in the petition.  We are of the view that the second ground of appeal also has no real prospect of success.

43.  We should say that we also considered the applicant’s grounds of appeal against the lower threshold of a reasonable prospect of success.  For the same reasons we are of the view that the grounds of appeal do not surmount even this lower threshold.

Conclusion

44.  For these reasons we refused the application for an extension of time in which to appeal.  We saw no reason why the applicant should not pay the respondents costs which Mr Pao assessed at $116,000. Accordingly we made an award to the respondents of costs in this amount with legal aid taxation for the applicant.