HKSAR v. NG PAK MIN

HCAL 70/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO.70 OF 1999

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J U D G M E N T

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1. This is an application for leave to apply for judicial review. The applicant is a defendant in criminal proceedings before a magistrate. There was an application to the magistrate to stay the proceedings and the magistrate refused to do so. The applicant seeks an order of prohibition to prevent the magistrate from determining the information laid against the applicant, as well as an order of certiorari to bring up and quash the refusal to stay. Then there is an application for a stay of the magistrates proceedings pending determination of the substantive application for judicial review.

2. I declined to give leave on the papers and so the matter comes before me today for oral presentation. Given the application for interim stay of the magistrates proceedings, I asked that the respondent should be notified and to attend today's hearing.

3. The applicant faces prosecution for the following offence :

Ng Pak Min, on or about 6th March 1997, in Hong Kong, without lawful authority or reasonable excuse, offered an advantage, namely a fee, commission or reward in the sum of $700,000 Hong Kong currency through Chan Kai Yan to an agent, namely Hu Cheng, a Director and Deputy General Manager of Maxbusy Finance Company Limited (referred to hereafter as "Maxbusy"), as an inducement to or reward for or otherwise on account of the said Hu Cheng's doing or having done an act in relation to his principal's affairs or business, namely approving a loan of $23 million Hong Kong currency from Maxbusy to the said Ng Pak Min (contrary to section 9(2)(a) of the Prevention of Bribery Ordinance, Cap.201).

4. The summary of facts which has been served on the applicant, running to almost two pages, alleges that the applicant was seeking finance to re-mortgage eight properties, and that a Mr Chan told him that a certain company was willing to provide the facilities, but that it would be necessary to pay the Deputy General Manager of that company a bribe of 3% of the required loan and that the applicant agreed to do so. Indeed, according to the summary, he went further than that and actually paid the sum to a nominated company and the loan was granted. The applicant subsequently made a complaint to the Independent Commission Against Corruption ("ICAC") suggesting that he had been deceived into making the offer. But his own complaint revealed the very offence with which he was then charged. That admission by him is evidence which the prosecution intend to use in the trial. Those are the allegations, and although stated broadly by me, the particulars which have been provided are considerably more detailed than that.

5. The charge as presently framed is not the first version of the charge laid against the applicant. He was first charged with agreeing to offer an advantage to an agent, Mr Hu (the Deputy General Manager to whom I have referred), as an inducement or reward for approving the loan. Then those acting for the applicant suggested in correspondence that the proceedings were an abuse because there were some civil proceedings in train, and at the same time asked for the identity of the person with whom the agreement was allegedly made. Then the charge was amended, alleging not an "agreement to offer" but an "agreement to give". The defence asked for the identity of the person with whom the agreement was made and there was in due course a reply saying that the applicant agreed to give an advantage to Mr Hu pursuant to dealings with Mr Chan. The defence wanted the prosecution to say that it was with Mr Chan that the agreement was made, because they take the view that in the light of the decision of Hopper J in R. v. Wong Seck Hung and Another, MA1133 of 1988 that if a person agrees with a suggestion made by someone other than the agent himself, then no offence of offering an advantage within the meaning of the Prevention of Bribery Ordinance can be committed.

6. The defence then made application to the magistrate's court for the provision of particulars about the identity of the person with whom the applicant was agreeing. That was followed by the new charge, or the freshly framed charge, which the applicant now faces. The defence also complained that the prosecution did not intend to call the man Chan. I think they said that that too was an abuse.

7. On 19th April this year, an application was made to the magistrate for a stay of the prosecution. I think it best to set out the grounds of that application as they have been summarised in the application for leave :

"(1) By reason of the Prosecution refusing to elect by way of the provision of particulars to the charge against the Applicant one or more of the various meaning(s) of 'offer' in s2(2)(a) of POBO, the Defendant has been deprived of the right to a fair trial, by reason whereof the magistrate should, as a matter of discretion under common law and article 10 of the Bills of Rights Ordinance, stay the proceedings; and

(2) By reason of the manner in which the prosecution had been conducted, more particularly having regard the choice to apply to re-amend as aforesaid in terms to avoid the binding decision of Wong Seck-hung and the refusal to elect one or more meanings of 'offer' in s2(2)(a) of POBO, the Prosecution had abused the court's process in a manner condemned by the House of Lords in R v Horseferry Rd. CT., ex p.Bennett [1994] 1AC 42 as degrading the court's criminal process."

8. The application for leave to apply for judicial review tells me that the defence asked for the charge to be dismissed as the new charge disclosed, it was said, no offence for, so goes the argument, there is no offence of offering an advantage through the vehicle of a third party. Then there was an application to the prosecution through the magistrate for particulars of the word "offer", it being said that without such particulars the defence would be prejudiced and embarrassed. It was, so the argument went, without such particulars, impossible to defend. The magistrate asked the prosecution whether the brief facts or summary of facts constituted their opening, and the prosecution said that it did. The magistrate said that the meaning of "offer" as advanced by the prosecution was clear enough from those particulars.

9. Mr Wong, on behalf of the applicant, in his concise and able submission today, insists nonetheless that there are insufficient particulars and that the transaction upon which the prosecution relied has not been identified with precision. Moreover, the prosecution deliberately changed the charge to avoid the consequences, so it is put, of the decision in Wong Seck Hung. All these constitute an abuse of the process and this court should now intervene, says Mr Wong.

10. Since I have decided to reject the application for leave so that the matter will be going before the magistrate for trial, the less I say about the application and its merits the better.

11. Judicial review is supposed to be an avenue of last resort, and it will only be in the most exceptional circumstances that a court would stop criminal proceedings in limine. The test for an application for leave to apply for judicial review is whether the material before me discloses what might on further consideration turn out to be an arguable case.

12. All the matters which are placed before me for consideration are matters which it is within the competence of the magistrate to decide, and there is no warrant in coming to this court on judicial review. It seems to me to matter not one jot for my purposes what Wong Seck Hung decides. The charge as now framed either discloses on its face an offence or it does not. The evidence as it emerges will either prove a case or it will not. These are matters fully within the competence of the magistrate to decide, and if on either point the magistrate decides the issue against the applicant and the applicant is so advised, he can appeal in the normal way.

13. As for the suggestion that the applicant has not sufficient particulars of the offence, the magistrate has taken the view that he has ample particulars, and I, for my part, fail to see what further particulars he could have. The case against him seems to me to be clearly and fully stated. I do not think that the failure to specify which variation of the term "offer" is intended makes any difference in this case. The charge is "offering" and if any one of the forms of "offer" is proved, the offence is committed. The particulars provided by the prosecution through the summary of facts, which they say is their case, makes the form which the offer took perfectly clear.

14. In so far as it is suggested that the magistrates courts are not the appropriate forum to deal with abuse where the abuse is said to constitute an unfairness in continuing proceedings, even assuming (without for a moment deciding) that to be the case, I see no basis whatsoever for a successful application in this court on the ground of abuse.

15. What is more, I also note that all relevant papers have been served on the applicant, including witness statements, the applicant's own statements, as well as unused material.

16. In short, there is in my judgment no prospect whatsoever of this application succeeding, and I accordingly refuse leave.

[Submission on costs]

17. Mr Lee, on behalf of the putative respondent asks for the respondent's costs of this application, an application for costs which is opposed by Mr Wong, he pointing out that the respondent appears at the court's invitation. That is true. Nonetheless, that invitation was inevitable given the application for an interim order that the magistrates proceedings be stayed. It follows in the circumstances that it was inevitable that the respondent would have to appear at least to that extent. I have jurisdiction to make an award of costs. As I say the application for leave appears to me to be devoid of merit, and in the circumstances I shall order that the respondent's costs of this particular application be paid by the applicant, to be taxed if not agreed.