THE SECRETARY FOR JUSTICE v. LAW KWOK KUEN SIDNEY

Headnote

[(1) Where there has been an order for separate trials of various defendants, and the defendants in the first trial were acquitted, it is not open to a defendant in the second trial to seek a stay of his trial on the ground that had he been tried in the first trial he was likely to have been acquitted.

(2) The proper respondent to an application for judicial review, when the court's supervisory jurisdiction over criminal proceedings in an inferior court is invoked, is the other party to the proceedings in the inferior court, and not the inferior court itself.]

1997 A. L. No. 52

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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INTRODUCTION

1. Four Defendants were charged with an offence of conspiracy to defraud. When they appeared at Eastern Magistracy, they pleaded not guilty. A few days before the trial was due to begin, counsel for the 2nd Defendant ("D2") applied for the case to be adjourned. D2 had had an accident and was in hospital. The application was opposed by counsel for the other three Defendants.

2. The magistrate suggested the possibility of D2 being tried separately from the other Defendants. The prosecution opposed that suggestion on a number of grounds. First, the charge was one of conspiracy, and it was desirable for all the alleged conspirators to be tried together. Secondly, if D2's case was heard separately from that of the other Defendants, with the result that there would have to be two trials, the prosecution's witnesses would have to give evidence twice, the court's time would be wasted, and the possibility of inconsistent verdicts might arise. In the event, the magistrate decided to grant D2's application for an adjournment, but he thought that the interests of justice required the trial of the other Defendants to proceed as scheduled. He therefore ordered D2 to be tried separately from the others.

3. The trial of the other Defendants started as scheduled. At the end of the prosecution's case, the magistrate ruled that the Defendants had a case to answer. However, at the end of the Defendants' case, and after hearing submissions, the magistrate acquitted the Defendants.

4. In due course, the case of D2 was listed for trial. At the outset of the hearing, his counsel applied for a stay of the proceedings. The ground was that had he been tried at the previous trial with the other Defendants, it was very likely that he would have been acquitted. No fresh evidence had come to light since the trial. Accordingly, it would be oppressive for D2's trial to take place, because the issues in his case had been tried and tested in the previous trial. The magistrate gave his ruling on the following day. He ruled that it would be "unfair and oppressive" for D2's trial to continue, and he ordered the proceedings to be permanently stayed. The prosecution now applies for judicial review of that decision.

THE MAGISTRATE'S REASONS

5. When announcing his ruling, the magistrate said:

"What [D2] is saying, in effect, is that he's been deprived of an opportunity to be acquitted because of the nature of the orders made during the course of the case and, as a consequence, it would be unfair on him for the case to continue and that a trial, under these circumstances, would be oppressive... Essentially, the evidence against [D2] would be the same as has been heard by another court and determined elsewhere. If [D2] had been present during that trial, there is every possibility he would have been acquitted."

It is important to note what the magistrate did not say. He was not saying that the acquittal of the other Defendants meant that D2 was likely to be acquitted at his subsequent trial. If the magistrate had been saying that, his approach would have been flawed, because it is well-settled that the court has no power to stay a criminal trial simply because the court thinks that a conviction is unlikely: see D. P. P. v. Humphreys [1977] A.C. 1 at p.53B-E (per Lord Edmund-Davies). What the magistrate was saying was that if D2 had been tried along with the other Defendants, he would very likely have been acquitted. The magistrate regarded his continued prosecution in those circumstances to be unfair and oppressive because D2 had been deprived of the opportunity of being acquitted.

THE ASSUMPTIONS MADE BY THE MAGISTRATE

6. This argument proceeds on a number of factual assumptions. First, it assumes that the evidence against D2 was no stronger than the evidence against the other Defendants. Secondly, the opportunity of being acquitted which D2 claims to have been deprived of arose because of the order that he be tried separately from the other Defendants. Accordingly, D2's argument proceeds on the assumption that he had done nothing to contribute to the order for separate trials being made.

7. As for the first of those assumptions, the magistrate thought that the evidence which it was proposed to call against D2 was essentially the same as the evidence which had been called against the other Defendants at their trial. That is what the magistrate said in his ruling. However, as I understand the prosecution's argument to the magistrate, it was common ground that the evidence which it was proposed to call against D2 was, broadly speaking, the same as the evidence which had been called against the other Defendants at their trial. The crucial difference was that the evidence was stronger against D2. It therefore did not follow that the acquittal of the other Defendants meant that D2 would have been acquitted as well had he been tried with them. He had no more been denied the opportunity of being acquitted than anyone in respect of whom a separate trial had been ordered.

8. Unfortunately, I cannot decide whose view of the evidence is correct. Unlike the magistrate, I have not been supplied with transcripts of the trial of the other Defendants and the bundle containing the statements of the witnesses who the prosecution proposed calling at the trial against D2. They were not exhibited to the one affirmation which has been filed. That affirmation has been made by a senior investigator of the I.C.A.C. (who I assume was the officer in charge of the case, although he does not actually say so). My understanding of what the prosecution was submitting to the magistrate is not based on the documents themselves, but on a summary of them contained in para. 24 of the affirmation.

9. As for the second of the assumptions, it may have been that, to reinforce his application for an adjournment, D2's counsel made it clear that D2 would not object to an order for separate trials. If D2's counsel had done that, the complaint that that order had deprived him of the opportunity of being acquitted would have a very hollow ring to it. I do not know what, if anything, the magistrate was told on the topic. However, I do know what the magistrate would have been told if his attention had been alerted to the topic, because it is common ground that D2's counsel did not support the proposal for separate trials. He wanted the trial of all four Defendants to be adjourned.

THE CORRECTNESS OF THE MAGISTRATE'S APPROACH

10. However, in the final analysis, I do not think that the outcome of this application turns on the correctness of the assumptions on which the magistrate's ruling proceeded. If it depended on whether the evidence against D2 was stronger than the evidence against the other Defendants, then the court would be called upon to determine whether D2 would have been likely to be acquitted if he had been tried with the other Defendants. It is true that that is a different question from the one which cannot be determined on an application for the stay of a criminal trial - namely, whether D2 is likely now to be acquitted. But the rationale for that rule - that the court should not before a trial second-guess what the eventual outcome of the trial is likely to be - applies equally to the question whether D2 would have been likely to be acquitted if he had been tried with the other Defendants. It would be wrong for the court to speculate what the outcome of that trial for D2 would have been. It follows that it was not permissible for the magistrate to investigate whether D2 would have been likely to be acquitted if he had been tried with the other Defendants. In those circumstances, it could not be said that D2 had been deprived of the opportunity of being acquitted, because the possibility of him being convicted could not be excluded without an examination of the evidence (which was not permissible).

11. Mr. Joseph Vaughan for D2 contends that if the evidence against D2 had not been stronger than the evidence against the other three Defendants, any subsequent conviction of D2 would have been inconsistent with the acquittal of the other three Defendants. For that reason, therefore, it was open, he contends, to the magistrate to embark on the investigation which he did, and if that investigation justified it, to conclude that a stay of the proceedings was appropriate. I disagree.

"Where the verdicts alleged to be inconsistent are verdicts returned by different juries in respect of different defendants, the onus cast upon an appellant will be an almost impossible one to discharge: inevitably, there will be a difference in the evidence, however similar the case may be against two persons jointly charged with an offence but separately tried": Archbold, "Criminal Pleading, Evidence and Practice," 1997, para. 7-72.

As Eveleigh J. (as he then was) said in R. v. Andrews Weatherfoil Ltd. (1972) 56 Cr. App. R. 31 at p.40:

"That the result produced by such inconsistency is 'unsatisfactory' cannot be disputed, but it is the unsatisfactory character of the Guilty verdict [which has to be addressed] rather than an unsatisfactory result of the two trials as a whole."

CONCLUSION

12. For these reasons, the grounds advanced for a stay of the trial could not in law have justified a stay. Accordingly, I make an order of certiorari quashing the ruling of the magistrate that the proceedings against D2 be permanently stayed. I also make an order of mandamus directing the magistrate to refuse the application for a stay.

THE PROPER RESPONDENT

13. Finally, I wish to add a few words about who should have been named as the respondent to these proceedings. The heading of the Notice of Application for leave to apply for judicial review did not identify who the respondent was, nor did the Originating Notice of Motion. They simply named the Applicant. That is unsatisfactory. Every application for judicial review has a respondent, and the respondent should be named in the heading of any document filed in court relating to the application.

14. But who should be named as the proper respondent in a case in which the court's supervisory jurisdiction over criminal proceedings in an inferior court is being invoked? In the days when applications for one of the prerogative writs were made in the name of the Crown, the proper respondent would have been the inferior court whose decision was being reviewed. However, a change of practice was effected by the Practice Direction issued on the establishment of the Administrative Law List. Para. 2.2 of the Practice Direction reads:

"It will no longer be necessary or appropriate for applications for judicial review, in which one of the prerogative orders is sought, to be entitled as follows:

The Queen
and
[The Respondent]	Respondent
ex parte [The Applicant]	Applicant"

Accordingly, it is no longer necessary for the inferior court to be named as the respondent. The question now is whether it is more appropriate for the inferior court to be named as the respondent, as opposed to the other party of the proceedings: the prosecution (i.e. the Secretary for Justice) if the application is being brought by the defendant, or the defendant if the application is being brought by the prosecution.

15. The answer is that it is more appropriate for the party to the proceedings to be named as the respondent, not the inferior court . The circumstances in which the inferior court is required to be served with the proceedings are extremely limited, as are the circumstances in which the judge or magistrate in the inferior court may make representations on the hearing of the application for judicial review: see Nattrass v. The Attorney-General [1996] 1 HKC 488. Moreover, if the inferior court, rather than the party to the proceedings, is named as the respondent, there is a strong possibility that service of the High Court proceedings on the party to the proceedings in the inferior court will be overlooked. Accordingly, when this judgment is transcribed, the name of D2 will appear as the Respondent in the heading.