CHIK WEN FEI AND ANOTHER v. SECRETARY FOR JUSTICE

CACV 141/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 2008

(ON APPEAL FROM HCAL No. 20 OF 2008)

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REASONS   FOR   JUDGMENT

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Hon. Lam J (giving the judgment of the court):

1.  The Applicants are defendants in District Court Criminal Case No.781 of 2006.  They unsuccessfully applied for stay of the criminal proceedings before the District Judge.  After that, they applied to the Court of First Instance for leave to apply for judicial review in respect of the decision of the District Judge.  On 14 March 2008, Reyes J refused to grant leave.

2.  The Applicants appealed to this court against the decision of Reyes J.  After hearing submissions from Mr Wong SC, we dismissed the appeal.  We now give our reasons for our decision.

3.  What the Applicants seek by way of judicial review is to ask the High Court to exercise its supervisory jurisdiction in respect of criminal proceedings in inferior courts.  Whilst there is no doubt that such jurisdiction exists and the High Court should interfere when it is appropriate to do so, it is well settled that this is a jurisdiction that should only be evoked in the most exceptional circumstances.

4.  The underlying reasons for this proposition are as follows,

(a)     Collateral challenges to criminal proceedings in progress are, for obvious reasons, in general not conducive to the fair and proper administration of justice.  It is important that the integrity of a criminal trial must not be compromised by unnecessary interlocutory applications to the High Court for judicial review;

(b)    Judicial review is a discretionary remedy and in the present context must be regarded as a remedy of last resort.  Thus if a challenge can be canvassed by way of appeal, that should prima facie provide an effective redress.  In such case, appeal should be the proper avenue to embark and the High Court will be slow to grant leave for application for judicial review.

(c)     Collateral proceedings by way of judicial review, including the availability of appeal against decisions in such proceedings, will take time to be finally determined.  Misuse of the proceedings can often result in undesirable delay of the criminal trial and there are cases where a defendant may be tempted to pursue such applications for collateral or forensic motives (though we are not saying that the Applicants are pursuing the present application for improper motive).  Thus, unwarranted applications for judicial review derailing a criminal trial could be regarded as abuse of process.     

5.  In Yeung Chun Pong v Secretary for Justice [2008] 3 HKLRD 1, another division of this court examined these principles and we see no need to repeat what had been admirably set out in the judgment of Stock JA.

6.  Mr Wong did not dispute that the Applicants have to show exceptional circumstances.  Counsel submitted that exceptional circumstances are present because,

(a)     The application in the present case is based on undisputed facts;

(b)    The challenge is based on want of jurisdiction on the part of the District Court to deal with the case because the charges had never been properly transferred to the District Court;

(c)     There has not been any decided case on some of the points raised by the Applicants: whether ‘summary proceedings’ may be used when it was never the intention to proceed summarily with indictable offences; whether ‘summonses’ may be consolidated into charges; whether a court may entertain proceedings without a case number; whether a court may grant bail on cases with different case numbers; whether the court had the duty to ensure the case to have a proper case number. 

7.  We agree with Reyes J that these matters, whether taken individually or collectively, do not make out a case of exceptional circumstances justifying intervention of criminal proceedings in the District Court by way of judicial review.  With respect to counsel, we do not think the Applicants come anywhere close to demonstrating any grounds that warrant this court’s interference with the exercise of the discretion by Reyes J (see Hong Kong Civil Procedure 2008, Para.59/1/49). 

8.  Further, even if we were to consider the matter afresh (which should NOT be the approach of an appellate court in dealing with an appeal against the exercise of discretion by a first instance judge), we would have come to the same conclusion as the learned judge.

9.  The fundamental proposition of the Applicants rests upon the submission that the charges against them had not been properly presented to the magistrate before the case was transferred.  From the records, it can be seen that the charges were read and throughout the proceedings before the magistrate, all the parties involved were aware that they were dealing with the charges instead of summary proceedings under the summonses.

10.  Confusion only arises in terms of the case numbers.  Because the prosecution did not enter nolle prosequi in respect of the summonses, the case was listed under the case numbers for the summonses instead of a new case number for the charges in the magistracy.  But it was not a confusion that had occasioned any prejudice to the Applicants.  They were represented by counsel and the charges (as opposed to the summonses) were read to them.  No plea was taken in the magistracy and the case was transferred to the District Court on the basis of the charges.  The two magistrates hearing the matter, the prosecution and counsel for the Applicants plainly proceeded on the basis that as from the time the charges were presented to the court the matter was not dealt with by way of summary proceedings.

11.  Counsel for the Applicants did not object to the transfer of the proceedings to the District Court.  If the Applicants or their counsel thought they were still being dealt with summarily under the summonses instead of the charges, we fail to see why the point was not taken when the prosecution applied for the transfer of the case.

12.  Further, notwithstanding that the substance of the Applicants’ challenge is against the order transferring the case to the District court, there was no application for judicial review in respect of such order.  The order for transfer was made on 31 August 2006.  If the Applicants’ contention on exceptional circumstances has any merit, they could and should have applied for judicial review in respect of the order for transfer instead of leaving the point for submission in an application for stay before the District Judge.

13.  There is no explanation why the Applicants did not challenge the order of transfer within the usual three months time limit under Order 53 Rule 4.  Instead, they were content to leave the matter to be dealt with in the context of the stay application before the District Judge.

14.  Had the point been taken when the case was before the magistrates, we see no reason why the confusion in terms of the case number cannot be remedied before the transfer.  As it was held in AG v Paterson-Todd [1985] 1 HKC 416, a magistrate can transfer a case to the District Court even though the prosecution has not formally entered nolli prosequi regarding the summary proceedings. 

15.  The failure on the part of the Applicants to take the point in a timely manner has to be considered together with the disruption and delay that could be caused to the criminal proceedings if leave to judicial review is granted now.  By reason of such failure, the prosecution was deprived of an opportunity to take timely remedial action regarding the alleged defects in the transfer procedures.

16.  The Applicants have chosen to litigate this point in the context of the criminal trial in the District Court.  Given the powerful policy reason for limiting judicial review on decisions in criminal proceedings in progress, we are of the view that the Applicants have to be content with their remedies by way of criminal appeal if necessary.

17.  Moreover, Reyes J also agreed with the District Judge that the intended challenge to the jurisdiction of the District Court has no merit.  Whilst we are content to rest our decision on the ground that the Applicants failed to show exceptional circumstances and leave should be refused as a matter of discretion, we can also say that we are not impressed by Mr Wong’s submissions based on the confusion in the case numbers.  In substance, the case proceeded before the magistrates was the case in respect of the charges and bail was granted in respect of those charges.  The confusion in terms of the listing of the case and the account office in dealing with bail cannot affect the true nature of the proceedings before the magistrates.  Once the point about the case number has gone, there is not much left in the challenge to jurisdiction advanced on behalf of the Applicants.

18.  Mr Wong indicated that he had instructions to apply for leave to appeal against our decision to the Court of Final Appeal.  Understandably, he has yet to make the application pending our reasons for our decision.  However, he might like to reconsider the intended application in the light of the decision of the Appeal Committee of the Court of Final Appeal in HLF v MTC [2004] 3 HKLRD 241.