CHIANG LILY v. SECRETARY FOR JUSTICE

FAMC Nos 64 & 65 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMC No. 64 of 2009

MISCELLANEOUS PROCEEDINGS NO. 64 OF 2009 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 55 OF 2009)

Between:

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D E T E R M I N A T I O N

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Chief Justice Li:

1.  The background to this matter is fully set out in the judgment of the Court of Appeal, [2009] 6 HKC 234 and it is unnecessary to set out the details here.

2.  On 23 October 2007, the applicant was arrested by the ICAC. In January 2008, she was charged with two offences. Later, three further charges were added. All five charges relate to commercial crimes including conspiracy to defraud and offences under the Theft Ordinance and the Companies Ordinance.

3.  In February 2008, the prosecution notified the applicant that it intended to seek an order for the trial to be transferred to the District Court under section 88 of the Magistrates Ordinance (“section 88”). The applicant objected and in a letter dated 3 March 2008, made representations for her case to be tried before a judge and jury in the Court of First Instance. The Secretary for Justice replied by letter dated 20 March 2008, maintaining his decision to apply for trial in the District Court and, in May 2008, the applicant obtained leave to apply for judicial review to challenge that decision (“the firstapplication”).

4.  On 9 February 2009, Wright J dismissed the first application and on 16 March 2009, the Magistrate made an order for transfer under section 88. On 14 May 2009, the applicant sought leave to apply for judicial review of the Magistrate’s decision of 16 March 2009 (“the second application”).

5.  On the second application, the applicant contends that section 88 is unconstitutional on the ground that the power to select the venue for a criminal trial is a judicial power, but that the effect of section 88 is to confer that power exclusively on the executive.

6.  On 1 June 2009, after hearing the parties, Wright J dismissed the second application, holding that the reasonably arguable case threshold was not met. Consequently, he found it unnecessary to deal with the prosecution’s contention that the second application was an abuse of process.

7.  On 21 September 2009, the Court of Appeal dismissed the applicant’s appeals against Wright J’s decisions on both the first and second applications and, on 5 January 2010, it refused to certify various points of law. The applicant now seeks leave to appeal from the Court of Appeal’s decision.

8.  In the first application, the argument before Wright J focused on whether the reasons given by the prosecution in its letter dated 20 March 2008 for maintaining its decision to apply for transfer to the District Court were adequate. The Court of Appeal agreed with Wright J that the reasons given were adequate. Before it, the argument centred on whether the prosecution’s decision was irrational.

9.  As is rightly accepted by the applicant, it is clear that there is no right to trial by jury in Hong Kong. Although the applicant’s strong preference is for a jury trial, she has not suggested that she cannot have a fair trial in the District Court before a judge sitting alone. Indeed, such a suggestion cannot be responsibly made by any person facing trial in the District Court. There are plainly no grounds for holding the Secretary for Justice’s decision to seek trial in that court to be irrational. In the circumstances, the Court of Appeal was plainly right to dismiss her appeal regarding the first application, and there are no reasonable grounds for the grant of leave to appeal from such dismissal.

10.  As to the second application, the Court of Appeal held that it was clearly an abuse of the process since it considered that any challenge to the constitutionality of section 88 could and should have been made in the first application. It therefore did not proceed to deal with the merits of the section 88 argument.

11.  There can be no doubt that the question of constitutionality could have been raised in the first judicial review application. It is also clear that, as the Court of Appeal pointed out, it should have been raised to avoid highly undesirable delays and disruption to the pending criminal proceedings.

12.  The central argument upon which leave to appeal against the Court of Appeal’s conclusion of abuse is sought involves the contention that the applicant should not be shut out from arguing a point of which she was herself previously unaware and which her then legal advisers either did not know about or did not consider to be viable, given that her present legal advisers now take a different view and consider it a worthwhile line to pursue. As was put by Mr Johnny Mok SC, who has said all that could be said on behalf of the applicant:

“If (the original legal advisers) failed to appreciate a difficult or novel line of argument or that such argument is viable, the consequence of that failure should not be visited upon their lay client ...”

13.  We do not accept that argument. The fact that a second or subsequent set of lawyers thinks of a new point which the earlier advisers did not consider or might have thought was unmeritorious cannot be a basis for effectively re-opening a matter where arguments then considered proper had been deployed and duly considered. If that were the applicable standard, there would never be finality in any court proceedings. As the Court stated in Chong Ching Yuen v HKSAR (2004) 7 HKCFAR 126, a person is generally bound by the way a matter is conducted by his or her counsel. The exception is where the person in question can show that he or she was deprived of a fair trial because of the “flagrant incompetence” of counsel.

14.  In considering whether there has been an abuse of process, all the relevant circumstances have to be considered. But on a leave application like the present, the applicant must show that it is at least reasonably arguable that a charge of flagrant incompetence can properly be made against the earlier advisers. No such allegation is or could possibly be made in the present case. A difference of view taken by counsel now instructed – on a point described as “novel” or “difficult” – falls far short of the applicable standard.

15.  While the Court of Appeal declined to deal with the merits, it is in our view clear that the contention that section 88 is unconstitutional because it allocates a judicial function to the Secretary for Justice is not reasonably arguable. Choice of the venue for a prosecution is clearly a matter covered by Article 63 of the Basic Law which gives control of prosecutions to the Secretary for Justice without any external interference. Wright J’s conclusion was plainly correct.

16.  This becomes obvious once one considers the context and basis of any decision regarding venue. As to context, if selection of venue were a judicial function, the magistrate would have to hear submissions and take evidence bearing on that choice, looking in some detail at the alleged offence and the circumstances of the accused, turning the mere decision as to venue into a mini-trial. That cannot be the proper function of the magistrate.

17.  Moreover, the basis of making the selection shows that the function is not judicial. In the Statement of Prosecution Policy and Practice (2009), guidance as to choice of venue is given as follows:

“In the selection of venue, the sentence which is likely to be imposed upon an accused after trial is an important factor for the prosecutor to examine.  The prosecutor will also wish to consider the general circumstances of the case, the gravity of what is alleged, the antecedents of the accused and any aggravating factors.” (para 14.1)

18.  These are plainly matters that may properly guide the prosecutor but which it would be highly undesirable for a magistrate to explore before the trial. It would obviously be most inappropriate for there to be a debate as to likely sentence or antecedents or aggravating factors before the magistrate regarding a person fully entitled to the presumption of innocence. The present system avoids this by properly treating the question of venue as a prosecutorial choice with the transfer following on a mandatory basis.

19.  We therefore consider both the complaint against the abuse of process conclusion and the arguments on the merits of the application to be without substance. Accordingly, the applications to certify various points of law and for leave are dismissed with costs.