TUNG CHI HUNG v. HIS HONOUR JUDGE LUGAR MAWSON AND ANOTHER

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO. 622 OF 1992

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J U D G M E N T

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1. The applicant is seeking a Prohibition Order and various Declarations against the respondents. The relief sought is

"1. Prohibition, directed to His Honour Judge Lugar-Mawson, or any District Judge, to prohibit the hearing of District Court Case 857/91, in respect of the Applicant.

2. A Declaration that the Applicant has established the special plea of autrefois acquit and is entitled to be acquitted and discharged in District Court Case 857/91, or a Declaration that the prosecution of the Applicant in District Court Case 857/91 is a violation of Article 11(6) Bill of Rights.

3. A Declaration that the continued trial of the Applicant in District Court Case 857/91 amounts to an abuse of process and that such trial should be stayed.

4. A Declaration that the institution of proceedings by the Attorney General in case SK 7650/91 against the Applicant, and the transfer of that case to the District Court as District Case 857/91 is an abuse of process.

5. A Declaration, that if it is ruled that Case SK 6303/89,. against the Applicant, has never been finally adjudicated or finally disposed of according to law, that :-

(a) in the circumstances it would be an abuse of process for the Attorney General to continue with Case 6303/89; and

(b) in the circumstances it is an abuse of process for the Attorney General to have instituted or to continue with case SK 7650/91 and

(c) in the circumstances it is an abuse of process for the Attorney General to have instituted or to continue with District Court Case 857/91.

6. Interim relief, by way of a stay, pursuant to 053 r3(10)(a) and 053 r3 (10)(b) Rules of the Supreme Court, staying the trial of the Applicant in District Court Case 857/91 pending the final determination of this application, or until further Order of this Honourable Court.

7. Costs."

and the grounds upon which is based are:-

"1. There is an error of law on the face of the record, as the determination of K J Townsley Esq, Permanent Magistrate in SK 6303/89 on 4 August 1989, that the charge is dismissed, upon the Crown offering no evidence against the Applicant, amounts to a lawful acquittal. See: Metropolitan Police Commissioner v Meller [1963] Crim LR 856. The District Judge's decision that the charge was "withdrawn" is erroneous in point of law and is irreconcilable with the admitted evidence. The charge was not "withdrawn". See: Attorney General v Wong Kwai-lok [1984] HKLR 364. Alternatively, if the Magistrate did not finally adjudicate and dispose of Case SK 6303/89, according to law, in respect of the Applicant, it is or would be an abuse of process, in the circumstances for/a) the Attorney General to continue with SK 6303/89/b) the Attorney General to have instituted Case SK 7650/91/c) the Attorney General to have transferred Case SK 7650/91 to the District Court/d) the Attorney General to have instituted or to continue to prosecute the Applicant in District Court Case 857/91.

2. There is a further error of law on the face of the record, as neither S.19 Magistrates Ordinance, Cap 227 nor any other law impose a mandatory requirement that the Applicant must have pleaded "Not Guilty" before an unequivocal decision by the Crown to offer no evidence against the Applicant (with a resulting acquittal) is effective.

3. Altenatively in all the circumstances (including the hearing before K J Townsley Esq and the Applicant's re-arrest and release on police bail from February 1990 until August 1991) the decision not to stay the trial was

(a) Wednesbury unreasonable

(b) vitiated by the District Judge's failure to take into account sufficiently or at all relevant considerations - namely the Applicant's reasonable belief that he had been earlier acquitted by K J Townsley Esq or the fact that the case was now almost 2 and 1/2 years old, because of the actions of the Attorney General.

(c) vitiated by the fact that the District Judge appears to have principally (if not exclusively) concentrated on the issue of delay, without considering the repeated extensions of Police bail and the culpability of the Police, and without considering the irrecoverable legal costs of the Applicant. Delay, ran from the original arrest, not the rearrest as the Judge appears to have determined.

(d) an error of law. If it is ruled that Case SK 6303/89 was never lawfully concluded then that Case is still extant in South Kowloon Magistrate's Court. In those circumstances, it was an abuse of process to reinstitute proceedings by Case 7650/91 when Case SK 6303/89 still existed and the transfer of Case 7650/91 to the District Court was an abuse of process. The District Judge in rejecting the special plea of autrefois acquit never took into account, (as he wrongly found the proceedings had been "withdrawn"), that his jurisdiction in the District Court was itself the result of an abuse of process, inadvertent or otherwise, the required that all proceedings in all cases against the Applicant be stayed.

4. The District Judge erred in law in impugning the final determination of another Court viz. K J Townsley Esq. The District Judge was not entitled to review or effectively hear an appeal from the decision of K J Townsley Esq. The Crown was estopped (res judicata) from denying the validity of the earlier decision.

5. The delay, in all the circumstances, is such as to be a violation of Article 11(2)(c) Bill of Rights.

6. The Attorney General (by the Police) manipulated or misused the Court process by their actions before K J Townsley Esq. and their subsequent conduct in Case SK 7650/91 and District Court Case 857/91.

7. The District Judge failed to take into account that prejudice to a Defendant can be inferred, or is to presumed."

2. The decision complained of is the 1st respondent's decision to refuse a stay of proceedings before him.

3. Put very shortly, the applicant was jointly charged with another defendant with obtaining property by deception. After various appearances at South Kowloon Magistracy, he appeared again on the 4th August 1989 when the Crown informed the learned Magistrate that they had received legal advice and did not wish to offer any evidence against the applicant. It is common ground that no plea was taken and according to the court records the charge was dismissed and both defendants were discharged.

4. On the 16th February 1990, the applicant was re-arrested for the offence which is the subject of the proceedings which were before the 1st respondent. He was granted bail. On the 22nd August 1991, the applicant was charged with the offence and on the 4th September 1991, the case was transferred to the District Court.

5. It is common ground that the facts giving rise to the subsequent proceedings were for all practical purposes the same as those which supported the original charge.

6. The applicant made a submission relating to autrefois acquittal and the 1st respondent made his ruling which is part of the subject matter of this judicial review.

7. Mr. McCoy who was representing the applicant very properly, in my view, conceded before me that he could not maintain any submission that there had been a trial and that his client could argue an autrofois acquittal. This was on the basis of the clear authority of Williams v. Director of Public Prosecutions [1991] 3 All ER 651.

8. However, Mr. McCoy submitted that as the original charge against the applicant had not been withdrawn or dismissed according to the law, it was still extant. In this connection, he relied upon the authority of the Metropolitan Police Commissioner v. Meller (1963] CLR 856. He went on to argue that the present proceedings constituted an abuse of process and there were a multiplicity of proceedings relating to the same subject matter.

9. Perhaps more importantly, Mr. McCoy submitted that the delay which had occurred since the inception of the original charge was such as to constitute a clear infringement of Articles 5(c) and 11(2) of the Bill of Rights.

10. The first question I have to consider, before going into the merits of this submission is the appropriateness of the present judicial review.

11. Miss Hartstein for the 2nd respondent argued that the High Court has no jurisdiction to order a Writ of Prohibition to a District Judge. She referred me to sections 21I and 21K of the Supreme Court Ordinance, Cap. 4. These sections are as follows:

"21I Orders of mandamus, prohibition and certiorari

(1) The High court shall have jurisdiction to make orders of mandamus, prohibition and certiorari in those classes of cases in which it had power to do so immediately before the commencement of the Supreme Court (Amendment) Ordinance 1987 (52 of 1987).

(2) Every such order shall be final, subject to any right of appeal therefrom.

(3) The power of the High Court under any enactment to require justices of the peace, magistrates or a judge or officer of a District Court to do any act relating to the duties of their respective offices, or to require a magistrate to state a case for the opinion of the High Court, in any case where the High Court formerly had by virtue of any enactment jurisdiction to make a rule absolute, or an order, for any of those purposes, shall be exercisable by order of mandamus.

(4) In any enactment -

(a) references to a writ of mandamus, of prohibition or of certiorari shall be read as references to the corresponding order; and

(b) references to the issue or award of any such writ shall be read as references to the making of the corresponding order.

21K. Application for judicial review

(1) An application to the High Court for one or more of the following forms of relief -

(a) an order of mandamus, prohibition or certiorari;

(b) an injunction under section 21J restraining a person not entitled to do so from acting in an office to which that section applies,

shall be made in accordance with rules of court by a procedure to be known as an application for judicial review.

(2) An application for a declaration or an injunction (not being an injection mentioned in subsection (1) may be made in accordance with rules of court by way of an application for judicial review, and on such an application the High Court may grant the declaration or injunction claimed if it considers that, having regard to -

(a) the nature of the matters in respect of which relief may be granted by orders of mandamus, prohibition or certiorari;

(b) the nature of the persons and bodies against whom relief may be granted by such orders; and

(c) all the circumstances of the case,

it would be just and convenient for the declaration to be made or the injunction to be granted, as the case may be.

(3) No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates.

(4) On an application for judicial review the High Court may award damages to the applicant if -

(a) he has joined with his application a claim for damages arising from any matter to which the application relates; and

(b) the court is satisfied that, if the claim had been made in an action begun by the applicant at the time of making his application, he would have been awarded damages.

(5) If, on an application for judicial review seeking an order of certiorari, the High Court quashes the decision to which the application relates, the High Court may remit the matter to the court, tribunal or authority concerned, with a direction to reconsider it and reach a decision in accordance with the findings of the High Court.

(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant -

(a) leave for the making of the application; or

(b) any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

(7) Subsection (6) is without prejudice to any enactment or rule of court which has the effect of limiting the time within which an application for judicial review may be made."

12. The Court of Appeal considered a similar problem in George Tan v. His Honour Judge Cameron & Attorney General, unreported being CA No. 81 of 1991. Silke, V-P commented on the jurisdiction of the High Court to entertain applications for Orders of Prohibition and Certiorari at page 54 of his judgment. He had this to say:-

" So: while specific provision is made for the issue of mandamus to a District Court judge no such provision is made for the issue of for prohibition and certiorari. There is no specific reference in either case to the appellate process.

Appeals in habeas corpus matters are provided for by s 24 of the Supreme Court Ordinance which reads:

"An appeal shall lie as of right to the Court of Appeal from any decision of the High Court on a criminal or civil application for habeas corpus, whether the High Court orders the release of the person restrained or refuses to make such an order."

Under s 25 of the same Ordinance, where a person has been sentenced for an offence in the magistracy or the District Court, he may apply for an order of certiorari to remove the proceedings before the magistrate or judge of the District Court into the High Court.

No specific provisions are made for the issue of either prohibition or certiorari before conviction has been recorded. That is the legislative background. But I would add this that Order 2 subrule 3 of the Rules of the Supreme Court states:

"These rules shall not have effect in relation to any criminal proceedings other than any criminal proceedings to which Order 59, Order 62 or Order 115 applies."

When this was drawn to the attention of counsel in the course of the hearing of this matter Mr Hamilton sought to pray it in aid of his general contention that judicial review proceedings can only be civil in nature."

13. Mr. Mccoy's answer to this was that if any jurisdiction was lacking this was made good by section 6 of the Bill of Rights Ordinance. This reads:-

"6. Remedies for contravention of Bill of Rights

(1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights.

14. I accept that this contention would be correct if no other form of relief was available. This is not so in the present case.

15. With the greatest respect, I find myself in entire agreement with Miss Hartstein's view of the matter.

16. I would further observe that even if I had not been able to come to this conclusion I would still be of the opinion that the correct course for the applicant to follow would have been to place before the District Judge hearing the case any arguments which may have been relevant to the issues which he is now raising

17. In Keung Siu Wah v. Attorney General (1990] 2 HKLR 238, the Court of Appeal considered an appeal from my judgment when I considered the whole question of the appropriateness of judicial review as a remedy when the relief was being sought during the currency of on-going criminal proceedings. Fuad, JA commented on the undesirability of a proliferation of proceedings and indicated the correct course which should be adopted at page 255:-

" In my judgment, if the prosecution of the applicant goes ahead, any complaints, he may still have can only be raised before the trial court; and thereafter, if appropriate, on appeal. In my judgment it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised. The Australian judges in R. v. Barton were not taking too technical or artificial a view. Their decision recognises and preserves the unique constitutional position of the Attorney General, while reserving to a Court its inherent jurisdiction to prevent an abuse of its process.

In the criminal field this is still a developing and unsettled area of the law, but one thing is clear - exceptional circumstances must exist before a Court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine.

It was my opinion that Mayo, J. was right when he held that the application for judicial review was misconceived and so I agreed with my Lords that the appeal should be dismissed."   

18. I am further persuaded that this is the correct approach by the observations made by Sears, J. in Tang Yee Chun v. Attorney General [1988] 2 HKLR 408 at 415:

"Mr. Findlay in his very able argument submits that the courts will not interfere with the role of the Attorney General nor become involved in the prosecution process.

In Gouriet v. Union of Post Office Workers (1978] AC 435 Viscount Dilhorne, at p. 487, said:

"The Attorney General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts."

In R. v. Cheung Sou-Yat [1979] HKLR 630, both Cons, J. and Yang, J. (as they then were) considered, obiter, that the courts could intervene if the Attorney General exercised his discretion in an improper manner. In the light of more recent authorities, in my judgment a court can only intervene if the Attorney General's decision is initially justiciable and then it must be of such a nature as could be classified as 'outrageous'.

It is not for the court to tell the Attorney General what to do or the manner in which he should do it. It should avoid either influencing or interfering with the criminal process. It is the duty of the Attorney General to prosecute those who break the law and he should be permitted to exercise that public function without being answerable to the court."

19. I am satisfied that this application for judicial review is misconceived and that the issues which have been raised should be dealt with as part of the trial in the District Court and that if the applicant is not satisfied with the way in which it is dealt with there his remedy lies before the Court of Appeal.

20. For the reasons I have given, I would dismiss this motion.