Read the full judgment text of CACV 224/2017 & CACV 285/2017 on BabelCite. This Court of Appeal judgment was delivered on 3 August 2018 before 林文瀚 (VP), 關淑馨 (JA), 陳嘉信 (Judge of the Court of First Instance).
Civil procedure – judicial review – leave to apply for judicial review – whether judicial review available as last resort when applicant has not exhausted alternative appeal route – whether applicant voluntarily abandoned right of appeal – whether apparent bias required first instance judge to recuse herself – whether Practice Direction 9.2 permits private prosecution by way of bill of indictment in the Court of First Instance – interpretation of s.8(1) and s.8(1B)(b) of the Magistrates Ordinance (Cap 227) – Articles 63 of the Basic Law – ss.15(1), 17(1), 24A(1)(b) of the Criminal Procedure Ordinance (Cap 221) – applicant was D1 in District Court criminal case DCCC 919/2015 for conspiracy to smuggle unmanifested cargo and conspiracy to deal with property representing proceeds of indictable offences – 13 search warrants executed by Customs in January 2012 held by Court of First Instance and Court of Appeal to have expired and items unlawfully seized (HCAL 113/2012, HCAL 82/2013, CACV 97/2015, CACV 107/2015) – applicant filed two proposed bills of indictment in Eastern Magistrates' Court seeking private prosecution of 12 Customs officers and government counsel for conspiracy to obtain property by deception and conspiracy to give false testimony – magistrate refused to issue summonses under s.8(1) Magistrates Ordinance on grounds of abuse of process and lack of evidence – first instance judge (Poon J) refused leave for judicial review in HCAL 192/2017 and HCAL 387/2017 on basis that judicial review is a last resort and applicant had voluntarily abandoned appeal route after obtaining extension of time – Court of Appeal held no apparent bias requiring recusal – Practice Direction 9.2 not a statutory provision and cannot override statutory requirements for private prosecution – applicant conflated s.8(1) summons procedure with bill of indictment procedure – magistrate's decision was lawful and procedurally fair – appeals dismissed – appellant to pay costs of Commissioner of Customs – court issued formal warning regarding further potentially abusive judicial review applications and indicated that a 'restriction of proceedings order' may be made if such applications continue
Legal issues: Apparent bias and recusal of first instance judge · Whether judicial review leave was correctly refused on the basis that applicant had not exhausted appeal route · Whether Practice Direction 9.2 permits private prosecution by way of bill of indictment in the Court of First Instance · Lawfulness and procedural fairness of the magistrate's decision to refuse summons
Outcome: Appeals in CACV 224/2017 and CACV 285/2017 dismissed. The applicant/appellant had no grounds to challenge the first instance judge's refusal of leave to apply for judicial review.
Cited by 42 cases · Cites 10 cases