Chung Tse Ching and Another v. Commissioner of Correctional Services

CACV000057/1988

Headnote

1. A Judge of the High Court has power of his own motion to revoke basil granted by the High Court, but should only do so for good reason.

2. A Judge of the High Court has no power of his own motion to interfere with bail granted by a magistrate.

3. Excess of _Jurisdiction in this respect by a Judge of the High Court is not amenable to Habeas Corpus proceedings.

BETWEEN

___________________

Coram: Hon. Cons, V.-P., Clough & Power, JJ.A.

Date of hearing: 29th April, 1988.

Date of delivery of judgment: 2nd May, 1988.

_______________

J U D G M E N T

_______________

Cons, V.-P. delivered the judgment of the Court:

1. This is an appeal from O'Dea, J. who refused to order the issue of a writ of habeas corpus in respect of one Chung Tse Ching and another Tsoi Kwok Wai currently detained at Lai Chi Kok by virtue of an order of Hopkinson, J.

2. Chung and Tsoi were arrested on the 7th December last year and were in due course committed for trial in the High Court, together with two others, upon one count of robbery. The indictment is dated the 7th march 1988.

3. On the 2nd March 1988 Chung was granted bail by the committing magistrate in the sum of $5,000 cash, surety of $2,000, surrender of all travel documents and twice weekly reporting to the police. At sometime subsequent to the 2nd Match Tsoi was granted bail in similar but stricter terms. We understand this was on application to a Judge of the High Court. The distinction is of some importance. We have not seen either recognizance, but we assume each was in the normal terms that Chung or Tsoi should surrender themselves to the High Court on the date appointed for trial, or otherwise bail would be forfeited. The trial was subsequently fixed for the 5th May, i.e. in three days time.

4. In January 1985 a Pre-Trial Procedure was introduced into the criminal practice of the High Court by a Practice Direction, issued by the then Chief Justice on the 30th November 1984. The object of the procedure is to shorten trials as far as possible by, for example, the elimination of unnecessary evidence; to see that no one in taken by surprise at the trial and in general to ensure its smooth and efficient running. The procedure has a great potential for good, although its success depends to a large extent upon the frank and wholehearted cooperation of the defence.

5. Paragraph 4 of the Practice Direction provides that-

"    Not less than 4 days before the date fixed for trial ...., a judge, who shall if practicable be the judge who is to try the case, may, if he considers it desirable to do so, require counsel for the Crown and the Defence to attend a meeting in his Chambers, presided over by him.''

In the present instance Hopkinson, J. called a meeting for 9.30 a.m. on Tuesday, the 26th April, i.e. last Tuesday. Chung and Tsoi did not attend. They were not so required. Paragraph 7 of the Practice Direction reads -

"    The accused shall be present at such a meeting unless the accused or his solicitor informs the judge that he does not wish to attend."

Nevertheless at the request of Hopkinson, J., communicated to them during the course of the morning, Chung and Tsoi did both attend when the meeting was resumed at 2.15 p.m. We do not know what particular factor influenced the judge to make his request, despite the obvious and initial wish of the two men not to be present.

6. Paragraph 5 of the Practice Direction provides -

"    At such meeting, counsel will be expected to inform the judge of the following matters -

(a) of the pleas to be tendered at trial, ..."

In compliance therewith counsel for Chung and Tsoi advised the judge that they would plead guilty, whereupon, with no prompting from counsel for the Crown, the judge indicated that, subject to what counsel might say, be proposed to revoke bail. Counsel was thereafter unable to persuade the judge to change his mind and an order for their detention was made.

7. Last Thursday application was made for a writ of habeas corpus. O'Dea, J. reserved his decision until the following morning, and then refused the application. We heard the appeal late on Friday afternoon, indicating that we would give our decision this morning.

8. The submission to the judge below, repeated before us, was that Hopkinson, J. had no jurisdiction to revoke bail upon his own motion. The judge below was not so persuaded. He said -

" To be successful in this application it would have to be shown that at a pre-trial meeting when an accused person is present a Judge does not have the power to review or revoke the terms of bail imposed by a lower Court. In my view such a power must exist. One can envisage a number of situations where a substantial change of circumstances would compel a review or a revocation of an accused's bail. That a judge cannot, in such a case call the defendant before him, whether in the course of a pretrial procedure or otherwise, and review his condition of bail seems to be against all bounds of reason and I am satisfied that a Judge has an inherent jurisdiction in this regard."

9. The inherent power of a superior court to admit to bail is now set out in Section 12A of the Criminal Procedure Ordinance, Cap, 221. Multiple applications upon a refusal are precluded by Section 123, unless "there hasbeen a material change in the relevant circumstances." There is no appeal against a refusal of bail by the High Court, but the Attorney General may apply for a review to a judge thereof where bail has been granted by a District Judge or by a magistrate Section 12C.

10. Both the statute and, as far as we have been made aware, the common law are silent as to the power of a superior court to revoke bail already granted by it. Counsel for Chung and Tsoi concedes that such a power does exist; but he contends that it may only be exercised, prior to the trial, upon a formal application to a judge. In other words the judge may not revoke bail on his own motion, except during the course of the trial.

11. Once that concession is made we find it difficult to discern any acceptable principle which would preclude the judge's intervention on his own motion if, for example, he became aware privately of matters which would have justified the formal intervention of the Attorney General.

12. But in any event we take the view that where an authority has power to make a grant of something, there is necessarily implicit in that power a corresponding power to revoke whatever may have been granted under it, although of course we would not expect the authority to do so other than for sufficient reason. We make no comment on whether an express intention to plead guilty is sufficient reason to revoke bail. We would only observe that such an intention may well have been present in Chung and Tsoi for a long time, and yet they had until last Tuesday faithfully fulfilled their bail condition so far as they could; and further that, if it were to become established practice to revoke bail in like circumstances the efficacy of the pretrial procedure may well be severely reduced. Even if imprisonment be inevitable, it is human nature to postpone the evil day for as long as possible.

13. So far then as Tsoi is concerned we are satisfied that the order made by Hopkinson, J. was within his jurisdiction and the application for relief is dismissed. The position with regard to Chung is different. As we have already observed, he is on bail by virtue of an order made by a magistrate, and we are not aware of any general jurisdiction in the High Court, inherent or statutory, which entitles a judge thereof to interfere with the order of a magistrate. There are particular instances. For example Part VII of the Magistrates Ordinance provides for appeal from a magistrate to a High Court. Section 120 of the Criminal Procedure Ordinance, to which we have already referred, is another example nearer home. Nevertheless, in neither instance can the power of the High Court be exercised other than on a formal application. In the present instance there was no applications with respect to the judge below he arrogated to himself a jurisdiction which he did not in law possess.

14. We have to consider then the submission of Mr. Duckett for the Crown that even so the writ of habeas corpus has to be refused. With some reluctance we have come to the conclusion that the submission is correct. The writ of habeas corpus is a writ returnable in the High Court. Its purpose is that the person in question may be produced before the High Court so that the validity of his restraint may be tested there and if found to be unlawful, that he may be released. No problem arises where the restraint has been imposed by an inferior court, or by some other authority with limited powers. But the High Court is a court of unlimited jurisdiction. Moreover, it cannot test the validity of its own decisions. In In re Kray⁽¹⁾, which is the only authority to which we have been referred, Lord Gardiner L.C. quoted with apparent approval the words of Vaisey, J, in In re Hastings (No. 3) -

"How we, judges of the High Court, could be heard to override, overrule, or otherwise interfere with a judgment which was the result of the hearing by the Divisional Court, or how we could be heard to say that the conclusion of that court, and its order - an order of our own court, the only court which exists, the High Court of Justice was wrong, and that something else should be done, is beyond my comprehension,"

15. With respect we accept that as correctly representing the law. Only the Court of Appeal can be heard to say that a decision of the High Court is wrong. But the Court of Appeal is a creature of statute, and as we mentioned earlier in passing; there is no provision for appeal with regard to bail. The protection of the liberty of the subject in that respect is the responsibility of the High Court, and of the High Court alone. In practice that responsibility is exercised by a single judge. His conduct can in no way be called in question in file same court. That has been the position for many, many centuries. Whether there is now need for change is a matter that may perhaps be considered in another place. Applying the law, however, as it stands we have to say that the application on behalf of Chung must also be dismissed.

(1) (1965) 1 Ch. 736 at 745A

Representation:

Graeme A. Mackay (M/s Hastings & Co.) for the Applicants/Appellants

A.P. Duckett, Q.C. & J.M. Gerber, Crown Prosecutor for the Respondent