George Tan Soon Gin v. His Honour Judge Cameron and Another

CACV000081A/1991

Headnote

Appellate jurisdiction: judicial review with a criminal root: appeal brought as civil proceedings; s 13(2) Supreme Court Ordinance Cap 4: meaning and extent of phrase "in any civil cause or matter": In Re an application for judicial review by a firm of solicitors [1990] 2 HKLR 146 not followed: AG v Alick Au Shui Yuen (Civil Appeal 149/1991 - unreported) adopted and followed: Government of the United States of America v Frederick Nigel Bowe [1990] 1 AC 500 P.C. followed.

Delay abuse: burden of proof: permanent stay; exercise of discretion

Prejudice: hearing of District Court criminal charges: relevance to future High Court criminal trial: power to stay or adjourn: burden of proof: refusal in limine: "Wednesbury" unreasonable: Associated Provincial Picture Houses Ltd v Wedensbury Corp. [1948] 1 KB 223 revisited: exercise of discretion.

Order: query use of judicial review where stay of criminal proceedings refused: should refusal remain part of appellate process.

Civil Appeal No. 81 of 1991

IN THE SUPREME COURT OF HONG KONG

THE COURT OF APPEAL APPEAL

(On Appeal from High Court

Miscellaneous Proceedings No. 449 of 1991)

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Coram: Hon. Yang, C.J., Hon. Silke, V.-P. & Hon. Bewley, J.

Dates of Hearing: 1, 4, 8, and 9 October 1991

Date of Handing Down Judgment: 29 November 1991

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JUDGMENT

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Hon. Yang, C.J.:

1. On 18th December 1990 His Honour Judge Cameron made a ruling refusing to adjourn or to stay temporarily a criminal trial before him of all or some of the eight charges against the applicant of Offering an Advantage to an Agent (District Court Case No. 317 of 1990) pending the determination of proceedings against the applicant in Western Magistracy Case No. 5424 of 1985 in respect of 23 charges of frand and bribery in connection with the Bumiputra Malaysia Finance Ltd. (hereafter referred to as "BMFL"). These 23 charges might eventually be heard in the High Court. Alternatively the District Judge was asked to stay two of the charges before him indefinitely, which he also refused.          

2. The ruling became the subject matter of a judicial review before Barnett, J., and by his judgment dated 13th May 1991, he confirmed the ruling of the learned District Judge.

3. The applicant then appealed to this Court against Barnett, J.'s judgment.

Whether the Court of Appeal has jurisdiction to hear the appeal

4. In the course of the hearing of this appeal, Sir Derek Cons, V.-P., presiding in another division of this Court in another case delivered a judgment, on the 3rd October, which impinges on the question of jurisdiction of this Court to hear' this appeal. We therefore interrupted hearing on the main appeal to hear counsel on this issue. We are indebted to both leading counsel for their assistance.

5. The learned Vice-President, delivering the judgment of the Court in that case, namely, Attorney General v. Alick Au Civil Appeal No. 149 of 1991, considered s. 13 of the Supreme Court Ordinance, Cap. 4. Section 13(2) and (3) provides: -

6. The conclusion drawn in the judgment is that the only paragraph in s. 13 that could apply is sub-s. 2(a), and accordingly the Attorney General must show that the order appealed from was made in a civil cause or matter, or the Court "must decline to hear him further".

7. There the well-known passage of Lord Wright's speech in Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government (1943) AC 147 was cited (at p. 162). It is worth repeating:

"The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment, such as imprisonment or fine, it is a 'criminal cause or matter.' The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal."

8. Donaldson, M.R., in Day v. Grant (1987)1 QB 972 held that the starting point in such a case must be s. 18 of the Supreme Court Act 1981. Section 18(1)(a) of the Act provides that no appeal shall lie to the Court of Appeal from any judgment of the High Court in any criminal cause or matter. It therefore becomes necessary for us in this appeal to determine whether the law in England on this topic applies equally here, or whether the characterisation of a cause or matter as civil or criminal has any relevance in Hong Kong. Lord Donaldson, M.R., went on to say that the Court looks not to the particular order under appeal, but to the underlying proceedings which have to be characterised as either criminal or not criminal, and "that provides the test" (at p. 976). The case of U.S.A. v. Bowe (1990)1 AC 500 was decided along similar lines.

9. Clearly, then, if the English authorities were followed, the District Judge's refusal to adjourn or stay, which was in effect the order we are in this Court concerned with, was an order made in a criminal cause or matter.

10. The situation in Hong Kong however is quite different, argue both Mr. Hamilton for the applicant and Mr. Corrigan for the Attorney General. Here because of the Supreme Court Ordinance, Cap. 4 and the Rules of the Supreme Court Rules we are obliged to look at the whole question in the context of jurisdiction and not at the root cause of the subject matter of the appeal as in England.

11. The Hong Kong position was stated by the Full Court in Re An Application by the Attorney General (1972) HKLR 336. There Huggins, J. (as he then was) said this (at p. 338):

"We decided that in the exercise of the supervisory jurisdiction which this Court has over inferior courts the Court is sitting in its civil jurisdiction and not in its criminal jurisdiction, and we gave reasons at length."

12. Unfortunately, in spite of concerted efforts, those reasons cannot be found.

13. The next Hong Kong case is Re An Application for Judicial Review by a Firm of Solicitors (1990)2 HKLR 146.

14. This was an appeal brought by the Independent Commission Against Corruption against a High Court Judge's order granting a declaration that a search warrant issued by the Commission against the firm of solicitors under s. 17(1) of the Prevention of Bribery Ordinance, Cap. 201, was invalid. There Hunter, J.A. delivering the judgment of the Court of Appeal said this (at p. 150 A - F):

"At the outset of the hearing we considered and rejected a submission from.the respondent that this appeal arose in a . criminal cause or matter, so that this Court had no jurisdiction to hear it. The submission was founded upon a line of English authority stretching from Ex parte Alice Woodhall (1888)20 QBD 832, with some vicissitudes to Carr v. Atkins [1987] 1 QB 963. We were invited to treat this authority as establishing general rules or principles governing the proper identification of suits as civil or criminal causes or matters, and not simply as decisions upon the construction of the relevant English statutes. This court, it was said, should accordingly apply the source or origin test requized by this authority. From this it would follow that this application for judicial review was criminal in origin; should accordingly be regarded as arising in a criminal cause or matter; and did not fall within the only criminal jurisdiction of this court, namely the specific jurisdiction given by s. 13(3) of the Supreme Court Ordinance (Cap. 4). It equally followed that O. 53, r. 13 which purported to confer jurisdiction upon this court was ultra vires in relation to appeals in criminal causes or matters. In our judgment the intial premise was unsound. This line of English authority was overtly concerned with the construction of the relevant English statute at the time, which originally was s. 47 of the Judicature Act 1873 and is now ss. 16 and 18 of the Supreme Court Act 1981."

15. The learned judge then went on to consider ss. 21 I and K of the Supreme Court Ordinance. He concluded (at p. 151 H) that the legislature was clearly saying that in its current form the civil components in judicial reviews are so strong that application which the relief authorised by s. 21 K is to be regarded as a civil cause or matter. The Court was of the view that there was very strong ground for saying that this conclusion was applicable to all applications for judicial review, and "that by recognising both potential criminal origins in s. 21 I and then by channelling all judicial review applications together by s. 21 K under Order 53, the legislature was providing for all " (p. 151 J - p. 152 A).

16. In the Alick Au Case (supra) Sir Derek Cons declined to pursue the course suggested by Hunter, J.A. by reason of the decision of the Privy Council in U.S.A. v Bowe (supra).

17. I have had the advantage of reading my brother. Silke's judgment in draft on the question of jurisdiction and I respectfully agree with it. Clearly the District Judge's order was made in a criminal cause, and the governing provision is s. 13(2) of the Supreme Court Ordinance.

18. I too would hold that this Court has no jurisdiction to hear the appeal.

19. This appeal may therefore be disposed of on this narrow ground, but should I be wrong, I will now go on to consider the main appea.

The main appeal

20. I now come to the main appeal, for which purpose it is necessary to consider the facts:

21. On the 7th December 1985 the applicant was arrested and charged with 23 offences which have come to be described as "the BMFL charges". Lorrain Osman was named as a co-conspirator in some of the charges. He is now in England fighting his extradition to Hong Kong. It cannot be predicted when he could be brought to Hong Kong to face trial. Accordingly, on the application of the Prosecution, committal proceedings in respect of the BMFL charges have not begun and those charges remain adjourned in the Magistrates Court.

22. On the 5th July 1988, the applicant was arrested and charged with six bribery offences in relation to the West LB (Asia) Ltd. (these are described as "the West LB charges"). Those charges were to be heard in the District Court. On the 23rd August solicitors acting for the applicant repeated their query as to why the trial was to be in the District Court rather than before a jury in the High Court, and they reiterated that the trial of those charges should in any event be deferred until after the trial of the BMFL charges. On 2nd November, the Attorney General agreed to a deferral as the return of Osman was then expected. Osman's return not having taken place, the Attorney General on the 16th June 1989 informed the applicant's solicitors that the West LB charges would be prosecuted as a matter of priority.

23. In the meantime, in August 1983, investigations by the Independent Commission Against Corruption (ICAC) were being conducted into Barclays (Asia) Ltd., and they received information that one Stuart Turner, then an execurtive director of Barclays (Asia) Ltd. had received illegal advantages or bribes from the group of companies under the applicant's control (called "the Carrian companies") in 1981 - 1982. Turner was arrested in England on 8th June 1987. By December 1987 the ICAC discovered, inter alia, that payment of $888,000 had allegedly been made to Turner by the applicant. On 23rd June 1988, members of the Attorney General's Chambers gave applicant's solicitor what the solicitor described as "an assurance" that whilst there was a strong likelihood of the applicant being prosecuted for the West LB charges, there was no such intention in relation to the bribery in the case of Barclays (Asia) Ltd. unless Turner agreed to testify against the applicant. A few days later, on the 30th June Turner returned to Hong Kong; on 9th August he pleaded guilty to two of the five charges brought against him, one of which being the acceptance of a bribe of $888,000 from the applicant. In the following year, on the 15th June 1989, the Attorney General decided to consider prosecuting the applicant inrelatioin to the Barclays (Asia) Ltd. bribes (called "the Barclays Asia charges"). The applicant's solicitors were informed on 25th July. On the 25th October the Attorney General informed the applicant's solicitors that it was proposed to charge the applicant with the Barclays Asia charges an these and the West LB charges would be heard in the District Court before the BMFL charges. On the 3rd November the applicant was arrested for the Barclays Asia charges. Following an unsuccessful application for judicial review the Attorney General's decision to prosecute the Barclays Asia charges were transferred to the District Court and consolidated with the West LB charges: these charges later came before District Judge Cameron as Disctrict Court Case No. 317 of 1990. The long delay in bringing the prosecution of the Barclays Asia charges will be considered below.

24. What followed were several hearings in the District Court and the Magistrates Court, culminating in District Judge Cameron's ruling of the 18th December 1990, followed by Barnett, J.'s judgment of 13th May 1991 (supra).

25. The position as it now stands is that District Court Case 317 of 1990 has been set down for hearing in early 1992.

26. On this appeal, the applicant asks for orders :

and alternatively,

27. Mr. Hamilton, leading counsel for the applicant, advances his grounds of appeal under four main headings: 1. The Disitrict Judge's power to stay/adjourn proceedings (Grounds A and B). 2. The District Judge's refusal of a temporary stay or adjournment was Wednesbury unreasonable (Ground C). 3. Will the BMFL charges come to trial? (Ground D). 4. The Barclays Asia charges: permanent stay/abuse of process (Grounds E, F, G and H).

1.        Power to stay/adjourn proceedings

28. The applicant's application to have the District Court Case stayed or adjourned until after the trial of the BMFL charges in the High Court was attacked by Mr. Corrigan, leading counsel for the Attorney General, before District Judge Cameron, on the basis that the Judge was obliged to hear the District Court Case before him, and the effect that trial might have on a subsequent High Court trial was a matter not for him but for the High Court. Barnett, J. in his judgment, whilst noting that the District Judge did not refer to this question, thought Mr. Corrigan's submission that that the applicant's application should be dismissed in limine unassailable.

29. There are no direct authorities in point, but I would have been surprised if a judge was powerless to prevent a clear case of injustice in another case if by staying or adjourning the case before him that injustice could be avoided.

30. Perhaps no authorities are needed, for it must be right that a court may in the exercise of its inherent jurisdiction, stay or adjourn the case before him if to proceed with the trial would clearly cause an injustice in another case before another court. These cases must however be very rare.

31. As a general proposition I would say that the District Judge had the jurisdiction contended for by Mr. Hamilton.

2.        The District Judge's refusal of a temporary stay or adjournment was Wednesbury unreasonable

32. The well-known phrase "Wednesbury unreasonable" is explained by Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment (1986)1 AC 240, at p. 249 A-E.

33. It is argued on behalf of the applicant that the adjournment desired will avoid the unnecessary and certain prejudice to the applicant at no cost to the Crown. There was, in those circumstances, only one rational decision open to the District Judge and that was to postpone the District Court trial until after the jury trial of the BMFL charges. It is further urged that that avoidable prejudice may make the difference between a finding of guilty and a finding of not guilty by a jury. The argument that the prejudice may be dealt with by appropriate procedures in the High Court is denounced as being of doubtful validity. In support of this contention, it is maintained that prejudice would certainly occur in the later High Court trial by a jury because of the wide publicity that would inevitably accompany the earlier District Court trial. The adverse effect upon the jurors, Particularly in the light of the similarities in the BMFL charges and the charges in the District Court case, is seen as irreparable.

34. With respect, the argument that wide publicity given to the District Court trial would prejudice the jurors in the later High Court trial doses not bear close examination. There was, in 1983, already wide publicity given to the collapse of the Carrian companies headed by the applicant. Subsequent events, all reported in the media, connecting the applicant with what the Crown describes as a "whole catalogue of potential prejudice", must not be overlooked. The Crown asks, "Could it be said - sensibly - that all the accumulated adverse publicity - prejudice - was 'redeemable' to permit a fair trial in BMFL - but that this additional fact of the Applicant's trial (and conviction) on these District Court charges would make the total prejudice 'irredeemable' so there could not be a fair trial in BMFL." Mr. Corrigan contends that such a proposition is an affront to common' sense.

35. The District Judge here had the difficult task of balancing the interests of the applicant and that of the community. In the light of Mr. Corrigan's cogent argument, I am of the view that the learned District Judge cannot be criticized under this head of appeal.

3.        Will the BMFL charges come to trial?

36. The argument made on behalf of the applicant here is as follows.

37. Having correctly stated that the position before the learned District Judge should have been that the Attorney General was taking all possible steps to bring the BMFL charges to trial within a reasonable time even if this meant dealing with the applicant separately, Barnett, J. should have held that the District Judge was wrong not to assume this, and that the District Judge therefore must have taken into account a matter which he was not entitled to take into account, namely that the BMFL charges would or might never come to trial. By using the phrase "should BMFL come to trial" in his ruling the District Judge accepted the possibility, or assumed, that trial of the BMFL charges would or might never take place; this was unwarranted by the evidence before the District Judge. The District Judge therefore exercised his discretion upon a false premise

38. The argument goes on to say that if the learned District Judge admitted even the possibility - that the BMFL trial would not take place, his view of the degree and likelihood of prejudice would be inevitably and fatally coloured so as to undermine the exercise of his discretion.

39. It is suggested the District Judge's erroneous approach to this question might have been the key to the conclusion he came to in refusing an adjournment or stay of the trial before him.

40. What the District Judge said in his ruling is this:

"I understand and accept that in refusing this Application this may give rise to problems should the BMFL charges come to trial but I do not accept that even if there is a conviction against GEORGE TAN in the District Court that that would necessarily raise an insurmountable obstacle to a fair trial on the BMFL charges."

41. In dealing with this issue, Barnett, J. said this:

"The query then is whether the judge was saying to himself, 'well, the BMFL trial may never happen, so it does not make much difference if the District Court trial goes ahead.' If he said that, it is submitted that it materially affected his conclusions. On the other hand, had the judge argued to himself that the BMFL trial will go ahead and asked himself what would be the effect, he would have reached a different conclusion. It is tempting to say the judge got it wrong, but I am satisfied that I would be wrong to do so. The judge carefully canvassed all the arguments and was alive to the issues involved. I do not consider that his failure to exercise his discretion in favour of the applicant was vitiated by the considered but unfortunate use of the word 'should'."

42. I agree. In my view, what the District Judge was in fact saying was that the BMFL trial might not take place, but even if there was to be one, the conviction of the applicant in the District Court would not cause insurmountable prejudice to a fair trial on the BMFL charges. Reading the District Judge's ruling in its proper context, I can find nothing wrong in the passage quoted above.

4.        The Barclays Asia charges: permanent stay/abuse of process

43. It will be noted that the alleged offences were committed in 1981 - 1982, and it was not until the 3rd November 1989 that the applicant was arrested for the Barclays Asia charges. Those charges came before the District Court as late as 1990.

44. The gravamen of the applicant's complaints under this head of appeal are as follows.

45. In his judgment Barnett, J. summarised the principles which he extracted from the authorities. His reading of the authorities is accepted by Mr. Hamilton as being correct. The learned judge said:

"From the authorities, I think the following principles may be extracted:

Those five factors I derive principally from Jago and also from Bell v Director of Public Prosecutions of Jamaica (1985) 2 All ER p. 585. Of those five, factors (d), prejudice and (e), public interest are the most important. I do not say that that list is exhaustive or constitutes an inflexible code. The Court should, of course, weigh any and all relevant material and come to a proper judgment."

46. With respect I adopt the learned Judge's analysis.

47. For the sake of completeness, we need only refer to two more cases.

48. In R v Watford Justices (1983) RTR 26, Donaldson, L.J. (as he then was) held that when service of a summons was delayed for so long as to produce substantial Prejudice to the accused person or to be unconscionable, justices had a discretion to decline to proceed to hear the summons, and in order that that situation shall be reached, there has not only to be a lapse of time sufficient to lay the foundations of such allegation, but there has also, ofcourse, to be an absence of any evidence that the accused person has contributed to the delay by negligence of any sort and a fortiori by any attempt to avoid service of the proceedings (p. 29 D-G).

49. In R v West London Stipendiary Magistrate 80 CAR 143, Goff, L.J. (as he then was) held that in considering whether there had been undue delay in bringing prosecution, the court should address their minds not only to whether or not the accused had made enquiries of the police, or whether the police had acted in bad faith; but whether the delay had been caused by the prosecution's inefficiency or by failure of the system or whether the accused himself had caused or contributed to the delay (p. 149).

50. It seems logical that I should begin with Ground F, as it concerns an issue of some fundamental importance.   

51. The contention under Ground F is that Barnett, J. wrongly interpreted the approach of the District Judge to the assessment of the evidence concerning prejudice arising from delay. It is argued that Barnett, J. was wrong in not criticising the District Judge for having placed the burden of proving prejudice upon the applicant, and for finding that the District Judge had correctly placed the burden of proof.

52. In that part of his ruling headed "Fourth - proven or likely prejudice to the accused", the District Judge "effectively began and ended with what the applicant submitted or failed to submit", as Barnett, J. found, but the learned Judge did not find the District Judge's approach "necessarily significant". Mr. Hamilton argues that when dealing with the question of presumption of prejudice in case of long delay and the rebuttal of that presumption, it was not clear that the District Judge correctly identified where the burden of proof lay. He complains that the District Judge laid emphasis on what was submitted by the applicant and not what the Crown was putting forward in rebuttal. There is in my view much force in Mr. Hamilton's complaint.

53. Here there cannot be any doubt that a presumption of prejudice arose as a result of the inordinately long delay in prosecuting the Barclays Asia charges, the burden is therefore upon the prosecution to rebut that presumption.

54. Mr. Corrigan, Q.C., concedes that where the period of delay was substantial as in this ease the court may infer prejudice without proof of specific prejudice, and the presumption of prejudice is to be rebutted by the prosecution. The legal onus or burden of proof lay on the applicant to show on a balance of probability that "delay prejudice" had been established to such a degree that a fair trial was impossible. Where the period of delay was substantial as here the court may infer prejudice without proof of specific prejudice. This presumption may be termed an "evidential" rather than a "legal" presumption. It cast an evidential or persuasive burden only upon the prosecution. It did not affect the legal burden of proof which remained with the applicant. This presumption could be rebutted by the Crown by evidence and argument on a balance of probability showing that there was no such prejudice in all the circumstances.

55. Whilst I am prepared to accept Mr. Corrigan's argument as a general proposition of the law, I am unable to say the learned District Judge's mental process was necessarily consistent with that proposition. In my judgment, the District Judge appears to have placed the burden of proof upon the applicant.

56. Grounds E, G and H may be taken together. Put briefly the arguments advanced on behalf of the applicant are as follows. The District Judge considered several matters which he ought not to have considered in relation to any blame that might be attached for the delay and similarly he failed to take into account matters which he ought to have taken into account. These matters are all particularised in the Grounds of Appeal, which I do not propose to repeat or deal with individually. It is contended that the District Judge's mistaken approach led him to excuse the Crown for the delay and blame the applicant instead. It is his approach and not simply his conclusions which should be examined.

57. The District Judge took the view that the applicant was partially responsible for the delay. This view would colour his opinion as to whether prejudice had occurred and whether on balance, there had been an abuse of process.

58. The delay here was so long that there must be a presumption that the applicant would be handicapped in his defence. "What has been forgotten can rarely be shown." In assessing handicap, the District Judge wrongly placed emphasis on the unusual amount of money ($888,000) and the unusual number of shares (668,000 shares) (as indicating Chinese superstition) which Stuart Turner was said to have received as advantages under the Barclays Asia charges. These considerations Barnett, J. found to be irrelevant. It follows that the District Judge's conclusion that this "is not a difficult case to answer" was based on the factors which he should not have taken into account. Furthermore the District Judge was wrong to say "the charges" were straightforward and not difficult to answer. In any case, simplicity of charges is not the proper consideration: it is the simplicity of the case. Lastly, apart from handicap, other elements - anxiety, the applicant's illness, the mental stress of having the charges "hanging over his head for a prolonged periold"- should have been taken into account but were hardly considered.

59. Mr Corrigan on the other hand maintains that the District Judge adopted the correct approach and adhered to the considerations suggested in Jago's Case (supra). The District Judge had to form a value judgment and balance the interests of the applicant and the community The two most important factors to be weighed were prejudice and public interest. In accordance with the severity of the case the judge might give more or less consideration to two secondary factors, namely (a) the reasons given by the prosecution to excuse or justify the delay, and (b) the accused's responsibility for, and attitude to, the delay. I accept Mr. Corrigan's argument.

60. As to (a) sufficient prejudice has not been shown. The failure of the prosecution to justify the delay should accordingly not go to grant a stay. That the Crown's delay in preferring the Barclays Asia charges was unjustified was conceded by counsel for the Attorney General. Barnett, J. found that the District Judge should be more critical of the prosectuion than he was in his ruling. As to (b), the Crown concedes that the applicant bore no responsibility for the delay.

61. Mr. Corrigan goes on to argue that if it could be shown that the District Judge had gone seriously wrong on the factor relating to prejudice, then it might be arguable that his discretion had miscarried. However, it is none the less open to a court on review, even when it is shown that a tribunal was in error, to conclude that on a proper approach the tribunal must have arrived at the same conclusion.

62. Whilst accepting that the District Judge had wrongly taken certain matters into account, these are of peripheral importance in themselves, e.g. the Judge's criticism of the applicant's solicitors for not obtaining a written assurance from the Attorney General's Chambers not to prosecute the Barclays Asia charges unless Stuart Turner returned to Hong Kong; his remark that the amount of money and the number of shares Turner received from the applicant were unusual. Mr. Corrigan submits that the numbers, i.e. $888,000 and 668,000 shares, are "lucky numbers" par excellence in Hong Kong and as such are significant. I agree.

63. Next it is argued that the charges were indeed straightforward and not difficult to answer, that the District Judge was aware of loss of memory over such a long period but this was not a difficult case. Barnett, J. found that the relatively simple and straightforward charges were supported by documents, but not so many as to hinder rather than help. I agree. Having applied his mind to the matter of delay and prejudice, the District Judge was correct in concluding that the trial of the applicant on the Barclays Asia charges would not necessarily be unfair, in spite of the prolonged and unjustified delay.

64. In this context I ,would interpolate here a passage in the judgment of Taylor, L.J. in R v Bazalek v Schiffer sitting in the Court of Appeal, Criminal Division and dated the 27th February 1990 (unreported):

"It is important to distinguish between the sort of case in which what is going to be in issue at the trial is the recollection of witnesses about some event unsupported by documents and a case which largely (like this one) turns upon the documents. If after 6? years a case is going to have to turn on what witnesses saw in an affray, or in the course of an assault, or in the course of some road accident, then clearly the passage of time is going to be much more prejudicial than it is if there are documents indicating what was sent from one party to the other and what one Party was saying to the other at the time. The learned judge bore that matter in mind." (at p. 22)

65. I respectfully adopt the same approach.

66. Mr. Hamilton further compliaing of the slight references by Barnett, J. and the District Judge to the medical evidence on the applicant's bad heart condition and the need to avoid stress. We were given the medical reports on the applicant for the period from May 1989 to October 1990. He was classified as a high risk patient because the right main artery to the heart was completely blocked and the whole heart was dependent on the left main artery for blood supply. The medical advice was to keep his stress level to a minimum otherwise his deteriorating heart condition would be aggravated. Mr.Corrigan contends that such evidence is relevant to his fitness to stand trial, not necessarily to his handicap in meeting a case or preparing for trial, as affecting memory of events. I am of a similar view.

67. Next, Mr. Corrigan makes the following Point. One matter the District Judge took into account on prejudice was "the comparison between the Barclays Asia Ltd. charges and the West LB chares". He found that whilst the applicant was not charged with the Barclays Asia charges he was aware of the allgeations in the charges by the beginning of 1988 when Turner was extradited. The period of time between the alleged commission of both the West LB and the Barclays Asia offences and time the allegations of the same were brought to the applicant's attention were much the same. Yet there was no complaint of prejudice through delay in relation to West LB. It is his submission that the District Judge was entitled to have regard to this factor as a matter of some weight. The fact of Turner's extradition and the amount of money and number of shares he received from the applicant was reported in the press. The applicant was aware of those reports. Certainly the applicant and his legal advisers were aware of the allegations of his misconduct with Turner from 1988. The Barclays Asia charges therefore revealed nothing new to the applicant, though the notice of prosecution itself in July 1989 may have been "a bolt from the blue", as Barnett, J. found. Whilst such considerations do not assist the prosecution in relation to delay or excuse it, they must go to mitigate any prejudice suffered by the applicant as a result of the delay.

68. Mr. Hamilton stresses that Barnett, J erred in concentrating on the merits of the District Judge's conclusions rather than the merits of his approach. Mr. Corrigan contends that the District Judge's approach as well as his conclusions are correct. The court is entitled to adopt the "broad brush" approach. A court properly directed would inevitably come to the same conclusions as the learned District Judge. Barnett, J. however made it quite clear in his judgment  that he was not judging the merits of the application to the District Judge but rather the merits of the District Judge's approach to his decision.

69. Barnett, J. also reminded himself that the court must take a broad view of the decision and not allow itself to be bogged down in minutial, nor allow the tests in the Wednesbury decision to be erected into immutable propositions of law. As Griffiths, L.J. (as he then was) said in R v Chief Registrar of Friendly Societies (1984) AER 27 (at p. 42):

"In a decision involving the weighing of many complex factors it will always be possible to point to some factors which should arguably have been taken into account; even if they should have been, the court should not intervene unless it is convinced that this would have resulted in the decision going the other way."

70. Having considered all the arguments and applying the correct burden of proof, I now place myself in the position of the learned District Judge and consider whether, upon a balance of the interests of the applicant and the community, the long and inexcusable delay in prosecuting the Barclays Asia charges caused such prejudice to him that a stay of these charges should be ordered. In so doing, I bear in mind the broad-brush approach advised by Griffiths, L.J. in R v Chief Registrar of Friendly Societies (supra).

71. In all the circumstances of the case, I have no hesitation in coming to the conclusion that the Attorney General has succeeded in rebutting the presumption of prejudice resulting from delay, and that a fair trial, involving fairness both to the applicant and the prosecution, in the sense adumbrated by Lord Diplock in R v sang (1979) 69 Cr. App. R 282, at p. 290, is possible.

72. In my judgment, the District Judge's order was correct. It follows that Barnett, J. was correct in refusing the relief sought. I would accordingly dismiss the appeal.

Silke, V-P:

73. A magistrate having transferred the proceedings, George Tan Soon Gin - 'the applicant' - was charged, but not, at the material time, arraigned, in the District Court with eight counts of offering an advantage to an agent contrary to s 9(2) (b) of the Prevention of Bribery Ordinance Cap 201. The first four of those charges alleges the offer of an advantage to one Paul Kiang as an agent of West Deutsche Lancles Bank Asia Ltd - "Westlb" - Kiang has been tried alone on mirror charges, convicted and is now serving a sentence of imprisonment; charges 5 and 6 alleged the offering of an advantage to Dr Uwe Rameken also as an agent of Westlb; Dr Remeken's whereabouts are unknown and he has not been tried the Westlb charges"; charges 7 and 8 alleged the offer of an advantage to Leslie Turner, an agent of Barclay Asia Ltd; Turner was tried and convicted of mirror charges, was sentenced and has now been released - "the Barclay Asia charges".

74. On 12th November 1990 His Honour Judge Cameron began the hearing of applications made on behalf of the applicant to stay the Barclay Asia charges permanently or, in the alternative to stay them pending the determination of charges in magistrate's Case No 5424 of 1985 - this the Bumiputra Malaysia Finance matter - "BMFL" - of which more later, and to stay the Westlb charges pending also the determination of those BMFL charges. The temporary stay, it is accepted, can also be termed an indefinite adjournment. The basis for the application in respect of the Barclay Asia charges was delay abuse and, in respect of both the Barclay Asia charges and Westib charges, that the trial of these charges before the BMFL matter was heard would cause prejudice in that jury trial - prejudice which could easily be avoided.

75. On 4th December 1990 Judge Cameron ruled refusing the applications. On 18th December 1990 he gave his full reasons. On 9th February 1991 the applicant applied for leave to apply for judicial review. On 22nd February 1991 Sears J granted that leave. The hearings of the application for relief took place before Barnett J on 6th to the 8th May and on 13th May 1991 Barnett J gave judgment refusing the reliefs sought. On 7th June 1991 the applicant filed a Notice of Appeal, entitled as "civil", against that refusal by Barnett J.

76. The applicant had sought before Barnett J an order of certiorari to quash the order or decision of the District Judge to proceed with the hearing of District Court Case 317 of 1990 -the eight charges; alternatively an order prohibiting the District Judge in District Court Case 317 of 1990 from proceeding with charges 7 and 8 - the Barclay Asia charges - permanently; alternatively an order prohibiting the District Judge from proceeding with the trial of charges 7 and 8 pending the determination of the proceedings in BMFL; an order prohibiting the District Judge from proceeding with the trial of charges 1 to 6 - the Westlb charges - again pending the determination of BMFL and finally, as an alternative to those applications, he now seeks an order, on the Barclay Asia charges and the Westlb charges, prohibiting the District Judge from proceeding with the whole trial pending the determination of proceedings against the applicant on the BMFL charges or for such other period as the Court of Appeal shall deem appropriate - what might be called the "wait and see" application.

77. These proceedings have a long and convoluted history. The applicant was first arrested on 30th April 1983 and, on 7th December 1985, he was charged in respect of the BMFL charges. That which has become known as the Carrian trial then took place, between 19th February 1986 and 15th September 1987, at the conclusion of which the applicant was acquitted. There then followed an Attorney Generals Reference on a matter of law which did not affect the acquittal. The applicant was charged with the Westlb offences on 5th July 1989 and with the Barclay Asia charges on 3rd November 1989. The dates of those alleged offences were, respectively, between the 4th October 1981 and 9th June 1982 and between the 15th July 1981 and 2nd April 1982.

78. The BMFL charges, which involve comspiracy and a large number of bribery offences, concern, as well as the applicant, Lorraine Osman who has for a very considerable period of time been resisting his extradition from the United Kingdom and continues to do so; Dr Rais Suiliman who is resisting and continues to do so his extradition from France; Mohammed Shamsuddin who is presently serving a lengthy period of imprisonment in Hong Kong. They lie between December 1979 and 31st October 1983. The BMFL matter has remained in the Magistrate's Court for a very considerable time. It is not presently known for how long this will continue. It has been adjourned interminably. Mr Hamilton's contention is that, as the eight District Court charges are bribery charges and a large number of the BMFL charges are also bribery charges, if the applicant were to be tried in the District Court, with the glare of publicity attached to such a trial, this would have a highly prejudicial effect on any jury which might be asked to try him in the High Court. This extra prejudice, for it is accepted that prejudice already exists, might tip the balance between conviction and acquittal. He contends that this additional and inevitable prejudice is both unnecessary and avoidable and should be so avoided. It would have been a simple matter he suggests, and without causing difficulty, to have the District Court charges wait, by whatever means used, the conclusion of the BMFL trial. The time difficulty of course is that the BMFL matter has not even got to the committal stage, far less indictment.

79. It must be remembered over all that, in considering judicial review, we are not concerned, nor should we be, with the merits of the matter. We are and must be concerned with the manner in which the decision. of the District Court was reached. Further, and this is no doubt why Mr Hamilton, who with Mr Merry has appeared for the applicant throughout, has put himself as high as that which has come to be known as "Wednesbury" unreasonableness, this court is always reluctant, unless very sound grounds can be shown, to interfere with the exercise of his discretion by a judge.

80. On the morning of the fourth day of the hearing - Mr Corrigan, who with Mr G Harris and Mr S Li appears for the Attorney General, had almost concluded his submissions - there came to the notice of this Court the decision of another division, delivered on 3rd October, in the AG v Alick Au Shui Yuen (Civil Appeal 149 of 1991). We thought it proper to immediately draw this to the attention of counsel and, as copies of the judgment were not then available, we adjourned this hearing until Tuesday, 8th October, to permit counsel to consider their position and to make whatever submissions they thought fit on the issue of jurisdiction which had then arisen.

81. In essence Alick Au departed from the decision in In re an application for judicial review by a firm of solicitors (1990) 2 HKLR 146 - "In Re a firm of solicitors" in which it had been held that-

"an application for judicial review claiming civil relief, under s 21K of the Supreme Court Ordinance is civil and not criminal in nature even where, as here, the subject matter of the application is a search warrant issued in connection with a criminal investigation."

And it was further held, obiter, that:

"there is a very strong ground for saying that all applications for judicial review are civil in nature."

It avoided the apparent restrictions placed on this Court in the exercise of its appellate jurisdiction by the provision of s 13 of the Supreme Court Ordinance Cap 4. Those material read:

82. Section 63 the District Court Ordinance Cap 336 comes within Part IV of that Ordinance dealing with its civil jurisdiction and procedure, s 84 comes within Part V of that Ordinance dealing with its criminal jurisdiction and relates to appeals in criminal matters. All criminal appeals from the District Court are, under the provisions of s 83 of the relevant Ordinance, subject to the provisions of s 80 to 83Y contained in Part IV of the Criminal Procedure Ordinance.

83. The court in Alick Au was faced with an appeal purportedly brought within its civil jurisdiction and which questioned the validity of an order made by a High Court judge in criminal proceedings. The judgment made reference to that series of cases starting with Ex Parte Alice Woodhall [1888] 20 QBD 832 running on to Amand v the Home Secretary and the Minister of Defence of the Royal Netherlands Government [1943] AC 147- both of which cases incidentally dealt with habeas corpus and concluding with R v Central Criminal Court, Ex Parte Randle v Pottle (1991) 92 Cr App Rep 323. It also made reference to, and eventually relied upon, the decision of the Privy Council, the Government of the United States of America v Frederick Nigel Bowe [1990] 1 AC 500. The test which the Judicial Committee found as to what was a criminal cause or matter - in contra distention in Hong Kong to "any civil cause or matter" - first emerged in the speech of Lord Wrignt in Amand and Alick Au placed'emphasis upon the final paragraph of the United States v Bowe where Lord Lowry said at p 535, dealing with modern legislation:

"Ultimately the question for decision admits of, and demands, a simple answer. The certiorari and prohibition proceedings constituted a criminal cause or matter, as would a habeas corpus application if the subject matter were criminal in the sense described in Amand v Home Secretary and the Minister of defence in the Royal Netherlands Government [1943] AC 147."

84. Alick Au reviewed the decision in in Re a firm of solicitors and considered that there the court had promulgated a different test on the basis of:

"Taking the view that the English authorities establish no general principle but were merely concerned to construe English legislation of the 19th century which is different from that pertaining in this jurisdiction." (p 5)

This comes from the view the court took of those passages at p 150 and 151 of In Re a Solicitor which contain the ratio of that decision.

85. Alick Au went on at p 6:   

"With respect to the other division of this court, we find ourselves unable to pursue the course suggested In Re an Application for Judicial Review by a firm of Solicitors by reason of the decision of the Privy Council in Government of the United States of America v Federal Nigel Bowe."

86. It is Mr Hamilton's submission, and Mr Corrigan for the Attorney General has adopted it, that the decision on the jurisdictional issue in Alick Au was obiter, can be distinguished from this instant case, was per incuriam and, to put no fine point upon it, was wrong.

87. It is his main contention that, as was indicated in In Re a firm of Solicitors, matters of judicial review whatever their root may be, by virtue of the regimen of the legislation in Hong Kong - and with particular reference to sections 21I, 21J and 21K of the Supreme Court Ordinance Cap 4 and to Rules of the Supreme Court - are brought in a civil cause or matter.

88. Mr Hamilton's attack on Alick Au as being first obiter and second distinguishable is on the basis that the court in Alick Au did not have before it matters relating to judicial review. It was per incuriam because the court was not seen to deal with the consideration of the legislation in Hong Kong as given to it by Hunter JA in In Re a firm of solicitors. If his contention that all matters of judicial review in Hong Kong are civil in nature whatever their fount is right then, he submits, Alick Au must be wrong.

89. He has brought us through the legislation in England and contrasted that with the legislative structure in Hong Kong. It is necessary for us to take the same course.

90. At the outset it is clear beyond peradventure that the proceedings before Judge Cameron were criminal and the orders he made were not collateral orders. For myself I have no doubt that they directly affected a trial which, if carried to its ultimate conclusion, could result in the conviction of the applicant and in a sentence upon him of some punishment such as imprisonment or a fine.

91. I now turn to the separate legislative schemes in England and Hong Kong.

92. Generally, prerogative writs were writs associated with the name of the King. The best known of them are. habeas corpus, certiorari, prohibition and mandamus. They issue from the Court of Kong's Bench They are not writs of course. Proper cause must be shown to the satisfaction of the court why they should issue and the court has a discretion.

93. King's Bench was at one time in reality the coram rege ipso but has, for many centuries now, been that only in theory. The Administration of Justice (Miscellaneous Provisions) Act 1938 replaced the writs, apart from habeas corpus, by prerogative orders of the same name. This was an attempt at simplification of procedure. Under the provisions of s 12 of the Supreme Court Ordinance cap 4 the civil jurisdiction of the High Court consists of the original jurisdiction and authority of a like nature and extent as that held and exercised by the Chancery, Family and Queen's Bench Division of the High Court of Justice in England. In its jurisdiction the High Court in Hong Kong has all the powers which were originally vested in the Court of King's Bench - or Queen's Bench.

94. In England all indictments are now brought in the Crown Court, whether that court is presided over by a High Court judge or not. Section 12(3) (a) of the Supreme Court Ordinance states that the jurisdiction of the High Court shall consist of original jurisdiction of a like nature and extent to that held and exercised in criminal matters by the High Court of Justice and the Crown Court in England. In Hong Kong all indictments are brought in the High Court. When criminal trials take place in the District Court, a charge is preferred. But, under the provisions of s 83 of the District Court Ordinance, which, as earlier indicated, applies sections 80 to 83Y inclusive of the Criminal Procedure Ordinance to criminal appeals from that Court, any reference to "indictment" in those sections of the Criminal Procedure Ordinance" shall he understood to refer to a "charge sheet". Trials on indictment are before a judge and jury and trials and charges in the District Court are before a judge alone. In 1977 in England the former prerogative remedies were replaced by a new and comprehensive public law remedy of "judicial review". The former Order 53 was replaced in that year by the presently existing order. This again was a procedural measure. Statutory recognition of this new procedure was given effect to by s 31 of the Supreme Court Act, 1981.

95. In England there is a distinction as between the Court of Appeal: Civil Division sitting to hear appeals on civil matters and the court - the Court of Appeal : Criminal Division - sitting to hear appeals in criminal matters. In Hong Kong there is no such distinction in that the Court of Appeal sits generally and not in Divisions but, under the Provisions of s 13 of the Supreme Court Ordinance, it has two jurisdictions, the civil and the criminal.

96. Section 29(3) of the Supreme Court Act of 1981 states:

"In relation to the jurisdiction of the Crown Court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the. High Court possesses in relation to the jurisdiction of an inferior court." (Emphasis supplied)

Section 18(1) of the Supreme Court Act of 1981 provides that, except as provided for by the Administration of Justice Act 1960, no appeal shall lie to the Court of Appeal: Civil Division from any judgment of the High Court in any criminal cause or matter. The reference to the Administration of Justice Act of 1960 relates to the right of appeal against conviction or sentence for contempt to court.

97. Provision is of course made for appeals by a convict whether against conviction or sentence or both and to the Court of Appeal: Criminal Division. The meaning of the phrase "criminal cause or matter" led to a discussion starting with Woodhall and ending with Carr and Atkins - I am not to be taken as ignoring the decision in R v Central Criminal Court, ex parte Randle and Pottle [1991] 92 Cr App Rep 323 a case cited, but without comment, in Alick Au nor the subsequent decision of the Queen's Bench Divisional Court in R.v Norwich Crown Court ex parte Belsham (unreported). I shall come back to those decisions later. This debate is in the context of the emphasised phrase in s 29(3) of the 1981 Act.

98. In England applications for leave in criminal cases for judicial review can, if refused by a single judge, be renewed to a Divisional Court. Where leave has been granted in criminal matters then the substantive application must be made to the Divisional Court of the Queen's Bench Division. Any appeal from that court lies direct to the House of Lords and not to the Court of Appeal: Criminal Division. In civil cases a refusal of leave, either by a single judge or by the Divisional Court, can be renewed to the Court of Appeal: Civil Division. The avenue of appeal from the substantive decision is to the Court of Appeal: Civil Division.

99. In Hong Kong Order 53 also came into being - in 1979 - before the enactment of the legislation - in 1987 - relating to the regulation of orders of mandamus, prohibition and certiorari [Ordinance 52 of 1987]. The Hong Kong legislation followed generally, but not identically, the provisions of the Supreme Court Act, 1981. Section 21I in its subsection (1) provides:

"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) Ordinace 1987."

and subsection (3) of that section reads:

"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 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."

100. Section 21J and section 21K provide as follows:

(2)          An application for a declaration or an injunction (not being an injunction 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-

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

101. 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.

102. 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."

103. 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.

104. 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."

105. 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.

106. In considering what is a "criminal cause or matter" I am content to accept the definition of Lord Wright in Amand, reinforced as it is by the decision of the PrivyCouncil in the United States of America v Bowe. As I have earlier indicated I have no doubt at all that this applies to the proceedings before Judge Cameron. By no stretch of the imagination can they be "in any civil cause or matter."

107. In exparte Randle and Pottle the Divisional Court of the Queen's Bench was considering the phrase "other than its jurisdiction in matters relating to trial on indictment".

108. Randle and Pottle were charged with aiding the prison escape of a traitor; with conspiring together and with another to harbour the traitor after his escape; and with conspiring to prevent his being taken into custody. When they appeared to answer to the indictment, submissions were made that the proceedings were an abuse of the process of the court and should be stayed. The Crown resisted the application and the judge refused it. Randle and Pottle sought judicial review, seeking to quash that decision and to prohibit a trial on indictment. It was contended on their behalf that the court had jurisdiction under the provisions of s 29(3) of the Supreme Court Act of 1981 to review the decision of a judge sitting in the Crown court in criminal proceedings. In refusing the issue of certiorari and prohibition the two man court [Watkins LJ and Hutchison J] held that the Divisional Court had the jurisdiction contended for. They took the view that the decision did not affect the conduct of the trial being concerned with whether they should ever be a trial and, further, the judge's decision was intended to be a final order - notwithstanding that there could be circumstances in which a stay might be revoked or lifted.

109. The Divisional Court had been addressed at length on the issue of jurisdiction. In the course pf his judgment, Watkins LJ at p 337 considered the comments of Lord Bridge in In re Smalley (1985) AC 622 at 644F, who in  turn was commenting on that which was said in Smith (Martin) (1975) QB 531.

110. In Smith (Martin) the Court of Appeal was considering an appeal by solicitors who had appeared for a defendant and who had been ordered by the Crown court judge to pay personally costs thrown away by an adjournment. The Court of Appeal, having held that it had jurisdiction to entertain the appeal, also expressed opinions on the question whether the solicitors would have had a remedy by way of certioraril. Megaw LJ said:

"I am by no ways convinced that an order made by the Crown Court against a solicitor, in the exercise of its inherent disciplinary jurisdiction over an officer of the court (if that be the true nature of the order) is properly to be described as an order 'relating to trial on indictment,' ... The appeal is and should be entitled as, an appeal by the solicitors concerned."

Lord Denning, MR and Sir Erie Sachs expressed the unequivocal view that the solicitors would not have had such a remedy.

111. In Smalley Lord Bridge said this:

"Finally, as regards the solicitor who is ordered to pay personally the costs thrown away by the adjournment of a trial on indictment, it would again be inappropriate to express a concluded view. But, for my part, having considered the obiter dicta in the passages I have cited above from R v Smith (Martin) [1975] QB 531, I much prefer the doubts of Megaw LJ to the confident assertions of Lord Denning MR and Sir Eric Sachs."

112. But it must be remembered that the House of Lords there had held:

"that the words of exception in s 29(3) of the Supreme Court Act 1981 manifestly excluded appeal or judicial review in respect of the verdict given or sentence passed at the conclusion of a trial or indictment, and also 'the trial' of a defendant who pleaded guilty on arraignment; that adopting a purposive approach and without attempting a definition of the words, the test to be applied in determining whether an order of the Crown court fell within them, was whether the decision was one affecting the conduct of a trial on indictment given in the course of the trial or by way of pre-trial directions".

113. Also Lord Bridge having said that, beyond that which is encapsulated in the headnote, it was difficult to discern a sensible legislative purpose in excluding appeal or judicial review of any decision affecting the conduct of a trial oh indictment, whether given in the course of the trial or byway of pre-trial directions, went on at p 643D:

"If, therefore, the phrase relating to trial on indictment may be construed broadly or narrowly, a purposive approach points, to my mind, unmistakably to a construction sufficiently narrow, at all events, to avoid the exclusion of judicial review in such a case as this".

114. "This" was of course the estreating of the recognizance of a surety.

115. Watxins LJ then commented in ex parte, Randle and Pottle at p 337:

"If approaching the matter in the way Lord Bridge indicates is appropriate, we are inclined to the view that a decision on an application to stay on grounds of abuse of process does not affect the conduct of a trial on indictment because what is being determined is whether there should ever be a trial. Such a conclusion is, however, only permissible if the decision in ex parte Raymond [Central Criminal Court, Ex Parte Raymond (1986) 1 WLR 710] can be distinguished, and we are disposed to think that it can, on a basis already indicate: namely that a stay on grounds of abuse of process contemplates that there never will be a trial whereas an order that an indictment lie on the file marked not to be proceeded with without leave contemplates that there may be. It matters not that there could be, so it was suggested by Mr Bevan [who appeared for the Crown, circumstances in which a stay on grounds of abuse process might be revoked or lifted: the crucial point is that such a stay - a direction that there shall be no trial - is intended to be final. It is on this basis in the course of the trial we indicated that we had jurisdiction. Further consideration has not changed our view; though it would be apparent from the language we have used earlier in our judgment that we recognise that the arguments on each side are such that it is dificult to feel complete confidence in the conclusion at which we have arrived. Thus we take comfort in the knowledge that this important issue will very soon fall to be considered by a full court of three judges."

116. That full court - a Queen's Bench Divisional Court - which considered ex parte, Randle and Pottle was, as I have indicated, Ex parte Belsham heard on Friday, 8th March 1991 and of which we have a transcript CCO/1296/90. That court consisted of Watkins LJ, Farquharson and Tudor Evans JJ. The applicant, Belsham, was awaiting trial at Norwich Crown Court upon an indictment which charged him with fraudulent trading and 12 counts of the theft of cheques. He applied for a stay of the indictment on the footing that the trial would be, because of delay, an abuse of the court's process. That application was rejected. The applicant then sought a judicial review of the judge's decision He was given leave and the substantive application was heard by the Divisional Court. He sought certiorari to quash the judge's decision and prohibition of his trial on indictment.

117. The first issue raised on the application was whether the Divisional Court, in the exercise of its supervisory jurisdiction, had power to review this type of decision by a judge sitting in the Crown court. The phrase:

"other than its jurisdiction in matters relating to trial on indictment"

fell again for consideration. The Divisional Court reviewed the many cases in which this phrase has been'juridically examined. It found attractive the argument that the word "proceedings", which appears in s 46(1) of the 1981 Act "all proceedings on indictment shall be brought before the Crown Court", cannot simply be equated with the conduct of trial and that it must have a wider ambit, that is to all the decisions of the Crown court once it commences to exercise its jurisdiction which begins as soon as the indictment is signed. But they rejected that argument as they did not consider it open to them to construe in the way counsel sought in the light of the disapproval expressed by Lord Bridge in in Re smaller of the same form of construction advanced by Shaw LJ in R v Sheffield Crown Court, Ex Parte Brownlow [1980] 1 QB 530: that was "that the closeness or remoteness of the relationship of the decision in question to the jurisdiction to try cases on indictment is wholly irrelevant" They thought counsel's argument to be putting the disapproved phrase of Shaw LJ in another guise.

118. The Divisional Court then went on to consider ex parte, Randle and Pottle and endorsed the distinction there made between a motion to quash an indictment and an application to stay an indictment for abuse of process They thought a motion to quash, which is made to ensure that a defendant is tried on properly framed indictment, to be, inseparable from the conduct of the trial while an application for a stay, designed to stop the trial taking place, on grounds unrelated to the indictment and to the conduct of a trial, was not. Watkins LJ at p 16 of the transcript in delivering the judgment of the Divisional Court said:

The judgment then went on to hold that Randle and and Pottle was rightly decided They entertained jurisdiction

119. In my judgment that case can be distinguished from the instant case, and from the decision in Alick Au, in that the statutory provisions which were being considered were totally different from those which lie for our consideration. Secondly, and with great respect, I would have thought that the argument that stopping trial from proceeding altogether by granting a stay was so directly concerned with "a trial upon indictment" that I find it difficult to accept the very fine reasoning of Watkins LJ to the contrary.

120. The attack mounted on Alick Au on the per incuriam basis was, as I have indicated, because it is said that the court there was not seen to have fully considered sections 21I, 21J and 21K of the Supreme Court Ordinance Cap 4 or the reasoning of Hunter JA in In Re a Solicitor. Furthermore, it is suggested that two relevant decisions within this jurisdiction were not drawn to the court's attention.

121. The first of those was In re an application by the Attorney General for orders of certiorari and mandamus [1972] HKLR 336. The Crown had applied for orders of` certiorari and mandamus in respect of a ruling by a magistrate that the charge before the court was bad for duplicity and that the proceedings were a nullity. The issue before the court was whether it should exercise jurisdiction and grant the orders sought and, if it did, could the order for mandamus properly include a direction to the magistrate to permit the substitution of three separate charges for the single charge originally laid. The trial had been a summary trial of an indictable offence.

122. At p 338 Huggins J (as he then was), in delivering the judgment of the Full Court, YcMullin J (as he then was) being the other member, said this:

"Yesterday we had to deal with the preliminary matter about which we also heard at a very full argument. We decided that in the exercise of the supervisory jurisdiction which this court has over inferior court the court is sitting in its civil jurisdiction and not in its criminal jurisdiction and we gave reasons at length, holding that it was not necessary that there should be personal service upon the respondents and that service upon the solicitors was sufficient ."

Unfortunately, the reasons for that decision were not reported and, despite diligent searches in the archives of these courts, are not available.

123. The other authority was the Queen v Wong Hing Yuk [1989] 1 HKLR 251. There the Court of Appeal, sitting in its criminal jurisdiction, was considering an appeal against the trial judge's refusal of an application for costs made by a person who was acquitted of the offence of possession of dangerous drugs. The sole question was whether the court had jurisdiction to hear such an appeal. Having considered Amand, Carr and Atkins, Day and Grant and two Hong Kong cases R v Li Chiu Chu [1986] HKLR 381 and Mak Yuet Hang v R Cr App No 399 of 1987 (unreported), the court held that the judge's order in refusing the appellant's costs was so inextricably connected with the trial that it was plainly an integral pert of the criminal proceedings. Being an order in a criminal cause or matter the appellate court had no inherent jurisdiction to hear and determine the appeal. Any right of appeal had to be founded on statute and since there was no such provision the court did not have jurisdiction. That Court refused to follow either Li Chiu Chu or Mak Yuet Hang. In Mak Yuet Hang the Crown did not oppose the appeal and in neither of the two cases was jurisdiction raised, argued or decided. Both decisions were held to be per incuriam.

124. With respect to Mr Hamilton I do not think the citation of either of those authorities would have been of assistance to the court in Alick Au. Though I appreciate that his reason for citing In re an application by the Attorney General was to suggest to us that it has always been the position in Hong Kong that this Court will exercise its supervisory jurisdiction, whatever the origin of the proceedings, and that that is the position today.

125. Alick Au did, with respect, consider the reasoning of Hunter JA in In Re a Solicitor for in the judgment of the court delivered by Cons V-P, there appears this passage at p 5 which I have partially quoted earlier:

"In April last year in in re an application for judicial review by a firm of Solicitors [1990] 2 HKLR 146 another divisional of this court promulgated a different test [that is different from the test in Amand], taking the view that the English authorities establish no general principle but were merely concerned to construe English legislation of the 19th century which is different   from that pertaining in this jurisdiction. The question in this jurisdiction 'should be answered by considering the nature of the cause, and of the relief sought and granted.' In so doing the court came to the conclusion that all applications for judicial review, even from decisions themselves in a criminal cause, were in a civil cause or matter and subject to appeal to this court."

126. As has been indicated Alick Au doubted that decision relying on the Government of the United States ofAmerica v Bowe and in particular the final paragraph of the judgment delivered by Lord Lowery as earlier set out.

127. It is necessary therefore to consider what the nature legislation under, review in the United States v Bowe was. Before doing so I would set out the somewhat complicated nature of the proceedings before the Judicial Committee and which I take from the report itself.

"Appeals (Nos 7 and 25 of 1988), with special leave, by the Government of the United States of America from an order of the Court of Appeal of the Commonwealth of the Bahamas (Luckoo P, Henry and Smith JJA) made on 24th February 1987 whereby, inter alia, the government was ordered to pay the costs of the appeal by the fugitive, Frederick Nigel Bowe, which was allowed from the order of Gonsalves-Sabola J in the Supreme  Court (Common Law Side) on 8th July 1986 striking out the fugitive's motion for an order of certiorari to quash   the warrant for his arrest issued by the magistrate, the proceedings and the magistrate's ruling on 19th June 1986 that the fugitive had a case to answer;  with leave of the Court of Appeal by the government from the judgment of the Court of Appeal (Henry P and Melville JA, Smith JA dissenting) on 29th February 1988 allowing with  costs to the fugitive his appeal from the order of Adams J in the Supreme Court (Common Law Side) on 31st   August 1987 and quashing the warrant of arrest issued by the magistrate on 20th March 1987 and the proceedings following the issue of that warrant; and appeal with special leave by the fugitive from the unanimous dismissal by the Court of Appeal on 29th February 1988 of his appeal from the order of Adams J in the Supreme Court   (Civil Side) on 19th October 1987 refusing his applications for orders of certiorari and prohibition to quash the warrant for his arrest issued by the magistrate on 12th June 1987 and to quash and prohibit the proceedings following the issue of that warrant."

For our purposes it is only necessary to consider that which was termed in the course of the judgment "the costs appeal". There had been proceedings in the magistrate's court interrupted in order that the fugitive - for this basically concerned extradition proceedings - might apply to the Supreme Court for orders of certiorari and prohibition. The United States Government had made a submission that the costs orders, made by the Supreme Court on the fugitive's applications for certiorari and prohibition pursuant to the Bahamian Rules of the Supreme Court Order 53, were, relying on Part IV of the Court of Appeal Act, in fact made in the exercise of the "revisional jurisdiction of the Supreme Court in a criminal cause or matter, within the meaning of s 17 (1) of the Court of Appeal Act in the Bahamas, and therefore were improperly made. That section reads:

"Any person aggrieved by any judgment, order or sentence given or made by the Supreme Court in its appellate or revisional jurisdiction, where such judgment, order or sentence has been given or made upon appeal or revision from a magistrate or any other court, board, committee or authority exercising judicial powers, and whether or not the proceedings are civil or criminal in nature may subject to the provisions of the Constitution and of this Act, may appeal to the court on any ground of appeal which involves a point of law alone but not upon any question of fact, nor of mixed fact and law nor against sentence: Provided that no such appeal shall be heard by the court unless a judge of the Supreme Court or of the court shall certify that the point of law is one of general public importance."

The provisions as to costs are contained in 23 of the Court of Appeal Act and read:

"No costs shall be allowed by the court on either side in connection with the hearing and determination of an appeal in any criminal cause or matter under Parts IV or V of this Act."

The fugitive had submitted that the proceedings before the Supreme Court did not involve an exercise of "revisional jurisdiction" but were proceedings in respect of constitutional rights in which the Supreme Court had original jurisdiction pursuant to Article 28 of the Constitution of the Bahamas and from which an appeal lay as a right to the Court of Appeal under Article 104. In such an appeal the Court of Appeal has an unfettered discretion as to costs.

128. The Judicial Committee had no hesitation - having, in a necessarily difficult judgment, dealt with all the various legislative and constitutional issues which arose - in holding that the proceedings before them, entitled as they were in a civil matter which entitlement was, of itself, irrelevant, were matters in a criminal cause or matter. They had no doubt that certiorari and prohibition in these circumstances emerged from a criminal cause or matter and because of that s 23 prohibited the award of costs to either side.

129. I have in deference to the submissions of Mr Hamilton, adopted as they were by Mr Corrigan, dealt in some detail with the criminal versus civil nature argument. But we are not here considering the propriety of the use of the judicial review procedure in a case such as this - though for myself I consider that matters of abuse of process should remain part of the appellate procedure as it did in R v Harris [1991] 1 HKLR 389 and, in England, in R v Buzaler and Schiffer (unreported: Transcript 89/5147/S). What we are considering is, in the light of the expression in s 13 of the Supreme Court Ordinance "in any civil cause or matter", whether the legislation has conferred on this Court appellate jurisdiction in cricumstances such as here. We are a creature of Statute and we are bound within the confines of the appropriate legislation. While I am doubtful of the propriety of the use of judicial review in this type of case - which as I have"indicated is not the point - I have no doubt at all that this Court, when the root is criminal, cannot have conferred upon it, by that root growing in some transmuted fashion a civil tree, an appellate jurisdiction which, in my judgment, the terms of the legislation does not permit. I do not consider that Alick Au was per incuriam, for it fully considered the ratio of In re a Solicitor. Nor do I think that which it said was obiter. The provisions of s l3 were the very basis for the reason why the court declined jurisdiction. I accept that Alick Au was a purported direct appeal by the Attorney General from orders made by a High Court judge in the course of criminal proceedings: in contra - distinction to the judicial review sought here from the orders of a District Court judge in criminal proceedings. But in my view that does not affect the issue While the whole scheme of the judicial review sections of the Supreme Court Ordinance is couched in terms of civil proceedings I do not accept that that it is right to ignore the nature of the cause from which those applications spring. The fact that these proceedings before us are entitled "civil" is in my view irrelevant.

130. Given that Mr Corrigan has adopted Mr Hamilton's submissions and fully supports them I find myself in the unfortunate, but firmly held, position in adverserial proceedings of having to say "a plague o' both your houses" - though I do not think that they have made "worms meat of me". I would decline appellate jurisdiction.

131. In case I be wrong I go on to consider the appeal proper. This includes, as well as the methods of Judge Cameron in coming to the orders he made, the upholding of his orders by Barnett J in judicial review proceedings, brought with leave, seeking to have them set aside.

132. It is Mr Hamilton's main contention that Judge Cameron misplaced the burden of proof, took into consideration matters he should not and failed to consider matters he should and that his whole decision was coloured by his error in apparently accepting that the BMFL charges would never come to trial. He further contends that Barnett J, in upnolding the decision of Judge Cameron in the way he did, also fell into error. As indicated earlier he further advanced the argument that the decision of Judge Cameron, in any event, was wholly wrong and fell within the "Wednesbury" unreasonable principles.

133. "Wednesbury" is a shorthand reference to Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223. While the Court of Appeal there had for consideration the exercise of an executive act by a licensing authority, that which was said by Lord Green MR, delivering the judgment of the court, has come to have a much wider application. On the use of the word "unreasonable" in a "comprehensive sense" Lord Green had this to say at p 229:

"It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to that which he has to consider If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'."

134. For myself I accept that which Lord Green said there as being, generally, the criterion used by this Court in considering whether it should upset a discretion exercised by a   judgee, a acourse it will not take lightly.

135. Lord Green went on:

"Similarly, there may be something so absurd that no sensible person would ever dream that it lay within the powers of the authority Warrington LJ in Short v Pool Corporation [1926] Ch 66 gave the example of the red haired teacher, dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one and other."

And it is from this portion of the judgment that the "Wednesbury unreasonable" comes.

136. I would not accept that the decision of the judge here fell, although his method of reaching that decision is open for our consideration, into the realms of the absurd. It was a decision that a judge, properly directing himself, could have come to. Not one which no judge could have possibly come to.

137. But that having been said, I go on to consider whether the manner of the exercise of his discretion by Judge Cameron was such that it would entitle this Court to find that he erred in coming to the conclusions he did. There was presumptive delay abuse in the Barclay Asia charges It was for the Crown to justify those charges being brought. But the tenor of Judge Cameron's judgment has all the appearance, although I accept that he was also considering the overlay of prejudice which must be established by the person seeking the stay, of requiring the applicant to justify his complaints as to delay abuse.

138. He was clearly influenced by the submissions made by Mi Corrigan, which while they did not postitively say that the BMFL charges would never come to trial - it is quite clear that that submissian was hot open in the face of the Attorney General's stated determination that a trial of some nature should take place - did, by the phraseology he used, give an indication that that possibility was too remote to be something which the trial judge should bear in mind in considering the stay applications. Mr Hamilton has drawn our attention to a number of passages in the submissions of Mr Corrigan which could clearly be interpreted in this way.

139. It is Mr Corrigan's main submission before us, as it was before Judge Cameron and Barnett J, that, in dealing with the charges before him, Judge Cameron could make orders affecting only those charges in his court and protect only his court against abuse. I agree that any orders made by Judge Cameron could only affect the Barclay and the Westlb charges. But that is not to say that the judge would have been entitled to ignore completely what, if any, effect the hearing of those charges might have on the BMPL matter. I equally accept that it will be for the BMFL trial judge, who undoubtedly will be faced with similar submissions, to make his own ruling within the confines of that case when the time comes. But, that does not mean that, if it were shown to Judge Cameron that there would be such serious prejudice as to raise the probability - and not merely the possibility -that the trial of the BMFL charges would be rendered unfair by reason of the hearing of the Barclay Asia and Westlb charges by him, that he should ignore this.

140. It is for that form of prejudice that Mr Hamilton contends, prejudice which he emphasises can be so easily avoided. It must be borne in mind, given that which we have been told of the possible length of the BMFL trial - exceeding in time and complexity the Carrian trial - when the BMFL trial eventually finishes, were the Barclay Asia and Westlb charges to be now stayed, it is highly unlikely that they would ever come to trial. The District Court charge are certainly serious charges but they are not as grave nor widespread as are the intended charges in BMFL.

141. With respect to Judge Cameron, I do not think the method of the exercise of his discretion was proper. He approached, understandably to an extent, the matter from the wrong prospective. It is accepted that he took into consideration matters he should not. He placed a burden on the applicant when he should not have had to bear. He clearly took the view that it was unlikely that the BMFL charges would ever come to trial.

142. One of the main reasons on which Barnett J founded his upholding of the decision in the District Court, leaving aside the burden of proof, was that if, and this is what he thought that Judge Cameron was actually doing, Judge Cameron had dismissed the application in limine then that decision would have been unassailable. This appears to me to be accepting, the contentions of Mr Corrigan that Judge Cameron should have adopted a blinkered approach. As I have indicated this is a ;submission with which I do not agree. Consequentially I find, with great respect, the reasoning of Barnett J to be flawed. This Court is therefore in a position now to consider the matter afresh and to exercise its own discretion as it sees fit.

143. I accept that there is a power to stay on the basis of delay abuse or of prejudice but, as was said by this Court in R and Harris [1991] 1 HKLR 389 at 397, while a court is entitled to safeguard its process from abuse:

"... it is a grave and serious matter for a Court to refuse jurisdiction."

144. In Jago v the District Court of New South Wales and others (1989) 87 ALR 577 the High Court of Australia was considering similar applications. In a judgment delivered by Mason CJ the long line of authorities - running through Connelly and the Director of Public Prosecutions [1964] AC 1254; the Director of Public Prosecutions and Humphrys [1977] AC 1; R v Darby Crown Court ex parte Brooks (1985) 80 Cr App Rep 164; and authorities in both Australia and in Canada - were referred to and commented on. At p 581 Mason CJ cited from the judgment of Richardson J in the New Zealand Court of Appeal in Moevao v Department of Labour (1981) NZLR 464 where that judge had said at p 481:

"It is not the purpose of the criminal law to punish the guilty at all costs It is not that that end may justify whatever means may have been adopted There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the court is protecting its ability to function as a court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the court processes may lend themselves to oppression and injustice."

Of this passage Mason CJ said:

"In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and processes preceding them are conducted fairly and, secondly, that so far as possible persons charged with criminal offences are both tried and tried without unreasonable delay In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminay trial should proceed.

For the reasons given, I agree with the approach of Richardson J as have expained it. Bearing in mind his Honour's relatively broad view of what may amount to an abuse of process, i agree also with his explanation of the rationale for the exercise of the power to stay a Prosecution."

145. That rationale was that a court is obliged to take the extreme step, of stopping a prosecution in order to protect its own processes from abuse and to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law.

146. I would respectfully adopt that which was said by Mason CJ and his comments on the judgment delivered by Richardson J. Continuation of a process which would culminate in an unfair trial can be seen as a misuse of the court's process and which would constitute an abuse of that process because the public interest in the holding of a trial does not warrant the holding of an unfair trial.

147. The headnote in Jago at p 577 reads, in part,:

"The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's rights to be protected against unfairness in the course of criminal proceedings include the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and the prejudice suffered by the accused."

and see also Bell v DPP [1985] AC 937.

148. While that applied to the issue of a permanent stay, I think it also applies to the form of stay being asked for generally here, leaving aside the specific delay abuse in the Barclay Asia charges, in respect of both of the charges.

149. Before going on to deal with the delay abuse on the Barclay Asia charges I would first consider generally the probable prejudice which might arise from both of these charges being tried prior to any trial of BMFL. In both cases the Persons who were stated to have accepted the bribes alleged to have been offered by the applicant have been convicted and in the full light of public knowledge. Indeed the spotlight was turned to a large extent on the Barclay Asia charges when the Attorney General sought a review of the original sentence imposed upon Turner. Whiles all this was some little time ago nevertheless prejudice from this and other matters is conceded by the Crown to exist. Some further prejudice from the trial of the applicant himself, should he be convicted or even by virtue of that very trial, may well be engendered.

150. I am not, however, as matters stand before us, prepared to accept that such prejudice could not be eradicated from the minds of a jury by a careful and full direction given by the eventual trial judge. Such additional prejudice certainly could be avoided by a stay adjournment of both of these charges until BMFL has concluded. But I do not think that it is right for a court, simply on the basis that whatever prejudice may be engendered could be avoided, to postpone trials indefinitely. It is right that the public interest and confidence in the administration of justice should be maintained by the bringing to trial as soon as practicable those accused of serious criminal offences. I do not assume that the applicant would be convicted; that would be quite wrong. While it is obvious that he does not desire to have matters finalised because of the possible effect on the BMFL matter which, as I have noted, also involves bribery charges, this should not, in my judgment, delay the hearing fixed for January 1992. While prejudice to the BMFL trial is rightly a matter to be taken into consideration nevertheless I do not think that it has been shown to us that that probable prejudice is of such a nature as to make a fair trial of the BMFL matter an impossibility. When the dust of the District Court trial has died down it will eventually be for the trial judge in BMFL to consider, at the time when that trial is set to commence, whatever prejudice, cumulative or individual, that there may then be. I would therefore refuse to grant any form of stay on the basis of prejudice in respect of the District Court charges.

151. The delay abuse application on Braclay Asia charges has substance The length of that delay is considerable. This application has to be viewed in isolation, as if the Barclay Asia charges were the only charges before the District Judge. It is accepted that the applicant himself was in no way responsible for any of the delay which has occurred. Further the health of the applicant is a matter which could properly concern the court. We have had medical reports, and these. are not contested by the Crown, placed before us showing that the applicant has had a heart attack, this in 1989, and had had a coronary angiogram performed in that year. That procedure revealed, without going into the details a serious heart condition. Angioplasty was advised. This was to compress an obstructive bulge in an artery. If successful it would have enabled the applicant to tolerate mild to moderate exertion without angina and, for the moment, reduce the chance of a second heart attack considerably. But, 25% of treated cases relapse within one year.

152. This operation has been carried out. Subsequent to it the applicant's condition deteriorated and, in March 1990, he had very little cardiac reserve, tolerating only very mild exercise or exertion. It was found that a significant portion of his heart is non-functional due to damage inflicted by the fast heart attack. That is not susceptible to either by-pass surgery or further angioplasty. In April 1990 he collapsed. In October 1990 his health deteriorated further. We are told that, when any trial relating to him commences, he would only be fit for attendance for half a day at the most.

153. I should indicate that the medical history which I have just recited is also a matter which I bore in mind in relation to the general application for a stay adjournment. The then state of the applicant's health undoubtedly will be a matter brought, together with up-to-date medical reports, to the attention of any trial judge concerned with criminal charges laid against him. I do not consider it such that trials of the applicant should be stayed.

154. The history of these charges is as follows: On 17th August 1983 the Independent Commission Against Corruption received certain information in relation to Turner. On 9th April 1987 a warrant was issued for his arrest. On 3rd November 1989 the applicant was charged with the bribing of Turner, mirror charges to those laid against Turner himself. The applicant had been originally arrested on 30th April 1983 so was under arrest at the time the information came to the Independent Commission. Turner was arrested in London an 8th June 1987. On 12th August 1988 he received sentence. Before that, on 23rd June 1988, the Attorney General, through Mr Sulan, gave what has come to be known as the "Sulan Assurance". This was to the effect that there would be no prosecution of the applicant on the Barclay Asia charges. In November 1988, in answer to representations made by those advising the applicant requesting, among other things, a deferment of the Westlb charges until after the BMFL trial, the Attorney General agreed to this deferment. In June 1989 the then acting Director of Prosecutions informed the applicant's legal advisers that the Westlb charges would be prosecuted as a matter of poriority. In July 1989 the solicitors were informed that consideration was being given to charging the applicant with the Barclay Asia charges. On 25th October 1989 -"a bolt from the blue" as Barnett J described it - the Attorney General wrote to the applicant's solicitors stating that it was proposed to charge him with the Barclay Asia charges and that these, together with the Westlb charges, would be heard in the District Court.

155. Certainly prejudice, in the sense that his expectations of not being charged were altered - the Attorney General having blown first cold and then hot - has been occasioned to the applicant. The actual offences are very old ones, going back to 1981 and 1982. But the issue is would the applicant be so prejudiced generally and in the particular as to make any trial on the Barclay Asia charges an unfair one by reason of the delay. Here, in my view, the issue is finely balanced. The sums involved have numerological significance in that they are "lucky" sums. But does not necessarily mean, and I accept Mr Hamilton's submissions on this aspect, that they can be easily called to mind by the applicant in mounting his defence, or easily considered against what must be by now the most horrendous mass of documents relating to the affairs of the applicant which has come under the scrutiny of the prosecution - and to which of course he would have to have access.

156. It is not, as I understand it, the intention of the Crown to call Turner in evidence. The intervention over the years of such matters as the Carrian trial itself and the possibility of a further conspiracy in relation to Gammon House sale - on which no evidence was offered in May 1988 - and the undoubted further delay, caused greatly by factors outside the control of the Attorney General, of the trial of the BMFL matter, have contributed to the very lengthy delay in bringing on the Barclay Asia charges for trial.

157. Bearing in mind, as indicated in Jago, that fairness to the accused is not the sole criterion nevertheless I think, in all the circumstances here, that "oppressive" seems to loom large in respect of these charges. I have given anxious consideration to the submissions advanced to us and to all the matters to which our attention has been drawn and I have drawn to mind, again, that which was said in Harris as to how grave and serious a step it is for a court to refuse jurisdiction. But, having done so, in my judgment, this is one of those rare cases where jurisdiction should be refused. I consider that the balance falls on the side of the issue of a permanent stay.

158. The orders I would have made, were it not for my finding on lack of jurisdiction, are that I would have refused the issue of certiorari and of prohibition as prayed for on the Westlb Charges; I would have granted certiorari, quashed the decision of Judge Cameron and prohibited the continued hearings of the Barclay Asia charges. But in the event, I dismiss this appeal for want of jurisdiction.

Bewley, J. :

159. Despite the civil framework of the judicial review legislation in Hong Kong, the cited dictum of Lord Lowry in Government of the United States of America v. Frederick Nigel Bowe [1990] 1 AC 500 convinces me that the proper test in the present case is that laid down in Amand v. the Home Secretary and the Minister of Defence of the Royal Netherlands Government [1943] AC 147. It follows that the appeal does not arise out of a civil cause or matter and that this Court has no jurisdiction. I agree therefore that it must be dismissed on this ground.

160. As to the merits of the appeal, I agree with the Judgment of the chief justice concerning the Barclay Asia charges and have nothing to add.

161. It is conceded that the applicant will be prejudiced in the trial by Jury if it is Preceded by the Distriot Court case but Mr Corrioan submits on befhalf of the Attorney General that:-

162. It is trite to say that a judge has a duty to ensure Justice and fairness to a defendant appearing in his court. Many examples have been cited to us where stays or adjournments have been granted on this ground. See Connelly v. DPP [1964] AC 1254. Jago v. Distriot Court of N S W & others [1989] 87 ALR 577.

163. None of the cases cited concerned the postponement of a trial on account of its effect on a subsequent trial in another court in which the issues were different and which was unconnected with the first trial. On the other hand no case has been brought to our attention in which an application for a stay or adjournment in these circumstances has failed in limine.

164. For my part I believe the proper tribunal to deal with the question of prejudice is the judge at the second trial. He will have the whole situation before him. He can see the full extent of the prejudice. He can see whether any steps he may take to overcome it are likely to be effective. If the answer is no he possesses the ultimate power to order that the trial be stayed on grounds of unfairness.

165. The Crown, in proceeding with the first trial in such circumstances takes a risk that the second trial may not be effective. Where the second trial involves more serious charges - as here - it may be a matter requiring careful consideration. In my judgment however it is not a decision that falls to be taken by the District Judge. The charges are properly before him at the moment and he should proceed to hear them. The question of unfairness should be dealt with as and when it arises.

Representation:

Mr G. Hamilton, QC and Mr M Merry (Kwong & Lam) for Applicant

Mr A. Corrigan, QC and Mr G.A. Harris and Mr S. Lee (Clifford Chance) for 2nd Respondent