Wong She Wa v. Cheng Man Ngok and Others

HCMP000026/1997

1997 M.P. No. 26

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Keith in Court

Date of hearing: 11 April 1997

Date of delivery of judgment: 11 April 1997

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J U D G M E N T

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INTRODUCTION

1. This is an application for judicial review. It concerns various criminal cases in the District Court. They were consolidated and ordered to be tried with each other. Subsequently, that order was set aside. The question which this application raises is whether the order setting aside their consolidation should have been made.

THE FACTS

2. A total of five defendants were charged with a series of related offences. In due course, their cases were transferred to the District Court. They faced 44 charges in all. Those charges were contained in four separate charge sheets. One of the defendants is the Applicant in these proceedings. He faced all 44 charges. The other four defendants are the first four Respondents to these proceedings. They each figured in one of the four charge sheets. Thus, R1 and the Applicant faced charges in the first of the four charge sheets. R2 and the Applicant faced charges in the second of the four charge sheets. And so on.

3. The cases came before Judge Beeson on 2nd September 1996. On that occasion, counsel for three of the defendants - R1, R3 and R4 - applied for the four cases to which the four charge sheets related to be consolidated. His application was supported by counsel for the Applicant. Broadly speaking, they wanted one trial, and they argued that there was a sufficient nexus between the four cases to justify consolidation. Counsel for R2, however, opposed the application. Since R2 was involved in only one of the four cases, consolidation would result in his trial lasting much longer and his legal costs would be considerably greater. Counsel for the prosecution supported the application for consolidation, but took a neutral stance as to whether the case involving R2 should be consolidated with the other three. Judge Beeson ordered that all four cases be consolidated, and in due course a consolidated charge sheet was drawn up.

4. The trial was due to begin on 18th November. The trial judge was Judge Longley. On 13th November, counsel for R2 applied to Judge Longley to quash the order consolidating the four cases. Leading counsel for R1, R3 and R4 took the view that R2's counsel's submission was correct. Accordingly, despite the stance which had been taken on behalf of R1, R3 and R4 before Judge Beeson, and despite the personal wishes of R1, R3 and R4, their counsel supported the application. Counsel for the Applicant and counsel for the prosecution opposed it.

5. Judge Longley ruled on the application on 18th November. He assumed that Judge Beeson had purported to order consolidation pursuant to section 24B of the Criminal Procedure Ordinance (Cap. 221). For reasons which it is unnecessary for me to explain, Judge Longley took the view that the conditions for the application of section 24B had not been satisfied, and he ruled that Judge Beeson had not had jurisdiction to order the consolidation of the four cases. He therefore declared the order for consolidation to be a nullity, and he directed that the trial should proceed on the basis of the four original separate charge sheets. That is the decision which is being challenged in this proceedings.

6. However, it is necessary to bring matters up to date. On 21st November, R1, R3 and R4 pleaded guilty to some of the charges they faced. Those pleas were acceptable to the prosecution and to the Court. They remain on bail awaiting sentence. On 26th November, the trial of the Applicant and R2 commenced before Judge Longley. Since the charge sheet contained a charge of conspiracy and substantive charges, Judge Longley required the prosecution to elect which it wished to proceed on. The prosecution elected to proceed on the charge of conspiracy. The substantive charges were therefore ordered to remain on the file. On 30th January 1997, at the conclusion of the prosecution case, Judge Longley ruled that the Applicant did not have a case to answer. A verdict of not guilty was therefore recorded. On 24th February, at the conclusion of the trial, Judge Longley acquitted R2. The effect of these events is that all that remains is for R1, R3 and R4 to be sentenced on the charges to which they have pleaded guilty, and for the Applicant to be tried on the three remaining sets of charges which he faces.

7. It will not take long for anyone listening to this account of the proceedings so far to realise the irony in the position in which the parties have now found themselves. R2 is no longer concerned at all. R1, R3 and R4 are simply awaiting sentence. Only the Applicant faces a trial - and three trials at that. He has always wanted the cases consolidated, as has the prosecution, and yet he has to face separate trials because that is what at one stage or another all the other defendants wanted.

THE COURSES OPEN TO THE APPLICANT

8. What the Applicant wishes to achieve by these proceedings is the consolidation of the three remaining cases. That can be achieved if Judge Longley's order is quashed. But in view of the events which have occurred since Judge Longley's order, there is said to be a considerable down-side for the Applicant if Judge Longley's order is quashed, and in any event it is said that the Applicant can achieve what he wants by an alternative and simpler route.

9. The down-side is said by the prosecution to be that if Judge Longley's order is quashed, the trial of the Applicant and R2 was a nullity. He and R2 would have to be tried again. The plea of autrefois acquit would not be available to him, because if the trial was a nullity his acquittal in law would have been of no effect. A new trial of the allegations against the Applicant and R2 would be in no-one's interests, least of all the Applicant's. I do not for one moment say that I agree with what the prosecution contends to be the effect of the quashing of Judge Longley's order. I merely mention it as a potentially very serious down-side for the Applicant if this application for judicial review is pursued.

10. Moreover, the prosecution contends that the Applicant can achieve what he wants by another route altogether. He can apply to a judge of the District Court for all the remaining charges which he faces to be joined in the same indictment pursuant to rule 7 of the Indictment Rules. Rule 7 provides:

"Subject to section 18 of the [Criminal Procedure] Ordinance, charges for any offences may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."

The prosecution would support such an application. Since R1-R4 are no longer concerned with the trials, no opposition to that course would come from them. It is extremely likely that such an application would be granted. The three remaining conspiracy charges, alternatively the thirty remaining substantive charges, are part of a series of offences of the same or a similar character. The judge hearing that application is not likely to be inhibited by Judge Longley's order because Judge Longley did not base his decision on rule 7 of the Indictment Rules at all. Therefore, if Judge Longley's order is no longer challenged, and if his order remains in effect, the position is as it was before Judge Beeson made her order, and it is clearly open to a judge of the District Court to order in those circumstances that the charges be joined in the same indictment pursuant to rule 7.

THE COURSE PROPOSED BY THE APPLICANT

11. It is against that background that Mr. Philip Wong for the Applicant now applies for this application for judicial review to be adjourned, pending an application by the Applicant to a judge of the District Court for an order under rule 7. If that application is granted, the Applicant will have got what he wants without running the risk that the price which he might have to pay for having his trials consolidated is a retrial on the charges on which he has been "acquitted". That course of action is not opposed by Mr. Michael Blanchflower for the prosecution, nor by counsel for R1-R4.

12. Accordingly, for the reasons which I have endeavoured to give, this application for judicial review is adjourned sine die, with liberty to restore. I lift the stay on the other three cases imposed by Stock J. (when granting leave to apply for judicial review), because otherwise the Applicant cannot make his application under rule 7, and the lifting of the stay will enable the District Court to proceed with the sentencing of R1, R3 and R4. The prosecution is anxious to ensure that there is some finality in these proceedings, and accordingly the Applicant undertakes through Mr. Wong that in the event of a successful application to a judge of the District Court under rule 7 of the Indictment Rules for all the remaining charges which the Applicant faces to be joined in the same indictment, the Applicant will apply as soon as practicable for this application for judicial review to be dismissed. I accept that undertaking. All parties are agreed that there should be no order as to costs, and that is the order which I make .

13. In the interests of completeness, I should add that I make no comment whatever on whether Judge Beeson's order of 2nd September 1996 was a nullity, or whether Judge Longley was right on 18th November 1996 to declare it a nullity. The course which the Applicant has asked me to take today has made it unnecessary to me to express even a provisional view on those topics. Moreover, the prosecution's willingness to go along with the Applicant's proposals should not be read as indicating an acceptance that Judge Longley might have been wrong. The prosecution's attitude today has been based entirely on how best the interests of justice in this case will be served in the future.

Representation:

Mr. Philip Wong, instructed by Messrs. Raymond M. K. Wu & Co. (assigned by the Director of Legal Aid), for the Applicant

Mr. Kenneth K. H. Lee, instructed by Messrs. C. M. Li, Chow, Pang & Chan, for the 1st, 3rd and 4th Respondents

Mr. Malcolm Lim, instructed by Messrs. Chong, Leung & Co., for the 2nd Respondent

Mr. Michael Blanchflower and Ms. Jenny Fung, of the Attorney-General's Chambers, for the 5th Respondent