Kwai Chi on v. Kwan Tit on Daniel and Another

HCAL000055/1999

1999 HCAL No. 55

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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Coram: Keith J.A. (sitting as an additional judge of the Court of First Instance)

Date of Hearing: 25 June 1999

Date of Delivery of Judgment: 25 June 1999

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J U D G M E N T

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1. KWAN Kai Ming led an active life. He had two wives and two concubines. They bore him 16 children. Following his death, a dispute arose over the administration of his estate. One of the issues was whether Daniel Kwan was the legitimate son of Kwan Kai Ming. The allegation that Daniel Kwan was not the legitimate son of Kwan Kai Ming was made by Kwai Chi On, the Applicant, who was one of his legitimate sons.

2. At first instance, it was found that Daniel Kwan was the legitimate son of Kwan Kai Ming. However, that judgment was set aside on appeal and a new trial was ordered. That trial will not now take place. DNA tests have shown to the satisfaction of all parties that Daniel Kwan is, indeed, the son of Kwan Kai Ming. However, what is still very much in issue is who will have to bear the costs of those proceedings.

3. In due course, Daniel Kwan was charged with perjury and making contradictory statements on oath. Those charges related to the evidence he had given in the civil proceedings. He was to be tried on those charges in the District Court. However, the trial never got under way. That was because Daniel Kwan's counsel successfully applied for a stay of the criminal proceedings. Although the application for a stay was decided on the basis of documents and legal submissions, the judge made a number of adverse comments in his judgment about the Applicant's honesty. It is said that those comments were completely unjustified.

4. It is against that background that the Applicant now applies for leave to apply for judicial review. His target is the decision of the judge to stay the criminal proceedings. However, his Notice of Application, at any rate in its original form, did not disclose sufficient grounds for granting leave to challenge that decision. The grounds relied upon related merely to why the judge should not have made the adverse comments about the Applicant which he did. To the extent that those comments will be relied upon by any of the parties claiming costs in the civil proceedings, the Applicant's counsel can argue then that the judge's comments should be ignored.

5. However, the Notice of Application has now been amended to specify the grounds for challenging the stay of the proceedings. I do not comment upon those grounds because I have decided to refuse this application on one ground only, namely, that the Applicant does not have "a sufficient interest" in whether the criminal proceedings should have been stayed or whether they should continue.

6. It is, I know, very rare for leave to apply for judicial review to be refused on the ground of lack of standing, but all my instincts tell me that there is something seriously wrong about the notion that in criminal proceedings someone other than the prosecution or the defence can challenge substantive orders made in those proceedings.

7. Indeed, save for cases involving the freedom of the press to report criminal cases, such as R. v. Horsham Justices ex parte Farquarson [1982] QB 762, or to have access to the names of the magistrates trying criminal cases, such as R. v. Felixstowe Justice ex parte Leigh [1987] QB 582, i.e. ancillary orders made in criminal proceedings, I know of no case, and Mr. Paul Harris for the Applicant was unable to cite any to me, in which someone who was not a party to the criminal proceedings had been regarded as having a sufficient interest to challenge substantive decisions made in those proceedings.

8. In the absence, therefore, of a sufficient interest on the part of the Applicant in the criminal proceedings, this application for leave to apply for judicial review must be refused.

Representation:

Mr. Paul Harris, instructed by Messrs. Peter Barnes & Co., for the Applicant

Remarks:
On appeal by the Applicant to the Court of Appeal: Appeal dismissed. Please refer to judgment CACV000187/1999.