Viroj Boosarawong v. The Queen

HCMP000669/1976

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

CASE NO. 669 OF 1976

-----------------

-----------------

-----------------

Coram: Li, J.

Date of Judgment: 18th November, 1976

Present: Mr. M. LEE (Messrs. C.C. LEE & Co.) for Applicant

Mr. W. Reid, Crown Counsel)

Mr. C.M. Hindle, Crown Counsel) for Respondent.

-----------------

JUDGMENT

-----------------

1. This is an application for bail under the provisions of Section 13 of the Criminal Procedure Ordinance.

2. The applicant is now on trial. He was arrested in June of this year and there had been several applications for bail which was eventually successful.

3. To cut a long story short, just before trial took place when the proceedings were set down before Mr. Commissioner O'Connor, the applicant applied for bail and was granted bail until the end of the trial or until further order. Yesterday, Mr. Commissioner O'Connor, for reasons given in the course of the trial, resolved to revoke bail. Hence, this new application.

4. A preliminary point has been raised by Crown Counsel who opposes this application. The point is that I have no jurisdiction to entertain this application. The reason is that by virtue of Order 79, rule 9, sub-para.12 of the Supreme Court Rules of England it is provided that if an applicant to a High Court in any criminal proceedings is refused bail by a judge in chambers the applicant shall not be entitled to make a fresh application for bail to any other judge or to a Divisional Court.

5. In support of this proposition, the cases of In re KRAY⁽¹⁾ and In re Hastings⁽²⁾ are cited to give the historical background of this rule of the Supreme Court in England. It is said that once the matter had been decided by a judge or a Divisional Court in the Supreme Court, another judge or another Divisional Court should not entertain the same application again. I shall refer to these cases at a later stage.

6. Mr. Martin LEE, learned counsel for the applicant, based his application and his contention on the plain wording of Section 13 of the Criminal Procedure Ordinance which provides that 'The court or a judge may at any time, on the application of any accused person, order such person, whether he has been committed for trial or not, to be admitted to bail, ...'He says that, first of all, there is no counterpart or similar provision in the Rules of our Supreme Court which is similar to Order 79 rule 9 of the Supreme Court of England. Further, he contends that a revocation of bail is not a refusal of bail. Alternatively, as bail was granted it later revoked by Mr. Commissioner O'Connor in court the refusal of bail was not by a judge sitting in chambers. Lastly, he contends that the plain language of the provision of the ordinance must be construed literally. If there is any doubt, the benefit should be given to a subject whose liberty is in issue.

7. I must confess that this case has caused me some anxiety because, obviously, it is a matter of principle. It boils down to one question and one question alone: whether I have any jurisdiction in the matter, viz: whether it is proper for me to be seized of the matter at this stage. In this connection, I have to cite a passage from the case of Lord Gardiner at page 744 citing with approval the judgment of Mr. Justice Vaisey in the case of Hastings says as follows:

"As Vaisey J. pointed out in In re Hastings (No.3) there is now no such thing as the Court of Chancery or the Court of Queen's Bench. There is only the High Court. As he said: 'How we, judges of the High Court, could be heard to override, overrule, or otherwise interfere with a judgment which was the result of the hearing by the Divisional Chourt, or how we could be heard to say that the conclusion of that court, and its order - an order of our own court, the only court which exists, the High Court of Justice - was wrong, and that something else should be done, is beyond my comprehension.'"

Referring to the case of In re Hastings, Mr. Justice Harman said at page 379:

"I concur in the conclusion at which my brother has arrived. It is always sad to be stripped of an illusion, but I, like, I expect, most lawyers, have grown up in the belief that in cases of habeas corpus the supplicant could go from judge to judge until he could find one more merciful than his brethren. That illusion was stripped from me when I read the report of the decision in the Queen's Bench Divisional Court last year in this very case. The decision was based upon this, that there never had been such a right. There had been a right to go from court to court; there had been a right in vacation to go from judge to judge, for the simple reason that the court was not sitting in bane; but there had never been a right in term time to go from one judge to another when the court to which the application should properly be made was available."

These two cases - particularly the case In re Hastings - do not rely on the provisions of Order 79, rule 9 of the Rules of the Supreme Court in England which had not then been made. These two cases do establish one principle, that is, one Division of the High Court in England will not entertain a subject matter which has been determined by another Division of the High Court in England.

8. In the present case, indeed, there is no decision by a Divisional Court; there is, however, a decision by a commissioner who has the similar jurisdiction of a judge in the High Court. The situation is very similar particularly having regard to the decision of Hastings. This principle is not founded upon the provisions of Order 79, rule 9 which appears to me to be a restatement of the law. It will be always invidious for one judge to review the decision of another, that would attract multiplicity of applications and proceedings. Admittedly, this is a matter of liberty of the subject, and, as such, one must construe the provisions of a section of our own ordinance strictly. The provisions of Section 13 is that The court or a judge may at any time, on the application of any accused person, order such person, ...... to be admitted to bail'. However, it is very similar to a situation where a judge is seized of a matter whether criminal or civil and make a decision and there is always the Appeal Court if he is wrong to correct him. It is not for another judge to review his decision or, indeed, to arrive at a different conclusion by a different approach.

9. I now deal with the argument that there has been no refusal as to bail. Admittedly, when the bail was applied for before trial, it was granted on terms, namely, it was until the end of trial or further order. Then, in the middle of the trial, such order was revoked after learned counsel had addressed the commissioner before he came to that decision. Be that as it may, the revocation of the bail, to my mind, amounts to a decision which could only be referred back on the original application.

10. I shall not go into the merit of the case. I have sympathy with the application. It may well be that in a case of this nature, a sudden revocation of bail would prejudice the position of the accused in the eye of the jury. However, the learned commissioner has heard the argument for and against the question of bail. The decision to revoke it must have had regard to the original application which amounts to a decision on the earlier application, and, as such, I find that it is improper for me now to assume the capacity to review his decision and to sit as if I sit in a Court of Appeal. As I have said, the position of the applicant at the moment is rather awkward. I am rather under the impression that he would have no recourse to the Court of Appeal if that decision stands alone. However, this is an application before me, a preliminary point has been made and a decision has now been given by me. That point can be tested in the Court of Appeal. I hipe, in due course, the principles in this matter can be thoroughly argued in a higher tribunal so that a clarification of the position can be made.

11. Having said so much and having expressed my anxiety as well as sympathy, I had that I have no jurisdiction to entertain this application. Accordingly, the application must be dismissed.

Representation:

Mr. M. LEE (Messrs. C.C. LEE & Co.) for Applicant

Mr. W. Reid, Crown Counsel)

Mr. C.M. Hindle, Crown Counsel) for Respondent.

(1) (1965) 1 Ch. 736

(2) (1959) 1 Ch . 368