Re Keung Siu Wah

HCMP000659/1989

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Coram: The Hon. Mr. Justice Mayo in Chambers

Date of Hearing: 14th-16th June, 20th-21st June 1989

Date of Delivery of Judgment: 3rd July 1989

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J U D G M E N T

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1. I have lying before me two applications. The first is the Applicant's motion for Judicial Review. The second is the Respondent's application by summons to set aside the leave I granted on the 7th of April 1989 to the Applicant pursuant to the provisions contained in Order 53 of the rules.

2. Obviously it is right that I should consider first the Applicant's summons to set aside the leave.

3. Before I start to consider in any detail the merits of the Applicant's case I think it is desirable to have regard to the relevant criteria to determine whether or not I should hale granted leave.

4. The notes in The Supreme Court Practice 1988 at page 795 read "The purpose of the requirement of leave is to eliminate frivolous vexatious or hopeless applications for Judicial Review without the need for a substantive inter parties judicial review hearing".

5. No authority is cited for this proposition. However some guidance can be obtained from the observations of May and Purchas L.J. and Sir David Cairns in Ex parte Herbage 1987 1 QB 1077. Further assistance can be derived from the report in The Times 26th December 1988 in the judgment of Rose J. in R. v. District Auditor Cheimsford Ex parte Judge.

6. I am satisfied that both these cases are good authority for the views expressed in the White Book. More particularly, in the context of the present litigation what I have to decide is whether the Respondent has been able to show that the application is either hopeless or misconceived. This is the yardstick I propose adopting.

7. The Decision or order the Applicant is complaining of is the Decision of the Attorney General to charge the Applicant together with 2 other gentlemen with a conspiracy to defraud between the months of January and July 1984.

8. The Applicant gives details of all the various matters in his supporting affidavit.

9. There is an unhappy history referred to in the affidavit. According to the Applicant he was charged with "five quite similar counts of conspiracy to defraud" and was put on trial in the Supreme Court in April 1986. He was convicted on two counts after a trial and sentenced to two years imprisonment.

10. While the Applicant was serving his term of imprisonment he was approached by two Police Officers who requested him to assist them in their further enquiries relating to the matters in question.

11. It is his case that, he only agreed to assist the Police on the clear understanding that he would be granted immunity from any further proceedings. On this understanding he made a full statement which included material implicating himself further. When he was released from prison he was immediately arrested. He was released on bail but during the ensuing months he made four further statements on the same basis.

12. He was then greatly shocked to be charged with the charge which is the subject of this review.

13. Specifically the relief which is being sought by the Applicant is:

"(1) (a) A Declaration that the said Charge preferred by the Attorney General against the Applicant is

(i) an abuse of process, and/or

(ii) oppressive, and/or

(iii) unlawful.

(b) Consequential declarations and/or directions.

(2) Further or alternatively; an Order of Prohibition to restrain the District Court of Hong Kong from hearing or continuing to hear the said Charge preferred against the Applicant."

14. The grounds on which this relief is sought are:

"(1) The Applicant has been prejudiced by the inordinate delay in the bringing of the said Charge against him.

(2)    Further or alternatively, certain officials of the State had failed to honour promises and/or assurances made by them to the Applicant thereby rendered the said Charge against the Applicant oppressive and/or an abuse of process."

15. For the purposes of this application it is appropriate that I must accept that the contents of the Applicant's affidavit is true and correct. The Respondent has not at this stage chosen to take issue with the matters ventilated.

16. The first matter I must consider is the nature of the decision which is being complained of. It is the decision of the Attorney General to lay the charge.

17. It is relevant in this connection to observe that the main thrust of the complaint which is being made is the misconduct of the Police in inducing the Applicant to incriminate himself by holding out the false promise of immunity. There is no evidence whatever before me that the Attorney General or any member of his Chambers had any knowledge of this inducement.

18. I agree with Mr. Marshall who represented the Attorney General that it is not constitutionally correct to attribute to the Attorney General any misconduct on the part of members of the Police Force.

19. Police officers are answerable for their actions to the Commissioner of Police not the Attorney General.

20. What is being attacked is the decision of the Attorney General to proceed with the charge against the Applicant.

21. I will now consider the question of the extent to which this decision can be the subject of a successful Judicial Review.

22. I was indebted to Mr. Marshall for a comprehensive review of the position going back to cases in the last century. However I am satisfied that the law has been admirably summarised by the House of Lords in Gouriet v. UPW 1978 AC 435. I propose citing what seem to me to be the most helpful passages from the speeches of Lord Wilberforce, Viscount Dilhorne and Lord Edmund Davies.

23. Lord Wilberforce had this to say at page 482:

"The Attorney-General's right to seek, in the civil courts, anticipatory prevention of a breach of the law, is a part or aspect of his general power to enforce, in the public interest, public rights. The distinction between public rights, which the Attorney-General can and the individual (absent special interest) cannot seek to enforce, and private rights, is fundamental in our law. To break it, as the plaintiff's counsel frankly invited us to do, is not a development of the law, but a destruction of one of its pillars. Nor, in my opinion, at least in this particular field, would removal of the distinction be desirable. More than in any other field of public rights, the decision to be taken before embarking on a claim for injunctive relief, involving as it does the interests of the public over a broad horizon, is a decision which the Attorney-General alone is suited to make: see Attorney-General v. Bastow [1957] 1 Q.B. 514.

This brings me to the second, argument. Surely, it is laid, since the whole matter is discretionary it can be left to the court. The court can prevent vexatious or frivolous, or multiple actions: the court is not obliged to grant an injunction: leave it n the court's hands. I cannot accept this either. The decisions to be made as to the public interest are not such as courts are fitted or equipped to make. The very fact, that, as the present case very well shows, decisions are of the type to attract political criticism and controversy, shows that they are outside the range of discretionary problems which the courts can resolve. Judges are equipped to rind legal rights and administer, on well-known principles, discretionary remedies. These matters are widely outside those areas.

It is said, that the Attorney-General can always be joined as a party - as he was here - and so can represent the public interest. There are clear objections to making him a defendant if he were, so joined, he, and through him all members of the public, would be bound by the decision. But even if he appears as amicus curiae, what is gained? His presence as, presumably, a hostile or at least a non-suppporting party cannot legitimise the plaintiff's otherwise, illegitimate claim to represent the public. Moreover, when he is there, either he objects to the proceeding in the public interest without giving reasons; in which case (unless the court overrules him) nothing has been achieved beyond his refusal to allow relator proceedings: or he is obliged to state his reasons for objection and the court; is able to review them. But this is contrary to the whole nature of his office and to the general principle that the court cannot review."

24. Viscount Dilhorne expressed similar views at page 487:

"The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign apiece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the insititution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by, his ministerial colleagues or to control and supervision by the courts. If the court can review his refusal of consent to a relator action it is an exception to the general rule. No authority was cited which supports the conclusion that the courts can do so. Indeed such authority as there is paints strongly in the opposite direction. In 1902 in London County Council v. Attorney-General [1902] A.C. 165 Lord Halsbury L.C. said, at pp. 168-169: 169:

'My Lords, one question has been raised, though I think not raised here - it appears to have emerged in the court below - which I confess I do not understand. I mean the suggestion that the courts have any power over the jurisdiction of the Attorney-General when he is suing on behalf of a relator in a matter in which he is the only person who has to decide those questions. It may well be that if is true that the Attorney-General ought not to put into operation the whole machinery of the first law officer of the Crown in order to bring into court some trifling matter. But if he did, it would not go to his jurisdiction; it would go I think, to the conduct of his office, and it might be made, perhaps in Parliament, the subject of adverse comment; but what right has a court of law to intervene? If there is excess of power claimed by a particular public body, and it is a matter that concerns the public, it seems to me that it is for the Attorney-General and not for the courts to determine whether he ought to initiate litigation in that respect or not …In a case where as a part of his public duty he has a right to intervene, that which the courts can decide is whether there is the excess of power which he, the Attorney-General, alleges. Those are the functions of the court; but the initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General. I make this observation upon it, though the thing has not been urged here at all, because it seems to me to be very undesirable to throw any doubt upon the jurisdiction, or the independent exercise of it by the first law officer of the Crown.'

In the same case Lord Machaghten said, at p. 170, that he entirely concurred in these observations. Although obiter, they nevertheless have great authority and in-my opinion the view that refusal of consent to a relator action is an exception to the general rule and is subject to review by the courts must be rejected. It is because I think it undesirable that any judicial observations suggesting that the exercise by the Attorney-General of these functions and duties is subject to control, supervision and review by the courts should be left unanswered that I have ventured to make these observations."

Finally Lord Edmund Davies at page 512:

"But it is not the law that every criminal act must lead to a prosecution (Buckoke v. Greater London Council [1971] Ch. 655, per Lord Denning M.R., at p. 668D-H), and, even if it were, the Attorney-General is unquestionably entitled to halt prosecutions in the manner already indicated. In other words, it is ultimately a matter for his unfettered discretion. The Court of Appeal regarded the manner of its exercise in the present case as so inexplicable that, in the words of Lawton L.J., at p. 739:

'... until such times as there is some explanation as to why the Attorney-General did hot intervene, then on the face of it his failure to do so must have been for some reason which was not a good reason in law.'

And yet lip-service was paid to the proposition that the Attorney-General's exercise of his discretion cannot be reviewed by the courts. For my part, I venture to reiterate by way of a contrast the striking fact that my noble and learned friend, Viscount Dilhorne, has expressed the affirmative view that the Attorney-General may well have acted in the public interest in withholding his consent. This highlights the undersirability of making the matter one of disputation in the courts, instead of in Parliament.

Accepting as l do that the Attorney-General's discretion is absolute and non-reviewable, there was accordingly, in my judgment, no basis upon which the plaintiff should have been granted the final injunction he sought. It remains to be considered whether he should have been granted any relief or whether, as the three defendants submit, the proceedings should have been dismissed as showing no reasonable cause of action."

25. This line of reasoning has also been adopted in other Commonwealth countries.

26. The judgment of Gibbs and Mason J.J. in Barton v. R. 1980 32 ALR 449 is particularly helpful. At page 455 they say:

"The decisions in Prosser and in the later case of R. v. Allen (1862) 1 B & S 850; 121 ER 929, that the courts cannot review the Attorney-General's exercise of the prerogative power to enter or refuse a nolle prosequi, are in conformity with the principle that the courts cannot examine the exercise by the Attorney-General of his common law power to grant or refuse a fiat in connection with a relator action (London County Council v. Attorney-General [1902] AC 165 at 168-9,170; Gouriet v. Union of Post Office Workers [1977] 3 All ER 70; [1978] AC 435 at 488; R. v. Labouchere (1884) 12 QBD 320).

On the one occasion in England, when consideration was given to the question whether the courts could examine the Attorney-General's common law power to present an ex officio information, the question was answered in the negative. In R. v. Comptroller-General of Patents; Ex parte Tomlinson [1899] 1 QB 909, A L Smith L.J. said (at 914): "The issue of such an information is entirely in the discretion of the Attorney-General, and no one can set such an information aside… In Van Gelder's Patent, 6 Rep Pat Cas 22, the position of the Attorney-General in these matters is stated in the judgments in the Divisional Court and in the Court of Appeal. I will read a passage from the judgment of Bowen L.J.: 'At common law, the Attorney-General is, when he is exercising his functions as an officer of the Crown, in no case that I know of a court in the ordinary sense.' It follows that I his decisions, when exercising such functions, were riot subject to review by the Court of Queen's Bench, and are not now subject to review by the Queen's Bench Division or this Court."

Professor Edwards in The Law Officers of the Crown says, with reference to the speech of the Earl of Halsbury LC in London County Council v. Attorney-General (at p. 289): "Indeed, Lord Halsbury might well have gone further and drawn the exact analogy between the Attorney's responsibility in instituting a relator's action and the exercise of his authority in those areas of criminal prosecutions, for example, nolle prosequi, 'consent' offences and ex officio informations, in which the senior Law Officer's fiat is the key which sets the machinery of justice in motion. In all these instances, embracing both civil and criminal proceedings, the Attorney-General is accountable not to the courts but to Parliament for the manner in which he discharges his discretionary authority."

27. In Canada a similar view was expressed by Fauteux, C.J.C. in R. v. Smythe 1971 3CCC 366 at page 370:

"In my opinion, appellant's views fail to recognise that the provisions of s. 132(2) do not, by themselves, place any particular person or class of persons in a condition of being distinguished from any other member of the community and that, applicable without distinction to everyone, as indeed they are, these provisions simply confer upon the Attorney-General of Canada the power of deciding, according to his own judgment and in all cases, the mode of prosecution for offences described in s. 132(1). Appellant's arguments also fail to recognise that the manner in which a Minister of the Crown exercises a statutory discretionary power conferred upon him for the proper administration of a statute is irrelevant in the consideration of the question whether the statute, in itself, offends the principle of equality before the law. Obviously, the manner in which the Attorney-General of the day exercises his statutory discretion may be questioned or censured by the legislative body to which lie is answerable, but that again is foreign to the determination of the question now under consideration. Enforcement of the law and especially of the criminal law would be impossible unless someone in authority be vested with some measure of discretionary power. The following statements made in the Lafleur case at p. 248 [C.C.C.] by Montgomery, J.A., with the concurrence of Tremblay, C.J.Q., and Pratte, J.A., are to the point and I adopt them.

I cannot conceive of a system of enforcing the law where some one in authority is not called upon to decide whether or not a person should be prosecuted for an alleged offence. Inevitably there will be cases where one man is prosecuted while another man, perhaps equally guilty, goes free. A single act, or series of acts, may render a person liable to prosecution in more than one charge, and someone must decide what charges are to be laid. If an authority such as the Attorney-General can have the right to decide whether or not a person shall be prosecuted, surely he may, if authorised by statute, have the right to decide what form the prosecution shall take. I cannot see that the situation is altered because s. 132(2) provides for a minimum term of imprisonment."

28. In Hong Kong, Sears J. in Re An application for Judicial Review 1989 1 HKLR 93 which in many respects was similar to the present case held that the scope for reviewing the discretion of the Attorney General was severely circumscribed.

29. If the Applicant is unable to obtain redress by way of judicial review how should he proceed?

30. The answer to this is that there is nothing to prevent him from making an application to the trial judge at the commencement of the hearing. The scope for any such application would be limited. I say this because the courts do not encourage applications of this nature.

31. Watkins L.J. considered a similar situation in R. v. Heston Francois 1984 1 All ER 784. He said at page 792:

"We are satisfied, from a close perusal of the transcript of the summing up and from reading the 500 pages of grounds of appeal prepared by the appellant and those drafted by counsel, that, had there been any basis for an assertion that use had indeed been made at the trial of the appellant's files or tapes, we should have found it, or have had it brought to our notice by or on behalf of the appellant. It was alleged that police officers approached a potential witness for the defence, a man called Hattley, 'seeking', in counsel's words, 'to interfere with the defence'. But counsel later conceded that Hattley had been unaffected by any approach of that kind and gave the evidence he was from the outset apparently prepared to give.

However, counsel for the appellant submits considerations of that kind are irrelevant. They arise from hindsight. If the judge, as he should have done, had conducted a kind of pre-trial inquiry, the trial may never have started, in which event they would not have arisen. The seizure of legally privileged documents, as was done here, is enough to bring into being his duty to inquire before the trial and to exercise the discretion to stay inevitably, says counsel, in favour of the appellant. That not having been done, this court should declare the trial a nullity and quash the convictions appealed against. It is not this court's concern, he went on-to say; that the appellant was not in fact, as was conceded, prejudiced by what happened to his documents.

Counsel for the Crown countered those arguments by submitting that to hold such an inquiry would have far-reaching implications. It is important; he said, that criminal courts are not used to discipline the police. Victims of crime and the public at large have an interest in prosecutions going on. Here, there was a proper committal. The right to silence, which he agrees is an important fundamental right (it was much referred to by counsel for the appellant), is properly to be preserved by the discretion of a judge to exclude evidence. Evidence, including a confession improperly obtained, may be and sometimes is declared to be admissible, the weight to be given to it being left to the jury. A pre-trial inquiry such as the appellant contends the judge in this case was under a duty to embark on would itself be open to abuse by unscrupulous and dishonest accused persons. The criminal trial system would be placed in jeopardy. The facts of the present case demonstrated the importance of, among other things, discovering during the trial whether alleged misconduct by the police had had any effect on the evidence and any likely bearing on the result. It had had done. In Mackeson's case, much relied on by counsel for the appellant, there was no reference in the judgment to the principle sought to be established here.

We were much impressed by the submissions of counsel for the Crown. They accord with our view that there is no general duty laid on a judge to conduct a pre-trial inquiry on the application of an accused and thereafter, to exercise a discretion whether or not he should stay the proceedings.

As we have said, the court's inherent jurisdiction to stay proceedings is not in doubt. There is high authority for its existence, as was acknowledged in R. v. Hartley [1978] 2 NZLR 199. There is equally no doubt, in our opinion, that this jurisdiction, the whole scope of which does not arise for examination by us, does not include an obligation to hold a pre-trial inquiry, designed to bring about a stay of proceedings, into such allegations as the improper obtaining of evidence, tampering with evidence and seizure of a defendant's documents prepared for his defence. However reprehensible conduct of this kind may be, it is not, at least in circumstances such as the present, an abuse or, in another word, a misuse of th court's process. It is conduct which, in these circumstances, falls to be dealt with in the trial itself by judicial control on admissibility of evidence, the judicial power to direct a verdict of not guilty, usually at the close of the prosecution's case, or by the jury taking account of it in evaluating the evidence before them."

32. It is however clear that if the Applicant was able to establish that either the Attorney General or any of the Police Officers against whom complaint is made have been guilty of abusing the process of the court or acting in an oppressive manner towards him the District Court Judge would have power to dismiss the charge.

33. The observations of Viscount Dilhorne in DPP v. Humphrys 63 CAR 95 at page 106 illustrate the sort of factors which would be borne in mind on such an application:

"He went on to say at pp. 206 and 1300: 'I consider that if a charge is preferred which is contained in a perfectly valid indictment which is drawn so as to accord with what the court has stated to be correct practice and which is presented to a court clothed with jurisdiction to deal with it and if there is no plea in bar which can be upheld, the court cannot direct that the prosecution must not proceed.'

It does not appear to me to have been necessary in Connelly (supra) to decide whether a judge had power to stop any prosecution in limine, and while I recognise that some of the speeches contained observations of a very general and far-reaching character, I cannot see any reason for thinking that any members of the House would have held that a judge could, in his discretion, prevent the trial of a person for perjury after the alleged perjury had secured his acquittal on the ground that in the judge's view as a matter of policy the prosecution should not have been brought, was unfair oppressive and an abuse of process. In this connection I regard the observations of Lord Horris of Borth-y-Gest as very pertinent. In Connelly (supra) the House was concerned and only concerned with a second trial for a different offence on the same evidence as the first trial and that is a very different situation from that now under consideration.

In Mills v. Cooper (supra) where justices had dismissed a summons on the ground that it was oppressive and an abuse of the process of the court Lord ParKer C.J., while holding that it was not said at p. 467: " ... every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court."

I must confess to some doubt whether this is a correct statement of the law in relation to magistrates' courts. If it is, it appears to me to be fraught with considerable dangers. One bench thinking a prosecution should not have been brought will dismiss it as oppressive and vexatious. Other benches on precisely the same facts may take a completely different view, with the result that there is a lack of uniformity in the administration of justice.

Nor is the existence of the power my noble and learned friends Lord Salmon and Lord Edmund-Davies think the judge has and its exercise without considerable dangers.

A judge rust keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.

If there is the power which my noble and learned friends think there is to stop a prosecution on indictment in limine, it is in my view a power that should only be exercised in the most exceptional circumstances. In cases where there could be one trial for more than one offence and it is sought without good reason to have two trials on the same facts, it may be right to exercise it but I cannot think that any question of double jeopardy arises on a perjury charge or that it is right that the power should be exercised by a judge from whose decision there is no appeal, simply because in his view there should be few prosecutions for perjury, when perjury is all too frequent, and because the result of a successful prosecution for perjury may lead to the inference that the accused is guilty of the offence of which in consequence perhaps of his perjury he was acquitted."

34. In the same case Lord Salmon agreed with Viscount Dilhorne at page 122:

"I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given and absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred. I express no concluded view as to whether courts of inferior jurisdiction possess similar powers. But if they do and exercise them mistakenly, their error can be corrected by mandamus (see Wills v. Cooper (supra)).

I wish to make only one observation about R. v. Chairman, of London County Quarter Sessions (1953) 37 Cr. App. R. 148; (1954) 1 Q.B. 1 in which Lord Goddard C.J. gave the judgment of the court and to Which my learned and noble friend, Viscount Dilhorne refers. The only point that arose for consideration in that case was whether the chairman had any power to quash an indictment on the ground that the evidence disclosed by the depositions was insufficient to support a conviction. I do not think that the point which I have been discussing was or appeared to be relevant for the purpose of that case to any member of the court - certainly not to Parker J. (as he then was - who later delivered the judgment in Hills v. Cooper (supra)."

35. Sir Roger Ormord commented on DPP v. Humphrys in R. v. Derby Crown Court 80 CAR 164. He considered in rather more detail the type of situations where the court may be justified in interfering with the prosecution process. He said at page 168:

"In our judgment, bearing in mind Viscount Dilhorne's warning in Director of Public Prosecutions v. Humphrys (1976) 63 Cr. App. R. 95, 107; [1977] A.C. 1, 26, that this power to stop a prosecution should only be used "in most exceptional circumstances," and Lord Lane C.J.'s similar observation in oxford City Justices, Ex parte Smith (1982) 75 Cr. App. R. 200, 204, which was specifically directed to magistrates', courts, that the power of the justices to decline to hear a summons is ''very strictly confined," the effect of these cases can be summarised in this way. The power to stop a prosecution arises only when it is an abuse of the process of the court. It may be an abuse of process if either (a) the prosecution have manipulated or misused the process of the court so as to deprive the defendant of a protection provided by the law or to take unfair advantage of a technicality, or (b) on the balance of probability the defendant has been, or will be, prejudiced in the preparation or conduct of his defence by delay on the part of the prosecution which is unjustifiable: for example, not due to the complexity of the inquiry and preparation of the prosecution case, or to the action of the defendant or his co-accused, or to genuine difficulty in effecting service. We doubt whether the other epithets which are sometimes used in relation to delay, such as "unconscionable," "inordinate," or "oppressive," do more than add an emotive tone to an already sufficiently difficult problem.

The ultimate objective of this discretionary power is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and the prosecution, for, as Lord Diplock said in Sang (1979) 69 Cr. App. R. 282, 290; [1980] A.C. 402, 437: " … the fairness of a trial ... is not all one-sided; it requires that those who are undoubtedly guilty should be convicted as well as that those about whose guilt there is any reasonable doubt should be acquitted." It is, as Lord Diplock also said in that case (ibid) "no part of a judge's function to exercise disciplinary powers over the police or prosecution as respects the way in which evidence to be used at the trial is obtained by them." Or, we would add, in regard to the preparation of the case, unless this has prejudiced the defendant in the way we have indicated. If the delay is not shown to have prejudiced the defendant in this way, lengthy inquiries into the reasons for the delay should not be necessary."

36. Having regard to the allegations which have been made by the Applicant in his supporting affidavit I do not think that there is much likelihood of his persuading the trial judge in the District Court to order that the charge should not be proceeded with.

37. What is much more likely is that all of the matters which are complained of will be considered during the course of the trial.

38. In particular I have in mind the complaint that an inducement was offered to the Applicant to make the five statements which have been referred to. I would imagine that if the Applicant wishes to contest the admissibility of all or any of the statements a voire dire will be held. The trial judge will then have to decide on all of the evidence whether the prosecution has been able to prove that the statements were indeed free and voluntary and if they are unable to do so the statements will not be admitted as evidence.

39. Mr. Bernacchi for the Applicant submitted that the Attorney General's discretion to prosecute was amenable to Judicial Review. He placed heavy reliance upon CCSU v. Minister for the Civil Service 1985 AC 374.

40. If I understood his arguments correctly he contended that the case provided good authority for the proposition that the court had power to review actions of even a Minister acting under prerogative power in the same way as it had power to review a statutory power.

41. This may be correct. However the discretion of the Attorney General to proceed with a charge against a Defendant is an entirely different matter.

42. The passages I have earlier cited in the speeches of the Law Lords in Gouriet deal specifically with the discretion to prosecute and there is nothing in any of the speeches of the Law Lords in CCSU v, Minister for the Civil Service which in any way departs from the underlying principals propounded in Gouriet.

43. Perhaps it is even more helpful to consider the principals which were laid down in that case when judicial review would be available.

44. The classic statement of this is contained in the speech of Lord Diplock at page 410:

"My Lords, I see no reason why simply because a decision-making power is derived front a common law and not a statutory source, it should for that reason only be immune from judicial review. Judicial review has I think developed to a stage today when without reiterating any ananlysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality," the second "irrationality" and the third "procedural impropriety." That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community; but to dispose of the instant case the three already well-established heads that I have mentioned will suffice.

By "illegality" as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.

By "irrationality" I mean what can by now be succinctly referred to as "'Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948] 1 K.B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. Whether a decision falls within this category is a question that judges by their training and experience should be well equipped to answer, or else there would be something badly wrong with our judicial system. To justify the court's exercise of this role, resort I think is today no longer needed to Viscount Radcliffe's ingenious, explanation in Edwards v. Bairstow (1956} A.C. 14 of irrationality as a ground for a court's reversal of a decision by ascribing it to an inferred though unidentifiable mistake of law by the decision-maker. "Irrationality" by now can stand upon its own feet as an accepted, ground on which a decision may be attacked by judicial review.

I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision.. This is because susceptibility to judicial review under this head covers also failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any genial of natural justice. But the instant case is not concerned with the proceedings of an administrative tribunal at all.

My Lords, that a decision of which the ultimate source of power to make it is not a statute but the common law (whether or not the common law is for this purpose given the label of "the prerogative") may be the subject of judicial review on the ground of illegality is, I think, established by the cases cited by my noble and learned friend, Lord Roskill, and this extends to cases where the field of law to which the decision relates is national security, as the decision of this House itself in Burmah Oil Co. Ltd. v. Lord Advocate, 1964 S.C. (H.L.) 117 shows. While I see no a priori reason to rule out "irrationality" as a ground for judicial review of a ministerial decision taken in the exercise of "prerogative" powers, I find it difficult to envisage in any of the various fields in which the prerogative remains the only source of the relevant decision-making power a decision of a kind that would be open to attack through the judicial process upon this ground. Such decisions will generally involve the application of government policy. The reasons for the decision - maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer, by which I mean that the kind of evidence that is admissible under judicial procedures and the way in which it has to be adduced tend to exclude from the attention of the court competing policy considerations which, if the executive discretion is to be wisely exercised, need to be weighed against one another - a balancing exercise which judges by their upbringing and experience are ill-qualified to perform. So I leave this as an open question to be dealt with on a case to case basis if, indeed, the case should ever arise."

45. There is nothing on the material before me which could remotely bring the Attorney General's decision to proceed with the prosecution against the Applicant within the scope of Lord Diplock's criteria.

46. Mr. Bernacchi also argued that the powers exercisable by the Attorney General in Hong Kong were very different to those of his English counterpart.

47. Huggins J.A. considered this question in Cheung Sou Yat v. R. 1979 HKLR 630 at page 634:

"We have heard an extensive argument as to the nature of the office of the Attorney General of Hong Kong and upon the question whether the courts have any power of control over the discharge of the functions of that office. It is not necessary to review all the powers of a colonical Attorney General or to decide whether there might be any circumstances in which the court would exercise control over him, but none of the authorities cited by Mr. Donnelly has persuaded me that, in so far as powers similar to those of Her Majesty's Attorney General in England may be applicable to the circumstances of Hong Kong, they are not exercisable by the Attorney General of this colony and in as full and ample a manner. Her Majesty the Queen is no less "interested with the prosecution of all crimes which disturb the peace and order of society" (Wilkes v. Rex) (1768) Wilm. 322 here than she is in England and, if she; chooses to act through an official appointed by warrant under the hand of the Governor rather than by Letters Patent under her own hand, that does not alter the powers of the persons so appointed: he equally exercises her prerogative powers in so far as they have been delegated, expressly or by necessary implication, in addition to any powers conferred by statute. An argument similar to that advanced on behalf of the Appellant before us was rejected by the Full Court in Bailey v. Reg (1955) 39 HKLR 75."

48. I have no doubt that this is a correct statement of the position.

49. I have considered carefully all of the other submissions made to me by Mr. Bernacchi and all of the authorities he cited to me. I regret that I have come to the conclusion that nothing he has said persuades me that the decision of the Attorney General to prosecute the Applicant is amenable to Judicial Review. Indeed I have come to the conclusion that the Application is misconceived and adopting the yardstick I referred to earlier in this judgment I have no alternative but to set aside the leave which I granted. I will hear the parties on costs.

Representation:

Mr. Brook Bernacchi, Q.C. & Mr. Henry Lo (Lee & Chow) assigned by D.L.A. for Applicant.

Mr. William Marshall, Q.C. & Mr. E. Lau (Attorney General's Chambers) for Respondent.