Tso Joe Tak and Others v. Attorney General
Read the full judgment text of HCCL 1/1980 on BabelCite. This HCCL judgment.
1. On 20th September, 1979 informations were laid and summonses issued, charging the plaintiffs in the present action, with twenty offences under section 123 of the Securities Ordinance Cap. 333, of failing to disclose information and furnishing false information, in response to a requirement from the Commissioner for Securities for them to provide information. For convenience I shall refer to them as plaintiffs even when I am speaking of the criminal proceedings. The offences charged are of the
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HCCL000001/1980
IN THE SUPREME COURT OF HONG KONG HIGH COURT COMMERCIAL LIST NO.1 OF 1980 -----------------
----------------- Coram: O'Connor, J. in Chambers. Date of Judgment: 11th March, 1980. ----------------- JUDGMENT ----------------- 1. On 20th September, 1979 informations were laid and summonses issued, charging the plaintiffs in the present action, with twenty offences under section 123 of the Securities Ordinance Cap. 333, of failing to disclose information and furnishing false information, in response to a requirement from the Commissioner for Securities for them to provide information. For convenience I shall refer to them as plaintiffs even when I am speaking of the criminal proceedings. The offences charged are of the regulatory type and are only triable summarily. The 20th September was the last day upon which information could be laid within the limitation period set out in section 26 of the Magistrates Ordinance Cap. 227. On the 21st September, 1979 the plaintiffs issued the writ in the present action, by which they seek a declaration that the Commissioner for Securities was not entitled to ask them for the information he requested. The declaration asked for apparently covers all, or at least most of the ground that would be covered in the criminal proceedings. Though the writ was issued after the summonses, the Crown was aware beforehand that the plaintiffs were considering issuing proceedings for a declaration. It appears that the plaintiffs genuinely wish to have the Ordinance tested and construed by the High Court. The Crown does not suggest that this action is an attempt to delay or thwart the criminal proceedings, but does say that the action ought not to be allowed to continue in its present form. It is undisputed that the action has been brought forward expeditiously. Nothing turns in this case on the sequence in which the criminal and civil proceedings were issued, but the fact that there are criminal proceedings actually afoot is a material matter for my consideration, in exercising my discretion whether or not to permit the civil action to proceed. 2. The plaintiffs appeared before a magistrate on 31st October, 1979 and pleaded not guilty. The case was originally set down for hearing in the magistrates court to commence on 24th March, 1980, but has since been adjourned in order to give the plaintiffs the opportunity to pursue the action. At present, due to difficulties with counsel's diaries, the criminal proceedings are set for hearing on days commencing on the 10th November 1980, though it appears that if the action does not proceed, earlier hearing dates could be given for the criminal proceedings. The action could be heard on dates commencing the 26th May, 1980. I do not consider anything turns on which court can give the earlier hearing dates. There are similar criminal proceedings, against other persons, for hearing before the magistrate on the 4th July, 1980. 3. Before me is an application by the defendant that the statement of claim be struck out and the action dismissed on the grounds that it discloses no cause of action and is an abuse of process, or alternatively that I should decline jurisdiction in the exercise of my discretion because of concurrent jurisdiction. 4. The defendant makes it quite clear that he has no objection to proceedings by the plaintiff for a declaration as to the true meaning of the Ordinance, provided that it involves a pure question of construction, and therefore a decision in law without reference to fact. The defendant's submission is that there are disputed questions of fact that would have to be resolved by me if the action went ahead in its present form, and that it would be an abuse of process in the circumstances to allow that to happen, and further that in my discretion I ought to stop the action because of the criminal proceedings. 5. The plaintiffs have proceeded by way of writ rather than origination summons. That is an indication that the plaintiff expects there to be disputed questions of fact. The pleadings and the request for further and better particulars by the plaintiff also indicate there are areas of disputed fact. Indeed it is not disputed that there are such areas, though counsel do not appear to be agreed on how extensive those areas are. A consent order has been made extending the time within which each party may serve hearsay notices. That indicates that both parties contemplate the action being tried according to the procedure and rules of evidence applicable to civil rather than criminal proceedings. 6. Jurisdiction There is jurisdiction in the High Court to make a declaratory order even though the matter in issue may fall for decision in criminal proceedings. (Dyson v. A.G.(1), Dyson v. A.G.(2)). In that case there were no criminal proceedings actually in progress. It is now clear that the jurisdiction exists even if such proceedings are actually in progress. (Sankey v. Whitlam(3), Imperial Tobacco Ltd. v. A.G.(4)). Deciding matter in limine 7. The decision whether or not to make a declaratory order is a matter of discretion, which is not usually exercised on a motion to strike out a statement of claim and dismiss the action. However there is jurisdiction to terminate at that stage, proceedings for a declaration which clearly are an abuse of process, or where it is clear that a court would not exercise its discretion to grant a declaration. (Roesin v. A.G.(5), Imperial Tobacco Ltd. v. A.G.(6)). I do not consider the remarks to the contrary in (Dyson v. A.G.(7)) are to be taken as expressing an absolute rule. Whether an action should be stopped in limine very much depends on the facts of the particular case. For reasons which I hope will shortly be apparent, I consider this a proper case to decide the matter at this stage. 8. Discretion It is not desirable that the manner of exercise of the broad discretion to make declarations be fettered by guidelines (Imperial Tobacco Ltd. v. A.G.(8)). 9. Lord Radcliffe said in Ibeneweka v. Egbuna(9)-
10. A court will be reluctant to make declarations in a matter which impinges directly on the course of proceedings in a criminal matter, and once such proceedings have begun they should be allowed to follow their natural course, unless it appears for some special reason, that it is necessary in the interests of justice to make a declaratory order. (Sankey v. Whitlam(10) ). 11. In the present case the plaintiffs are not prepared to say that they would plead guilty if they failed in the action, though it is said on their behalf that they would probably do so. Nor is the defendant, the Attorney General, prepared to say that if the declaration were made he would drop the criminal proceedings. The reason for the parties taking this stand is that they agree, on the authority of Reg. v. Humphreys(11), that there is no issue estoppel in criminal proceedings, and therefore the magistrate would not be bound by any findings of fact in the action. There is substance behind these attitudes, because there are disputed questions of fact, and the rules of evidence are not the same in criminal and civil proceedings. I shall develop this point later. 12. It therefore appears that a declaration, on disputed facts, in the High Court may not serve to resolve the matters at issue between the parties. This is a relevant factor, (Imperial Tobacco Ltd. v. A.G.(12)). In that case the decision on the declaration would have finally resolved the issues. That was a case where the facts do not appear to have been in dispute. 13. It is undesirable that there be conflicting findings of fact by different courts. In Connolly v. Director of Public Prosecutions(13), Lord Devlin said: -
In Munnich v. Godstone Rural District Council(14), that passage was approved by Lord Denning and he went on to emphasise that those words are particulary apt when the issue is one of fact. Salmon, L.J. approved of the passage but pointed out that in Munnich's case the only real issue was one of pure law. 14. In Baker v. Market Harborough Industrial Co-operative Society Ltd.(15) Lord Denning said: -
It is where the issue is one of law that a case can be made out for the High Court assuming jurisdiction to make a declaration in respect of matters that are pending decision in Criminal Proceedings (Imperial Tobacco Ltd. v. A.G.(16)). 15. In Gouriet v. Union of Post Office Workers(17) Lord Wilberforce said: -
These remarks are also apt in relation to a summary criminal trial, and though admittedly with less force, to what is in effect an acquittal by a civil court. In the same case(18) Viscount Dilhorne said: -
16. There are many differences between a criminal trial and a civil action. I mention some of them, the standard and burden of proof, rules as to hearsay evidence, confessions, power of the judge to call a witness of his own motion, compellability of witnesses, judges' discretion as to admission of prejudicial evidence, discovery, and election on making a submission of no case. There are also the factors that in the present action the plaintiff would begin, whereas in criminal proceedings the Crown, that is in effect the present defendant, would begin, and that in criminal proceedings the plaintiffs would be expected to give evidence before their witnesses, whereas in civil proceedings there is no such rule. I do not suggest all of these matters are likely to arise in the present action. These differences however point to the problems that may arise, and indicate why a decision of fact arrived at in criminal proceedings may be different to the decision arrived at in a civil action. A court ought to be cautious about assuming jurisdiction to enter into proceedings seeking a declaration on the basis of resolving disputed facts that are to be resolved in existing criminal proceedings. Of course some of the problems arising out of the differences in procedural and evidential rules might be resolved by my hearing the case according to the rules that apply in a summary trial. It has not been suggested that I adopt that procedure, and if it were suggested I doubt that I would do so. It would not resolve all the problems. 17. The conclusion I have come to is that this action is one which the High Court has jurisdiction to entertain, but has a discretion, to refuse to make a declaration, and that at the present stage I may, and should, decline to assume jurisdiction. I ought to stop the matter at this stage. I base my decision on that ground, though I am also of the opinion that in all the circumstances of this case, in particular that the parties might dispute the facts again in the criminal proceedings, it would be an abuse of process to allow the action to continue in its present form. In order that justice be done it is not necessary that the plaintiffs be permitted to have issues of fact tried in the High Court in a civil action, when those issues are coming up for trial in the criminal court assigned for such issues, where the plaintiffs will have the advantages that will accrue to them in criminal proceedings. 18. Accordingly I strike out the statement of claim and stay the action. I consider that if the action were framed as a question of law alone on the construction of the Ordinance, it would be a proper matter to be proceeded with in this action. It appears that a difficult question of construction is involved and it is desirable that it be decided in the High Court, before the criminal case comes to hearing. If the plaintiffs wish they may have leave to file an amended statement of claim. 19. Another point for decision is the defendant's application for security for costs from two of the plaintiffs who are companies in liquidation. I have been told, and apparently it is not disputed that they are voluntary liquidations. Each plaintiff is jointly and severally liable to the defendant for all costs that might be awarded. There is no suggestion that any of the other four plaintiffs are not good for any sum that might be awarded. I consider the situation is analogous to where one of a number of plaintiffs is resident out of the jurisdiction. In the circumstances I am not disposed to make an order for security.
NOTE The decision of the House of Lords in Imperial Tobacco Ltd. v. A.G. The Times 7 March 1980, on appeal from 1979 2 W.L.R. 805, came to hand after the delivery of the above judgment. Representation: Mr. Harman, Q.C. & Mr. Allman-Brown (Wilkinson & Grist) for Plaintiffs. Mr. Barlow, Crown Counsel, for Crown/Defendant. (1) [1911] 1 K.B. 410 (2) [1912] 1 Ch. 158 (3) [1978] 21 Australian Law Reports 505 (4) [1979] 2 W.L.R. 805 (5) [1918] 34 T.L.R. 417 (6) [1979] 2 W.L.R. 805 at 818H, 820D-F (7) [1911] 1 K.B. 410 at 417 (8) [1979] 2 W.L.R. 805 at 819A-C (9) [1964] 1 W.L.R. 219 at 224 (10) [1978] 21 Australian Law Reports 505 at 515 line 42 - 516 line 25 (11) [1977] A.C. 1 (12) [1979] 2 W.L.R. 805 at 819F (13) [1964] 2 All E.R. 401 at 442A-C (14) [1966] 1 All E.R. 930 at 933E-C (14) [1966] 1 All E.R. 930 at 935i (15) [1953] 1 W.L.R. 1472 at 1477 (16) [1979] 2 W.L.R. 805 at 813A, 819D-F, 820A, 829C (17) [1977] 3 All E.R. 70 at 83 (18) [1977] 3 All E.R. 70 at 90 |