In Re Charles Warwick Reid

HCMP002862/1993

Headnote

[Leave for a judicial review will not be granted unless the court considers that the material before it discloses what might on further consideration turn out to be an arguable case]

1993 No. MP 2862

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram : Godfrey J.

Date of judgment : 31 August 1993

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J U D G M E N T

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1. This is an application for leave to apply for judicial review of a decision of the Governor of Hong Kong made on 8th July 1993 whereby a sentence of imprisonment of eight years imposed on the applicant, Charles Warwick Reid, on 6th July 1990 by the Chief Justice of Hong Kong, in respect of an offence contrary to s.10(1)(b) of the Prevention of Bribery Ordinance, was remitted to a term of seven years imprisonment.

2. In passing sentence on the applicant, the Chief Justice made the following observations:-

"That he has given comprehensive and useful information to the I.C.A.C. at personal risk and risk to his family is not in dispute. However, this assistance, conspicuous and substantial though it may well have been, cannot conveniently be divorced from the evidence he undertakes to give for the Prosecution in a number of future prosecutions. Whilst some credit should be given for his co-operation in enabling the I.C.A.C. to at least bring charges against a number of suspects the full impact of his co-operation cannot be realistically weighed until he has actually given evidence. I would, therefore, give a nominal discount for one year for his co-operation, leaving it to the executive to reduce his term of imprisonment until after he has given evidence."

3. If the Chief Justice had stopped there no point could have been taken to justify an application for leave to review a decision of the Governor by which the Governor remitted one year of the applicant's sentence. However, the Chief Justice did not stop there. He went on:-

"If his evidence comes up to proof, I suggest that the executive might consider a reduction of three years from the sentence I am about to impose to be reasonable."

It is this last observation which has given rise to the contention in the present case that the decision of the Governor to remit the applicant's sentence by one year only, rather than by three years as suggested by the Chief Justice, is one which is a proper subject for review by this court.

4. It is elementary that this court will interfere with a decision of the executive only where it can be shown that the executive has acted illegally or improperly or irrationally. It is equally elementary that on an application for leave to apply for a judicial review, it is not appropriate for the court to go into the matter in depth. It has only to satisfy itself that the case is one that is fit for further investigation at a full inter partes hearing of a substantive application for a judicial review. I pointed out in my judgment in The Director of Immigration v. Ho Ming Sai, Civil Appeal 162 of 1992, unreported, that:-

"... since the purpose of requiring leave to be granted before a substantive application for a judicial review is allowed is simply to filter out hopeless cases, I think a more liberal test is required than that adopted by the judge [who had said that to obtain leave, the applicants must show that they have an arguable case]. In my judgment, the question which a judge has to ask himself at the leave stage is this: 'Does the material before me disclose what might on further consideration turn out to be an arguable case?'"

I added that if the judge asks himself whether there is an arguable case, he risks pre-empting questions which ought properly to be decided at the substantive hearing and not at the leave stage.

5. It was not suggested in the present case that the Governor acted illegally. Nor, I think, was it suggested that he failed to follow the proper procedure (if there be any) which might be applicable to the exercise by the Governor of the prerogative of mercy (which, it must be remembered, he did exercise here in favour of the applicant by remitting one year of his sentence) The case for the applicant therefore must depend on irrationality. I do not propose to adopt the emotive version of this test preferred by Lord Diplock in the Civil Service case [1985] A.C. 374 at p.410:-

"A decision 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."

It would be enough if there was any reason to believe that the decision amounted to an abuse of discretion, a decision suggesting that it is possible here that something might have gone wrong.

6. Can I form that view on the material before me?

7. The only authority cited to me in support of the applicant's case that the decision of the Governor ought to be reviewed was the decision of the Court of Appeal in R. v. Secretary of State, exp Doody [1993] 1 All ER 151. That was a complicated case into the details of which I need not go. At the risk of over-simplification, it seems that there the court was concerned with an application for a judicial review on proof that there had been a departure from a judicial tariff by the executive with no reason given for that departure. (That case, I am told, went to the House of Lords, but the decision I have been shown, as I have said, is that of the Court of Appeal.)

8. In the judgment of Glidewell, LJ at page 171 of the report, the Lord Justice said this:-

"In my judgment the Secretary of State, if he sets a tariff period which exceeds that recommended by the judiciary, is not under an absolute obligation to give reasons for departing from the judicial view. Nevertheless, if the disparity between the two periods is considerable and he gives no reasons, it may well be that his decision will be open to challenge by way of judicial review as being irrational. That in my view is the appropriate sanction."

On the basis of this judgment, Mr Dykes for the applicant advanced an argument that the disparity here between one year and three years was such as to justify leave being given for the applicant to apply for a judicial review of what the Governor had decided as being an irrational exercise of his discretion.

9. I have to say at once that it seems to me the case is no authority whatever to support Mr Dykes' argument in the circumstances of the present case. The Chief Justice, in what appears (in the experience of counsel before me at any rate) to have been a unique observation, without precedent in any of the authorities in England and Wales or in Hong Kong, suggested that in certain circumstances the executive might consider a reduction of three years from the sentence which the Chief Justice was about to impose. This is then a "one-off" case (as Mr Dykes accepted); not a case of departure from a tariff.

10. There is evidence before me that the executive did consider the suggestion; for I have been shown a letter dated 16th August 1993 written on behalf of the Governor by the Secretary of Security stating that the executive had indeed considered the reduction in sentence which the Chief Justice had suggested that it might consider. It follows that any expectation, legitimate or otherwise (induced, be it noted, not by the executive but by the Chief Justice) which the applicant might have held as to this suggestion being considered has in fact been fully met. The fact that nevertheless the executive takes in the end a different view from that of the Chief Justice is neither here nor there. Two reasonable persons may perfectly well come to different conclusions without either of them forfeiting his right to be regarded as reasonable.

11. For these reasons, I am bound to say (adhering to the view I initially expressed when I was asked to deal with this case on paper), that the applicant has simply failed to show any case fit for further investigation at a full inter partes hearing of a substantive application for a judicial review. Accordingly I must dismiss this application and refuse the leave asked. The Attorney General must have his costs of the hearing of this application today.

Representation:

Mr Philip Dykes, inst'd by M/s Haldane Midgley & Booth, for Applicant.

Mr Robert Tang, Q.C. & Mr Paul Shieh, inst'd by M/s Allen & Overy, for the Respondent (Crown).