In Re Tin Sau Kwong

HCMP002998/1995

1995, M.P. No. 2998

HEADNOTE

TIN SAU KWONG was charged with 4 offences of conspiracy - he elected to have committal proceedings. At the commencement, the Crown sought to withdraw the charges and substitute others - TIN having been charged also with conspiracy to murder and to pervert the course of justice. Counsel submitted that the magistrate had no jurisdiction to permit withdrawal and that the Attorney General should enter a 'nolle prosequi'.

The magistrate permitted the withdrawal of the 4 charges and the substitution of new charges.

On an application for leave to move for judicial review HELD refusing leave,

1. A magistrate does have jurisdiction, in his discretion, to permit the withdrawal of charges both in a trial and committal proceedings.

2. This decision was not flawed, nor unreasonable.

3. The Court does not, save in exceptional cases, supervise the Attorney General in the exercise of his function of criminal prosecution.

1995, M.P. No. 2998

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Sears in Chambers

Date of hearing: 13 October 1995

Date of delivery of judgment: 13 October 1995

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J U D G M E N T

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1. This is an application for leave to move for judicial review of a decision of Mr. Li, a magistrate and also a declaration concerning the Attorney General. I should give my reasons briefly in case the applicant wishes to renew this application before the Court of Appeal and in deference to the submissions of Mr. Chandler.

2. The background is that Tin Sau Kwong, currently in custody, was charged with four offences: conspiracy to export unmanifested cargo, conspiracy to defraud, and two of perverting the course of public justice, contrary to Common Law and he elected a committal proceeding before the magistrate. The day was fixed in accordance with the Magistrates Ordinance and the Crown then applied to withdraw those charges and to substitute other charges. The applicant, having in the meantime been charged with two new offences of perverting the course of justice and also conspiracy to murder. It is not necessary to set out the factual background, I am only concerned with the point of the law whether a magistrate has jurisdiction to permit the withdrawal of charges, which he did.

3. There is no doubt from the decision of Kempster J., as he then was, in Attorney General v. Wong Kwai Lok [1984] HKLR 364 that in a trial such a withdrawal can occur.

4. In my judgment, when one looks at s.15 of the Ordinance which permits the Attorney General in his discretion to enter a 'nolle prosequi' when charges are withdrawn, such a decision applies to committal proceedings as it does to a trial. The Attorney General decided not to enter a 'nolle', that was a matter for himself.

5. In my judgment, the magistrate did have jurisdiction here to withdraw the charges. I consider that he has a discretion. In some instances he may require the Attorney to enter a 'nolle', in this case he exercised his discretion not to do that. It is said that this is 'Wednesbury' unreasonable, I can find nothing in that argument.

6. In my judgment, I can see no way the discretion was flawed and it was not, in my view, unreasonable, so this Court cannot interfere. As far as the relief sought against the Attorney General, namely a declaration that it was an abuse of process for him to re-charge the applicant, there is clear authority that this court has no jurisdiction to supervise the Attorney General in his prosecution work. (See for example Tang Yee-chun v. A.G. [1988] 2HKLR 408, and Keung Siu-wah v. A.G. [1990] 2HKLR 238). As I said in Tang Yee-chun and approved by the Court of Appeal in Keung Siu-wah.

"In the light of more recent authorities, in my judgment a court can only intervene if the Attorney General's decision is initially justiciable and then it must be of such a nature as could be classified as 'outrageous'.

It is not for the court to tell the Attorney General what to do or the manner in which he should do it. It should avoid either influencing or interfering with the criminal process. It is the duty of the Attorney General to prosecute those who break the law and he should be permitted to exercise that public function without being answerable to the court."

7. I refuse leave both for the application for certiorari and the application for the declaration.

Representation:

Mr. J.P. Chandler instructed by Haldanes for the Applicant.