Deacon Chiu and Another v. Attorney General

HCMP003601/1990

1990 MP No. 3480 & 3601

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Kaplan in Court

Dates of Hearing: 2nd-3rd, 7th-11th October 1991

Date of Handing down Judgment: 6th January, 1992.

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J U D G M E N T

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1. I have before me applications for judicial review made by Deacon Chiu and his son, David in respect of a decision of Mr. Peter Line, a Magistrate, given on the 17th October 1990 whereby he refused the Chius' applications for a permanent stay of the criminal proceedings brought against them.

2. It is common ground that what the Magistrate had to consider was whether, in the events that have happened, it was possible for the Chius to receive a fair trial. Despite the apparent simplicity of this question, the applicants' list of authorities contained 45 items and the respondent's 57. I mean no disrespect to the able arguments of all three counsel who appeared before me when I say that I have listened to seven days of closely reasoned arguments which at times have been somewhat technical. The cases that I have been referred to have come from England, Canada, Australia and United States of America.

This is a review.

3. I have been reminded time and time again that this is an application for judicial review, as indeed it is.I am therefore concerned with whether the learned Magistrate correctly applied the law to the facts which he found. I am concerned with the process and not the results in the sense that if he made no relevant errors of law, it matters not whether I would have decided the matter the same way. The distinction between a judicial review and an appeal on the merits must, at all times, be borne in mind.

4. In C.C.S.U. v. Minister for Civil Service (1985) 1.A.C. 374, Lord Diplock set out the ambit of judicial review in the following off quoted passage;

"Judicial review has, I think, developed to a stage today when without reiterating any analysis 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". ....

By "illegality" ... I mean that the decision-maker must understand correctly the law.that regulates his decision-making power and must give effect to it.

By "irrationality" I mean what can now be succinctly referred to "Wednesbury unreasonableness" ... 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....

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 denial of natural justice."

Jurisdiction

5. As appears from the above chronology, on the 18th April 1990, counsel for both Chius applied to Mr. Peter Line, a magistrate, for a stay of these charges on the grounds of abuse of process. These grounds included delay, ill-health of Deacon Chiu and loss of witnesses. This list is not exhaustive.

6. At the hearing on the 18th April 1990, Crown Counsel submitted to Mr. Line that he did not have jurisdiction, as an examining magistrate, to rule on allegations of abuse of process. He submitted that as Mr. Line was not exercising a summary jurisdiction, the correct forum for such complaints was the High Court. He cited authority in support of this proposition.

7. Mr. Line ruled on this submission in the following terms;

"Magistrate's Court does have jurisdiction to hear this application to stay or dismiss for an abuse of the process."

8. On 26th April 1990, the same Crown Counsel told Mr. White that the Crown wished to ask Mr. Line to review his decision on jurisdiction. That day the matter went back before Mr. Line, and it seems that the Crown Counsel conceded that he could not ask for a review. He stated that the Crown was left with applying for a writ of prohibition and he asked for a 90-day stay pending a judicial review. The case was adjourned pending a decision of the High Court on the Crown's undertaking to issue a writ and seek judicial review.

9. On 30th April 1990, solicitors acting for Deacon Chiu wrote to the Attorney General and stated that, in their view, it was clear on the authorities that a committing magistrate did have jurisdiction to deal with abuse of process. They asked for any authorities which supported the Crown's submission. They also asked to be given notice of any application by the Crown of an application for judicial review.

10. On the 8th May 1990, Crown Counsel wrote to counsel for David Chiu (copied to other counsel in the case) stating that, although he still insisted that the point was arguable, it was unlikely that the matter could be completed in 90 days. He added this;

"Because of the impact this must, of necessity have on the ultimate trial, the Crown proposes to now take the issue of jurisdiction de bene esse and to proceed to deal with your client's application to discharge, upon its merits.

11. On the 11th May 1990, the same Crown Counsel wrote to Mr. White, the permanent magistrate at Central Magistracy, and stated

"The Crown has come to the view that the delay involved in applying for judicial review would be excessive and has therefore determined to take the issue of the magistrate's jurisdiction to entertain an application to discharge on the basis of abuse of process, de bene esse, and to allow the defendants' application to be dealt with on their merits as soon as possible.

12. Dates were then fixed for the hearing of the stay application. Following several days of hearing, Mr. Line refused the Chius' application for a stay on 17th October 1990. Both Chius then applied for and were granted leave to apply for judicial review. The matter came before me in March 1991 and on 22nd April 1991, 1 ruled on an aspect of the case relating to Mr. Line's appointment as a magistrate. Following a successful appeal against my ruling and a refusal by the Privy Council to entertain an appeal therefrom, following an amendment to the Letters Patent, the matter was fixed to be heard by me commencing on 2nd October 1991.

13. At 4.31 p.m. on the 1st October 1991, a fax from the Attorney General was sent to both Chius' solicitors. The relevant paragraph reads as follows;

"We wish to give you notice that the Crown intends to raise with Kaplan, J. the jurisdiction of a magistrate to hear an application for a stay of proceedings on the ground of abuse of process. The following will be brought to the attention of Kaplan, J. for his consideration:

R v. DPP ex parte Sinclair 11th April 1991

(House of Lords) - copy enclosed ..."

14. On 2nd October 1991, Mr. Martin Lee, Q.C. invited me to permit him to take this point. Mr. Denis Chang, Q.C. for Deacon Chiu and Mr. Paul Loughran for David Chiu opposed this application.

15. Mr. Lee told me that prior to 11th April 1991, there was a body of cases from England which indicated that an examining magistrate did have jurisdiction to rule on allegations of abuse of process. The latest in this line of cases is R. v. Telford Justices ex-parte Badhan (1991) 2 WLR 866. Judgment was delivered by the English Court of Appeal, in that case on the 21st December 1990, and it was reported in the Weekly Law Reports on the 29th March 1991. However, on the 11th April 1991, the House of Lords handed.. down a judgment in R. v. DPP ex parte Sinclair (unreported) which held that a magistrate acting under the Extradition Act 1870 did not have jurisdiction to rule on allegations of abuse of process. Mr. Lee said that he wished to argue by way of analogy that the same conclusion applied to committing magistrates although the House' of Lords expressly reserved the point.

16. Mr. Lee submitted that there was sufficient linkage- between the functions of a magistrate acting under the Extradition Act, and a magistrate exercising an examining justice's function so as to make the decision in Sinclair, powerful authority for the proposition that an examining magistrate does not have jurisdiction to rule on abuse of process.

17. Mr. Chang submitted that Mr. Lee could not take this point because he had made no application for judicial review and thus, there was no process by which the point could be considered. He submitted that Mr. Lee could not by-pass the filtering process of Order 53, nor could he avoid serving the appropriate documents on relevant interested parties, such as Mr. Line. Mr. Chang went on to question how Mr. Lee could act for Mr. Line (as all believed he did) when at the same time he was alleging that Mr. Line had acted without jurisdiction.

18. Mr. Lee answered all this by pointing out that this was an issue which went to jurisdiction and thus, it should be taken up by the court once it had been pointed out. I agree entirely that if the issue was whether I had jurisdiction then it would be a matter which I would have to raise once I had spotted the point, or it had been raised, regardless of whether or not it had been referred to previously by a party to the proceedings. However, in this case my jurisdiction is not in issue. What is in issue is whether Mr. Line wrongly assumed jurisdiction to rule on abuse of process. In a normal situation, the Crown would have sought judicial review of that decision if it thought Mr. Line was wrong. That was clearly what the Crown intended to do until the correspondence to which I have already referred. By referring to the Latin phrase de bene esse, they cannot, so Mr. Chang submits, circumvent the provisions of Order 53.

19. Mr. Chang and Mr. Lee both rely heavily on the provisions of Order 53. The point with Mr. Lee now seeks to take is being taken 18 months after it was first raised and abandoned and 6 months after the House of Lords delivered their judgment in Sinclair. Mr. Chang insists that he should be entitled to argue that leave should not be granted due to the delay. The Chius, he says, have spent a lot of money in dealing with this matter which would have been rendered unnecessary if the point is allowed to be taken and is a good point.

20. I should add that, although I have heard Mr. Lee develop his submissions on the main point relating to jurisdiction, I have not heard Mr. Chang nor Mr. Loughran who steadfastly maintain that the point is not a good one, and that Sinclair does not go so far as Mr. Lee contends, and only harks back to an earlier decision of the House of Lords in Atkinson v. U.S.A. (1971) A.C. 197.

21. Having given this matter very careful consideration, I decided, and so ruled, on Monday, 7th October 1991 that I would not allow Mr. Lee to take this point unless he applied for and obtained leave to apply for judicial review of Mr. Line's decision of 18th April 1990 to the effect that he did have jurisdiction. When asked why Mr. Lee did not or would not apply for leave to apply for judicial review, he told me quite frankly that the Crown were anxious to avoid this step, because they were fearful that if an application were later to be made based upon the Bill of Rights the delay in so applying may be laid at the door of the Crown as opposed to being characterized as systemic delay. I regret to say that I found this reason insufficient and wholly extraneous. What might or might not happen hereafter is of no consequence to a decision whether the correct procedure has been adopted.

22. Mr. Chang relied upon a passage at page 352 in Sir William Wade's Administrative Law where he said this :-

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reasons. In any such case the "void" order remains effective and is, in reality, valid. It follows that an order may be void for one purpose and valid for another and that it may be void against one person but valid against another."

23. The simple fact of the matter in this case is that the Crown were minded to apply for leave to apply for judicial review, and for very practical reasons, they decided not to embark upon that course. Many months later, in view of the turn of events and, in particular, a new decision of the House of Lords, they wish to take this point before me. However, because of the fear of possible consequences, in possible subsequent proceedings, they have failed or refused to take the appropriate originating step to bring this point properly before this court. In my judgment, this decision is to be regretted.

24. I regret the impasse that has been reached, especially as in the light of the Court of Appeal decisions in Attorney General v. Alick Au (unreported, 3rd October 1991) and Tan v. Judge Cameron (unreported. 29th November 1991) it appears that there is no appeal from my decision to the Court of Appeal. This means that my ruling will not be able to be considered by the Court of Appeal. (I leave aside whether an application can be made to the Privy Council.) Furthermore, I regret not being able to decide this point because if the point is a good one, it would have the beneficial result of ensuring that the trial judge, and only the trial judge, is the person who can rule on whether the court's process is being abused. It will release magistrates from the burden of deciding these points and will thus obviate the need for judicial review of their decisions. All this adds to delay which is, after all, the very thing about which the defendants in this case are complaining. I doubt whether the House of Lords in Connolly v. D.P.P. (1964) 1254, ever imagined that decisions on abuse of process would be substantively argued out in Magistrates' Courts, and then all over again in proceedings by way of judicial review with all the delay that is thereby occasioned. The trial judge can, after all, decide these issues without any of the formalities or technicalities of Order 53, and what is more he can have the latest information before him without worrying about the reception of fresh evidence. In the present case, I was faced with an application to adduce fresh evidence in relation to the medical condition of Deacon Chiu. The trial judge would not have to worry about whether this can be received in order to challenge the decision of the magistrate given about a year ago. In medical cases, it is essential for the trial judge to have the latest information. On the assumption that jurisdiction does exist, it would be open to Deacon Chiu to start all over again in the light of his alleged deterioration since the magistrate last ruled on the matter. There is a danger that the criminal process can be brought into disrepute by collateral challenges of this nature.

25. On Monday, 7th October 1991, I told Mr. Lee that I would not allow him to take this point unless he applied for leave to apply for judicial review, an application which I would consider on its merits after hearing the grounds of opposition. Mr. Lee made no such application, and therefore, in those circumstances, I did not permit him to argue that a magistrate had no jurisdiction to rule on abuse of process. I therefore continued to hear this judicial review on the merits without further reference to jurisdiction.

26. To make this judgment intelligible, I must begin with a chronology. Regrettably, the parties could not agree on a joint chronology and thus I have been forced to plagiarize from both their versions in order to make a comprehensible whole.

CHRONOLOGY

1. 19.11.1982

27. Earliest date facilities were granted.

2. 30.12.1983

28. Earliest date stated in the charges.

3. 10.12.1984

29. Routine examination of Far East Bank (FEB) commenced by Commissioner of Banking (COB)

4. 31.12.1984

30. Year end audit of FEB commenced by Price Waterhouse (PW) auditors of FEB.

5. March 1985 - January 1986

31. Meetings between staff of COB, PW and officers of FEB including Deacon & Dick Chiu.

6. 7.10.1985

32. PW appointed by COB pursuant to Banking Ordinance to assist in examining bank accounts and transactions of FEB.

7. 23.10.1985

33. PW report to COB.

8. 23.1.1986

34. COB refers case to Attorney General's Chambers for investigation and possible prosecution.

9. 5.2.1986

35. Mr. Swift of ICAC appointed investigator.

10. February 1986 - December 1986

36. Examination by ICAC of numerous documents, analyses by accountants, preparation of ICAC internal reports and overseas enquiries.

11. January 1987 - June 1987

37. 100 credit files containing 5,000 documents of FEB obtained from COB. Analysis and Report.

12. 1.7.1987

38. Four additional ICAC officers appointed to assist investigation.

13. August 1987

39. Ernst & Whinney (EW) appointed to trace funds in over 100 accounts of FEB between 1982-1985.

14. September 1987 - April 1988

40. ICAC investigate over 200 companies and 150 individuals. Analysis of 16,000 bank documents. Witnesses interviewed.

15. April 1988

41. EW draft report prepared.

16. May 1988

42. ICAC analysis of EW report with view to considering search warrants.

17. 30-31.5.1988

43. Search warrants executed resulting in seizure of 20 filing cabinets of documents.

18. June - October 1988

44. Analysis of seized documents. Interviews of 55 potential witnesses in Hong Kong and 20 in Indonesia.

19. 5.10.1988

45. EW complete detailed draft report.

20. 31.10.1988

46. Deacon Chiu interviewed under caution and arrested.

21. 10.11.1988

47. Deacon Chiu charged with two offences of conspiracy to falsely account. Appears at court and is bailed.

48. Tammie Tam arrested in Fiji and extradition requested.

22. 10.11.1988 - 2.1.1989

49. Preparation of documents to support extradition of Tammie Tam.

23. 30.12.1988

50. Warrant of arrest for Dick Chiu.

24. 2.2.1989

51. David Chiu interviewed under caution and arrested.

25. 9.2.1989

52. David Chiu charged with an offence of conspiracy to falsely account.

26. 10.2.1989

53. David Chiu appears in Magistrate's Court and is bailed.

27. February- June 1989

54. ICAC continue overseas enquiries and interviews with a view to additional charges.

28. 13.6.1989

55. Both appear at Magistrate's Court. Crown request 2 1/2 months adjournment. Defence object. Crown undertake to provide defence with all statements and documents relevant to finalize charges before next appearance on 29th August 1989. Defence express concern.

29. 21.8.1989

56. Crown serve new charges. 12 further for Deacon Chiu and two further for David Chiu.

30. 29.8.1989

57. Prosecution seek and obtain adjournment until 17th January 1990.

31. 11.1.1990

58. Service of committal papers.

32. 17.1.1990

59. Return day fixed for 18th April 1990.

33. 11.4.1990

60. House of Lords hand down decision in Sinclair.

34. 18.4.1990

61. Defence application for stay of proceedings on grounds of abuse of process. Mr. Line rules that he does have jurisdiction to rule on this issue despite Crown argument to contrary.

35. 26.4.1990

62. Case adjourned pending Crown's appeal to High Court challenging Magistrate's ruling that he did have jurisdiction to rule on abuse of process.

36. 8.5.1990

63. Crown state they will not seek judicial review of Mr. Line's ruling on jurisdiction.

37. September & October 1990

64. Hearing before Mr. Line on abuse of process.

38. 17.10.1990

65. Mr. Line refuses to stay proceedings.

39. 22.4.1991

66. I ruled that Mr. Line was not properly appointed.

40. 14.5.1991

67. Court of Appeal entertain and allow appeal and shortly, thereafter Letters Patent are amended.

41. 22.7.1991

68. Privy Council refuse leave to appeal in light of amendments to Letters Patent.

42. 2.10.1991

69. This application for judicial review of Mr. Line's refusal to stay the proceedings commences before me. Mr. Martin Lee, Q.C. asks me to rule that in the light of Sinclair, Mr. Line had no jurisdiction to rule on claims of abuse of process. In absence of an application by the Crown for leave to apply for judicial review of Mr. Line's decision, I refuse to hear argument thereon.

43. 11.10.1991

70. Submissions conclude before me.

44. 29.11.1991

71. Court of Appeal hand down judgment in Tan v. Attorney General.

45. 10.12.1991

72. Further oral argument addressed to me in the light of the Tan case.

Reasons

73. Some play has been made of the fact that the learned magistrate made a false start when he dealt with the question of reasons. What he said was this;

"I have given careful thought as to what I should now say. There is no requirement upon me to give reasons either now or later in respect of the major part of these applications (I leave aside the jurisdictional argument), as there is if I were deciding guilt or innocence in summary proceedings, In such summary cases the court on appeal looks at the reasons why a magistrate reaches a conclusion. In a case such as this, the applicant's remedy is to apply for a prerogative writ in judicial review proceedings. The magistrate's reasons are not called for in the High Court. The applicants re-present their case. They can use the material collected and recorded in the lower court. A great deal of effort has been made by all concerned in this case to collect and collate such material. It is that material and not my reasons with which a judicial review will be concerned. There is much to be said therefore for the view that a magistrate should decline to give reason in this situation.

On the other hand, courts readily understand the natural desire of those accused to be kept informed of important decisions touching their case. The refusal to explain can foster a sense of injustice perhaps the more so when there are several issues raised and different possible bases exist for deciding them.

The answer is, I believe, a compromise. I do not intend to deliver a judgment in the sense that lawyers use the word. I am not going to debate the law, indulge in close reasoning or make any extensive finding of facts. I do not intend to create a document which would be dealt with as if it were a statement of findings under section 114 of the Magistrates Ordinance. The design of what I say now is strictly limited and the limit I set is to say enough to the defendants in order to allay any potential sense of grievance the short course may cause. This is a practice that has been adopted by magistrates in Hong Kong at the conclusion of Extradition Proceedings."

74. It is common ground between the parties, and I agree, that this passage contains an error. A Magistrate does have to give reasons. He does not have to write a long and detailed judgment, but he has to say enough, so that the parties know how and why he arrived at the decision at which he arrived. In a judicial review, the appellants do not re-present their case. They are limited to establishing that on the material before the Magistrate there was in his decision, some illegality, irrationality or procedural unfairness. It is because of this very limited and special nature of judicial review proceedings that I refused to look at medical evidence that was not before the Magistrate. It was for the same reason that I would not permit reference to the Bill of Rights which was not in force at the time Mr. Line considered these matters.

75. In relation to the giving of reasons, I can do no better than to reiterate what Cons, J.A. (as he then was) said in Ever Finance Ltd v. Yuen Wai-Pin, Civil Appeal 53 of 1982 - 23rd June 1982, and in Allen Pat Yung Waung v. Sir Y.K. Pao, Civil Appeal 45 of 1984 - 18th May 1984.

76. In Ever Finance Limited v. Yuen Wai-pin, Civil Appeal No. 53 of 1982, 23rd June l982, he said:

"The giving of reasons is one of the fundamentals of good administration: Breen v. Amalgamated Engineering Union [1971] 2 QB 175 at 191. Even more so is it one of the fundamentals of a good system of justice. Lord Denning would have thought that went without saying. And it matters not whether that decision is final or interlocutory or in what particular court it is given. The principle holds good for all levels of adjudication. Parties are entitled to know by what the judge was influenced, particularly the party who has lost. As Mr. Megarry (as he then was) said:

'...no defeated litigant should leave an English court with the feeling that the judge has failed to appreciate his case. This view is reinforced by the fact that under the common law system the judgment is no mere formal document, but a reasoned speech, often of considerable length, explaining just what are the facts, the issues, the rival contentions and the reasons for the result.' (Lawyer and Litigant in England, Hamlyn Trust Lecture, 1962.)

This does not mean that the judge must reduce his reasons to writing. In the High Court there will usually be solicitor or counsel present who will take a note of what the judge says, and should it ever afterwards be necessary to refer to it, counsel will submit that note to the judge for his agreement. Nor does it mean a lengthy speech on each and every occasion. That would be quite unnecessary in most interlocutory matters, where all that is needed is more indication of the 'why' as well as of the 'what'."

These observations were repeated by Sir Derek Cons in Allen Pat Yung Waung v. Sir Y.K. Pao, Civil Appeal No. 45 of 1984, 18th May 1984, where he added the following;

"Should [the judge] in any instance not give that indication [a general indication of what was in his mind] we consider it to be the duty of counsel, and in particular if there is a possibility that the matter will be taken further, to invite the judge to do so."

77. However, in the present case, the learned Magistrate having said that he need not give reasons decided to compromise. What, in fact, he did was to deliver a written judgment of 16 pages. In this judgment, he gave sufficient reasons to satisfy the observations of Cons, J.A. above-cited. Whether he made any reviewable error is a matter which I must go on to consider.

78. Merely because the learned Magistrate said he need not give reasons but then went on to give them cannot form the basis of a reviewable complaint. He was clearly wrong to say what he did, but he said one thing and did another. I am only concerned with what he said as to why and how he came to his decision. In my judgment, unfortunate as those introductory remarks were, they are irrelevant to what in fact happened. I do not see that the applicants can make any complaint when, in fact, reasons were given. In my judgment, there is nothing in this complaint.

The Magistrate's reasons for dismissing the application

79. As to the law, the learned Magistrate adopted the submission of Mr. Scrivener, Q.C. who then appeared for Deacon Chiu. He summarized the law thus;

"The defence are entitled to rely on both presumed a (sic) specific prejudice and justification of the delay is not an end of the application if the defendants have been prejudiced such that they cannot have a fair trial or such that it is offensive to justice to allow the case to proceed."

80. He then recorded that the Crown conceded that the delay called for an explanation and a justification by them. He referred to the multitude of matters that fell to be considered when considering delay. One aspect to which he referred was the delay caused in relation to the proposed extradition of Tammie Tam - a delay admittedly caused by an error on the Crown's side and for which the defendants were not to blame. He reminded himself that the Crown had the burden of justification. He found no evidence of deliberate delay. He considered the question of individual delays and concluded;

"The finding I make, and I do not pretend that it is done with confidence, is that there have been periods of delay which the prosecution has failed to justify and that the delay is of a period between one and two years. I cannot be more specific."

81. Mr. Martin Lee, Q.C. does not seek to challenge this finding.

82. The learned Magistrate then went on to consider prejudice. He correctly reminded himself that each case depends on its own facts which is an observation which I bear well in mind when considering all the authorities that have been cited to me. He pointed out correctly, in my judgment, that delays, sometimes substantial, inevitably occur in complex commercial fraud cases, especially when they are perpetrated over a number of years. He made the following observations with which I entirely agree;

"Parties to deliberate schemes by their nature designed to hide criminal activity who put in issue the facts will not so readily be found to be prejudiced by delay."

83. The learned Magistrate next pointed out that the criminal activity in this case occurred between 1983 and 1985. He said that if a trial had come on in 1988, no one could criticize it. The inevitable delay during that period would have already made its mark on memory span which in that scenario would have been four to six years. He then pointed out that the memory span was now more likely to be seven to nine years. He said that whatever had happened in this case, it would never be one where there was any opportunity of immediacy of recollection.

84. The learned Magistrate then asked himself this question.

"... whether the extra delay has so significantly damaged memory that a fair trial could not take place. The answer is no, it has not." (Emphasis added.)

85. This approach, namely one concentrating on the extra delay as opposed to the total delay is strongly attacked by Mr. Denis Chang, Q.C. for David Chiu, and to this point I will have to return.

86. The learned Magistrate then reminded himself that prejudice can be presumed or inferred due to the passage of time in this case. He then said that the prejudice so inferred was insufficient in quality or extent to prevent a fair trial. He then bore in mind that this is a case of complex documentation and inter-related transactions. The bulk of the documents would, he said, deal with the movement of funds and the real issues would relate to participation and to why the funds were moved. The nature and preparation of the scheme would be vital.

87. He then considered missing witnesses and concluded that the absence of Dick Chiu and Tammie Tam from Hong Kong dial not impress him. He pointed out that the absence of a co-defendant should not normally lead to a stay of proceedings. As to other witnesses, he concluded that he was not satisfied that the testimony was sufficiently relevant.

88. He then turned to consider Deacon Chiu's health. It was not disputed that Deacon Chiu is a very sick man. It was submitted that Deacon Chiu was too sick to cope with a trial. It was also submitted that his ill health had been exacerbated by the stress caused by the case and its delay. The learned Magistrate rejected the submission based on ill health, but he made clear that if Deacon Chiu was too ill to cope with the actual hearing, a separate submission could be made to the trial judge. Having not found this aspect of the case easy, he concluded, nevertheless, that Deacon Chiu's ill health did not warrant a permanent stay.

89. For all these reasons, Mr. Line declined the application.

90. Before turning to the law, I should make the following clear. Mr. Line heard medical evidence about Deacon Chiu's condition. I was asked to admit fresh medical evidence which I refused because it was not relevant to the state of affairs as they existed when the Magistrate was considering this matter. However, I have been told that since the hearing in the Magistrates Court, Mr. Chiu has had a kidney transplant and thus there is a new dimension to the medical condition. I know not whether it makes it worse or better. I have to consider the reasons which the learned Magistrate gave based upon the evidence as it then stood before him, for that is the very basis of these judicial review proceedings. If the matter goes back to Mr. Line, he can hear a fresh application based on the new medical condition. If this matter goes to trial, the judge has ample jurisdiction to deal with the medical condition of Deacon Chiu and he will not be fettered by the nature of these proceedings, but will have the benefit of the latest medical evidence.

The Law

91. In George Tan v. Judge Cameron & the AttorneyGeneral, Barnett J. analysed all the relevant authorities in this area and summarized them in a most helpful manner. That case went on appeal and the Court of Appeal followed another division which had heard an appeal in Alick Au v. Attorney General and decided that there was no right of appeal to the Court of Appeal from a High Court Judge's ruling on a judicial review in a criminal cause or matter. Such proceedings, they said, were in the nature of a criminal cause or matter. Having decided that point unanimously, the Tan court then went on to consider the merits of the appeal and in the course of so doing, Yang, C.J. (with whom Bewley, J. agreed) confirmed the way in which Barnett, J. had summarized the law. I propose to set out Barnett J.'s approved analysis as it will save me referring to most of the cases therein referred to. I take the quotation which starts from page 24 in the judgment of the learned Chief Justice.

" From the authorities, I think the following principles may be extracted:

(1) A decision by the Attorney General or prosecuting authority to prosecute a person is not reviewable. (R v Harris CA 72 (1990).)

(2) Once a person has been charged and is before the court, the court has a power to consider whether its procedure is being abused and to stay the proceedings in appropriate cases. (Jago v District Court of New South Wales [1989] ALR p. 577.)

(3) To stay proceedings or refuse jurisdiction is a grave and serious matter (Harris); is very strictly confined (R v Oxford City Justices ex parte Smith [1982] 75 CAR p. 200); and should be used only in a clear case. (R v Bow Street Stipendiary Magistrate ex parte Director of Public Prosecutions (1990) 91 CAR 200, commonly known as 'Cherry's case'.) There will be few occasions where it will be appropriate to intervene. (R v Forest of Dean JJ ex parte Parley 318 TLR 16 April 1990.)

(4) Delay that has occasioned, or will occasion,^-prejudice in the preparation or conduct of the defence is a ground for exercising the court's power to stay. (R v Derby Crown Court ex parte Brooks 80 CAR 164.) The relevant period of delay dates from commission of the alleged offence. (R v Sunderland Magistrate's Court ex parte Z [1969] CLR 56 and R v Telford Justices ex parte Badhan [1991] 2WLR p. 866.)

(5) Where delay is substantial, prejudice will be presumed and the prosecution will have to rebut that presumption. (Cherry's case)

(6) "The ultimate objective is to ensure that there should be a fair trial according to law, which involves fairness both to the defendant and to the prosecution." (Sir Roger Ormrod in Derby Crown Court p. 169.) This involves balancing the interests of the accused with the community's interest in seeing an accused person brought to trial. (Jago's case.)

(7) In carrying out that exercise, when based upon delay, the court should consider five factors:

(a) The length of the delay.

(b) Any reasons giv en by the prosecution to justify a delay.

(c) The defendant's responsibility for, and attitude to, the delay.

(d) The proven or likely prejudice to the defendant, including any period of lengthy pre-trial custody and the defendant's health.

(e) the public interest in disposing of serious criminal charges and the conviction of those guilty of crime.

Those five factors I derive principally from Jago and also from Bell v Director of Public Prosecutions of Jamaica (1985) 2 All ER p. 585. Of those five, factors

(d), prejudice and (e), public interest are the most important. I do not say that that list is exhaustive or constitutes an inflexible code. The Court should, of course, weigh any and all relevant material and come to a proper judgment."

With respect I adopt the Learned Judge's analysis."

92. Both counsel before me accepted this analysis save that Mr. Lee had reservations concerning the second sentence in (4), namely that

"The relevant period of delay dates from commission of the alleged offence."

93. Mr. Lee submits that this passage needs refining to cater for a case where an accused person has hidden his criminality for a long time. He submits that the judgment of the Court of Appeal in Tan on this aspect of the case was obiter as they had unaminously decided that they had no jurisdiction to hear this appeal.

94. I have read and re-read Badhan & Ex parte Z and am not satisfied that paragraph (4) of Barnett, J.'s approved formulation is incorrect. If there were no more to an application, such as this, than that a defendant complained that he was not found out for a number of years, I doubt whether, save in the most exceptional circumstances, a court would consider his application based upon delay. However, once proceedings are instituted and then a delay occurs, the court considering an application such as this, must look at the totality of the delay. (Some analogy can be drawn by the way in which the court approaches applications for dismissal for want of prosecution in civil matters. No delay can be at leged while the limitation period is still running, but once delay occurs after the institution of proceedings the totality of the delay is considered by the court.)

95. In Tan, both the Chief Justice and Silke, V-P, cited with approval a passage from the judgment of Taylor, L.J. in R. v. Buzalek (Court of Appeal unreported 27th February 1990) where the learned Lord Justice said;

"It is important to distinguish between the sort of case in which what is going to be in issue at the trial is the recollection of witnesses about some. event unsupported by documents and a case which largely (like this one) turns upon the documents. If after 6 1/2 years a case is going to have to turn on what witnesses saw in an affray, or in the course of an assault, or in the course of some road accident, then clearly the passage of time is going to be much more prejudicial than it is if there are documents indicating what was sent from one party to the other and what one party was saying to the other at the time. The learned judge bore that matter in mind."

96. The learned Magistrate's ruling contained statements consistent with this approach.

97. In my judgment, he was correct to do so because this case is not one where immediacy of recollection is crucial. As is usual in this sort of case, the actual movement of money will not be in issue, but the purpose behind it and who gave instructions will. Mr. Lee has pointed out that Mr. Deacon Chiu has made his position clear during the course of interviews when he said that he knew nothing about these matters and left it all to others. If that view is accepted by the jury or might be true, then it is unlikely that Mr. Deacon Chiu will be found guilty of dishonesty. I wish to make it clear that I am not saying that this case depends 100% on documentary evidence because that will be most unlikely in any case. Mr. Chang has attempted to show the important part that oral evidence will play in this case. Whilst not wishing to conclude that oral evidence will be wholly unnecessary, I think that it will play a subsidiary role to that of the documentary evidence.

98. I now turn to consider whether the learned Magistrate correctly applied the law as set out by Barnett, J. and as approved by the Court of Appeal in Tan.

99. He clearly did not take the whole period of delay into account because as Mr. Chang has rightly pointed out, he concentrated on the extra delay caused by the prosecution, namely the period of one to two years. He was wrong about that because he should have considered the totality of the delay. Whether this error should result in the quashing of his decision, I will consider later.

100. The learned Magistrate then correctly reminded himself that prejudice can be presumed or inferred from the passage of time. He then went on to say that the presumed prejudice was not of sufficient quality or extent to prevent a fair trial. There is some force in Mr. Chang's argument that this was an incorrect approach. In one sense, he telescoped two stages. He should have asked himself the question whether the prejudice which he ought to have inferred, and did infer, had been rebutted by the prosecution. Had he asked himself that question, it is perfectly plain to me that he would have answered it in the affirmative. He had already made the point that this was very much a document's case which made it easier to recollect what happened because of the help that contemporanous documents would give. Although he did not specifically mention this matter, I am confident that he had in mind the nature of Deacon Chiu's defence expressed in statements before him to the effect that he left matters to others.

101. It is quite clear that the Magistrate realized that he had to undertake a weighing exercise bearing in mind the need to consider fairness to both sides.

102. As to the five factors involved, he clearly took into account the length of delay although he concentrated far too much on the extra delay caused by the prosecution.

103. He found the delay of one to two years to be unjustified. Although the defendants were not responsible for any delay caused after they had been charged, it would be unrealistic to ignore the time it took to investigate these complex matters that have given rise to these charges. The Magistrate did not ignore these factors.

104. As to missing witnesses, I agree entirely with the Magistrate that this aspect of the matter was not made out. He had the point clearly in mind and rejected it as would I.

105. Clearly, Deacon Chiu's ill health troubled the Magistrate as it would trouble any judge. He heard medical evidence tested, as it was, by cross-examination. I cannot possibly say that he approached the medical evidence in the wrong manner. As I have already stated the trial judge has ample jurisdiction to deal with the question of ill health. The next stage of this case will be a committal and there is nothing to stop applications being made to the Magistrate in relation to Deacon Chiu's medical condition. The Magistrate will then have the benefit of up-to-date medical evidence which will show what has happened since the matter was last before him and will deal with the effect of the transplant of which I have already been told.

106. The learned Magistrate gave careful consideration to Deacon Chiu's medical condition and I do not consider that he approached the matter on a wrong basis. The final decision was for him and not for this Court.

107. As to the final balancing exercise, I do not see how any Magistrate could have come to any other decision on the totality of the material in this case.

108. I now ask myself whether I should quash the decision because the learned Magistrate directed his mind to the extra delay as opposed to the totality of the delay. I should also ask myself whether I ought to quash the decision because of the way in which he wrongly dealt with the question of reasons.

109. In Tan, the learned Chief Justice said this;

"However, it is none the less open to a court on review even where it is shown that a tribunal was in error to conclude that on a proper approach the tribunal must have arrived at the same conclusion."

110. In R. v. Wolverhampton Coroner ex parte McCurbin (1990) 1 WLR 719 at 730/1, Woolf, L.J. echoed similar sentiments when he said;

"The position here is that, in the case of any application for judicial review, the remedy is discretionary. If, albeit there has been a misdirection but the misdirection. has not affected the outcome in any way, the court were to intervene, they would, in my view be misusing judicial review. Judicial review is required to put right a situation where things have gone wrong and an injustice requires to be remedied."

111. I am quite satisfied that if Mr. Line had directed his mind to the total period of delay and took into account the inevitable time it took to investigate this matter and bore in mind the time lost by the prosecution, he would still inevitably have come to the same conclusion, namely that a stay was not justified on this material. The same, of course, applies to his initial error in relation to the giving of reasons and the manner in which he dealt with the question of rebuttal. Such errors as were made would not justify me in exercising my discretion to grant the relief sought.

112. I am further asked to say that the Magistrate's decision was Wednesbury unreasonable. In my judgment, such argument is untenable.

113. I was supplied with many written submissions which attempted to put the same points in a number of different ways. I mean no disrespect to counsel when I say that this approach at times obscured the real issues. The law is now plain and I have to follow the Court of Appeal ruling in Tan. Insofar as it is said to be obiter, I think that it correctly approves the analysis of Barnett, J. which was not seriously in dispute before me. I have not cited copiously from the numerous authorities because I believe the principles have been correctly distilled. I am quite satisfied that Mr. Line was entitled to come to the conclusion that he did on the material before him. Such errors of approach, as I have found to exist, do not in any way justify quashing his decision, as I am satisfied that had he directed himself in a proper manner he would have still been bound to arrive at the same conclusion.

114. In my judgment, what is now required in this case is for it to go to a committal as quickly as possible. If a paper committal is not requested then a full committal should be set down as quickly as possible bearing in mind that these defendants are complaining about delay. If a paper committal is acceptable then the matter should be fixed for trial as soon as reasonably practicable given the delays complained of and the subsequent delay inevitably caused by these proceedings themselves. These defendants complain about delay and these complaints will soon sound hollow when the delay increases by virtue of any further applications which the defendants may be advised to take. Now that this application for a stay has been rejected and that rejection has been upheld on review, what is required is to get this case on for trial so that the matter can be disposed of on the merits, one way or the other, in the interests of justice and of all parties concerned.

115. In the circumstances, therefore, I propose to dismiss both applications for judicial review and I propose to make a costs order nisi in favour of the prosecution against both applicants, save for the first 2 days which were spent on the jurisdiction point and should be the Applicants' costs.

Representation:

Appearance

Denis Chang, Q.C. and Johnny Mok instructed by Cheng, Yeung for Deacon Chiu.

Mr. Paul Loughran instructed by K.K. Chu & Partners for David Chiu.

Martin Lee, Q.C., Joseph Pethes and M. Chan instructed by the Attorney General's Chambers for the Respondent.