Gerald Arthur Harknett v. R.B.Venning Esq Permanent Magistrate

HCMP001345/1983

IN THE HIGH COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

Coram: Hon. Liu, Jackson-Lipkin & Barnes JJ. in Full Bench

Date: 25th July, 1983.

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JUDGMENT

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Liu J.

1. On the 12th March pursuant to leave granted, the Crown applied for an order of certiorari.After the commencement of the hearing of these proceedings, counsel for the suspect drew the court's attention to O.53 r.9(2) which reads as follows:-

"Where the relief sought is or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or record unless before the hearing of the motion or summons he has lodged with the Registrar a copy  thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the court hearing the motion or summons."

Rule 9(2) envisages alternate courses in two forms: One of time,failing which an explanation. On behalf of the applicant, Mr. Graham fairly conceded that the applicant could not satisfy O.53 r.9(2). Counsel offered no explanation contemplated by the latter part of the sub-rule. ,

2. At the conclusion of the submissions advanced on behalf of the applicant, I did not find it necessary to call upon counsel for the suspect and the respondent. Suffice it for me to say that O.2 r.1 of the Rules of the Supreme Court does not override the latter requirement for an explanation by O.53 r.9(2). Under O.53 r.9(2), the Crown may not question the validity of the order or record of the learned Magistrate unless a verified copy thereof was lodged before the hearing or unless the Crown can account for its "failure to do so to the satisfaction of the Court". O.53 r.9 (2) provides its own escape from a failure to lodge the document before the hearing, and no non-compliance may otherwise be excused by O.2 r.1 in the face of the total lack of any satisfactory explanation. Furthermore, these are, as expressed in the sub-rule, pre-requisites the non-fulfilment of which would curtail the Crown's right to "question the validity" of the order or record sought to be impugned, whether or not the proceedings in this motion are to be taken as merely irregular or a nullity. Even if the Crown were now to be granted an indulgence for lodging the requisite document out of time, I still cannot see how it could then be said that the Crown. had lodged the same "before the hearing of the motion". Clearly, O.2 r.1 is not intended for curing and cannot cure the inhibition brought about by non-compliance with O.53 r.9(2).

3. Speaking for myself, I am not prepared to accede to the application made on behalf of the Crown for the introduction of the affidavit. Mr.Graham has intimated that his application, if refused or not acceded to, would not bring these proceedings to an end but that the Crown is minded to seek to amend the motion for substituting the prayer for an order of certiorari with that for a declaration. I need only say at this stage that the application made on behalf of the Crown cannot be acceded to, and I would refuse it. Barnes J.

4. My decision is based on a slightly different ground. As my Lord President has just mentioned, O.53 r.9 prescribes two conditions precedent to an application such as this proceeding. One is that a copy of the order sought to be impugned should be filed before the hearing and the other is that an account must, be given to the satisfaction of court for the absence of such a copy. Mr. Graham concedes that he is unable to give an account in accordance with the second limb but he has argued that the failure to comply with the time requirement of the first limb is an irregularity such as that envisaged by O.2 and he asks that this non-compliance be treated as an irregularity and the court exercise its discretion and allow him, give him leave to file the document out of time. Now, without considering, without deciding whether such an application could succeed by virtue of O.2, I base my decision on the assumption that it does apply but go on to say that in the circumstances of this case, I would exercise my discretion not to give the applicant leave to file the document out of time, the chief reason being that, in this case, although the proceedings specifically require the filing of a copy of the decision sought to he impugned before. the hearing, not only did the applicant not file a copy, but did not even, apparently, obtain a copy of that decision before launching these unusual proceedings. For that reason, therefore, I would exercise my discretion so as not to grant leave to file the document out of time.

Jackson-Lipkin J.

5. For the reasons given by my brother Barnes, I agree that this application should be dismissed.

Representation:

Mr. Peter Graham and Mr. D. Kiltour, Crown Solicitor for the Applicant.

Mr. Sedgwick, Amicus Curiae

Ms. F.H.B..Quan instructed by Messrs. P.K.H. Wong for passport holder.