Yeung Chun Pong and Others v. Secretary for Justice

HCAL 22/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 22 OF 2005

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BETWEEN

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Before: Hon Reyes J in Court

Date of Hearing: 14 March 2005

Date of Judgment: 15 March 2005

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J U D G M E N T

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I.  Introduction

1.The main issue before me is whether in committal proceedings a magistrate has jurisdiction to consider a plea of autrefois acquit.  If I find that the magistrate has no power, there is a subsidiary question whether the Court of First Instance should consider the plea at this stage.

II.  Background

2.In March 2002 Yeung, Tse May Wah (TMW), and Chik were tried in a Macau criminal court for 2 offences: illegal bookmaking and money laundering.  Both charges related to Hong Kong racing fixtures in 1999. 

3.The gist of the laundering charge was that the three (among others) recycled the proceeds of their bookmaking operation through accounts intended for the receipt of monies from licensed casino activities.  The three were convicted of illegal bookmaking, but acquitted of money laundering.

4.In November 2003 Yeung, Tse Kwai Ching (TKC), and TMW were charged in Hong with conspiracy to deal with the proceeds of an indictable offence contrary to the Crimes Ordinance (Cap.200) (CO) and Organised and Serious Crimes Ordinance (Cap.455) (OSCO). 

5.The particulars of the charge were that between 1 September 1998 and 30 June 2000 the three used certain Hong Kong bank accounts to deal with the proceeds of an indictable offence. TKC is Yeung's wife.  TMW is TKC's sister.

6.On 21 September 2004 Chik was similarly charged by the Hong Kong police.   

7.On 24 January 2005 the charges against all of the applicants were amended. 

8.The amended charge against Yeung, TMW and Chik was that, contrary to CO ss.159A and 159C and OSCO s.25(1), between 30 June 1998 and 3 September 1999, they conspired with others to use Hang Seng Bank A/C No.275-1-076874 (in TMW's name) to deal with $216,152,319, knowing or having grounds to believe the monies represented proceeds of an indictable offence. 

9.The amended charge against TKC was that, contrary to the same provisions, between 27 August 1999 and 5 June 2002, she conspired with Yeung, TMW and Chik and others to use Hang Seng Bank A/C No.275-8-079-095 (in TKC's name) to deal with $182,466,688, knowing or having grounds to believe the monies represented proceeds of an indictable offence.

10.On 25 January 2005, at still ongoing committal proceedings in the Eastern Magistracy, the applicants' lawyers submitted that the magistrate (Mr. Ian Candy) should not proceed with the informations laid against them.  Alternatively, the lawyers invited the magistrate to stay the proceedings.

11.The lawyers relied on autrefois acquit.  They contended that the amended charges were based on substantially the same matters on which the applicant had been convicted or acquitted of offences in Macau.

12.The magistrate ruled that he had no jurisdiction to hear an application for dismissal or stay of committal proceedings on the ground of autrefois acquit.  He had no power to decide on the application until the prosecution had decided whether the charges were to be tried by him, the District Court or the Court of First Instance.

13.Although expressing dissatisfaction with the delay in the conduct of the case, the magistrate adjourned the proceedings for 3 more months at the request of the prosecution.  He warned that further applications for adjournment might not be granted.

III.  Discussion

A.  Preliminary issue

14.Before examining the magistrate's jurisdiction, I deal with an initial question of locus.  

15.TKC was not tried by the Macau court.  Autrefois acquit cannot arise as far as she is concerned.  Therefore, I do not believe that TKC has locus to maintain these proceedings.

16.Mr. Dykes SC (appearing for the applicants) submits that, if the 3 other applicants succeed on autrefois acquit, certain evidence would be inadmissible on a trial of TKC for conspiracy.  On this basis, Mr. Dykes argues that TKC has an interest in appearing as an applicant here. 

17.Mr. Dykes may or may not be right on whether particular evidence will be admissible if there is autrefois acquit. Questions of evidence are for the court seised of TKC's trial.  They are not matters for judicial review.  The possibility of evidence at TKC's trial being affected by the others' success is not a basis to grant TKC standing.

B.  Main issue

18.Mr. Zervos SC (appearing for the Government) says that a magistrate has no jurisdiction to determine questions of autrefois acquit in committal proceedings.  For this, he relies on Chen Chong Gui v. Senior Inspector of Lai Chi Kok Reception Centre and another [1998] 1 HKC 522.

B.1  Facts of Chen Chong Gui

19.The applicant in Chen was arrested for extradition to the US.  Before the magistrate, he raised autrefois convict, saying that he had previously been convicted of a similar offence in the Mainland. 

20.The magistrate initially decided that he had no power to rule on the question.  But, after changing his mind on his jurisdiction, he held that there had been no autrefois convict.  The applicant then moved Deputy Judge Hartmann for habeas corpus.

21.At the time the extradition proceedings were commenced, the Fugitive Offenders Ordinance (Cap.503) had not come into effect.  Under the applicable law (Schedule I of the Extradition Act 1989), a magistrate considering whether to keep a person in custody for extradition:-

"shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence".

22.Judge Hartmann was asked to decide as a preliminary issue whether the magistrate could rule on a plea of autrefois convict when deciding whether to commit the applicant to prison pending extradition.

B.2  Judge Hartmann's analysis

23.Judge Hartmann stated (at 219G-H) that, in his view, a plea such as autrefois convict or acquit "would be open to an accused person in domestic committal proceedings". 

24.But the case before him concerned extradition proceedings.  These were "of a very different nature" from committal process.  It was thus "necessary to consider the unique nature of extradition proceedings under the relevant treaty and municipal law".

25.After a review of the authorities, Judge Hartmann concluded that, in extradition proceedings, a magistrate did not have jurisdiction to consider pleas of autrefois convict or acquit.  His reasoning (at 226B-227D) may be summarised thus:-

(1)	A magistrate in extradition proceedings derives his jurisdiction purely from statutes which set out the process to be followed. The magistrate's exercise of his powers must be delimited by the purpose behind extradition legislation.
(2)	If pleas of autrefois convict or acquit were allowed in extradition proceedings, the magistrate would have to evaluate expert evidence on the foreign law concerning the facts alleged by a requesting state. That would lead to protracted hearings and inevitable delay.
(3)	Such mode of proceeding would turn extradition hearings into mini-trials.  That, in the words of La Forest J in R v. Schmidt (1987) CCC (3d) 193, "could seriously affect the efficient working of a salutary system devised by states for the mutual surrender of suspected wrongdoers".
(4)	Long investigations by a magistrate into the legitimacy of pleas of autrefois convict or acquit would run counter to the need for an expeditious handing over of fugitives to requesting states in accordance with Hong Kong's obligations of international comity.  The applicable extradition statutes could not have contemplated such a result.
(5)	In actuality, Schedule I does not require that extradition hearings be conducted in exactly the same way as committal proceedings.  Instead, as Kaplan J pointed out in Re Thongchai Sanguandikul [1994] 1 HKCLR 1, it simply provides for the magistrate to follow committal process "as near as may be consistent with the extradition legislation".  it was wrong to assume that a magistrate could do in extradition hearings what he could do in committals.

26.Judge Hartmann therefore refused habeas corpus. 

27.The applicant appealed to the Court of Appeal (Mortimer VP, Godfrey and Rogers JJA).  Each appellate judge delivered a judgment.  I examine each in turn.

B.3  Mortimer VP's analysis

28.Mortimer VP reasoned as follows (at 529I-530G):-

"Historically, a plea in bar to an indictable offence could never be raised at committal proceedings.  It was a plea in bar to the indictment only and was hedged with technicality.  For example, it could only be made to the indictment and had to be made in writing.  However the Administration of Criminal Justice Improvement Act 1851 s.XXVIII provided that:-

In any Plea of autrefois convict ... it shall be sufficient for any defendant to state that he has been lawfully convicted ... of the said Offence charged in the Indictment.

This allowed an oral plea of autrefois convict for the first time but it remained a plea to the indictment.  It could never be made before an examining magistrate as committal proceedings are not a trial and no indictment could be settled until after the committal.  It is a plea in which the absence of statutory provision is only appropriate at trial.

Of course, it is a fundamental right under our law that a person should not be put in peril or punished twice for the same offence.  But this is a matter which must be raised for the decision of the judge -- or a magistrate in a summary case -- when pleading to the offence charged at a trial. It is only at a trial that the issue can be raised by plea and a final determination of the defence made.

The magistrate has no jurisdiction to try indictable offences.  Committal proceedings are only held for indictable offences.  Committal proceedings are not a trial.  No plea is taken and indeed no plea can be taken by the magistrate save as is specifically provided by s.81B of the Magistrates Ordinance (Cap.227) to which I will refer.

In Hong Kong, the statutory framework for committal proceedings is provided in the Magistrates Ordinance Pt.III.  Section 81B allows for a magistrate to accept a plea of guilty at the conclusion of committal proceedings and thereafter to commit the accused to the High Court for sentence.  This provision allows the committal proceedings to be terminated with an admission of guilt. It is a specific provision without which an examining magistrate would have no such power and it does not affect the principle which I have addressed.

For these reasons, I would hold it is contrary to principle for an examining magistrate and outwith his jurisdiction were he to entertain and determine a plea of autrefois convict -- or any equivalent plea.  I would further hold for these reasons that in the absence of other statutory provision or jurisdiction recognised by legal authority the words in cl.6(2)(b) of Sch 1 [of the 1989 Act] do not give the magistrate in extradition proceedings the jurisdiction contended for."

29.I have some difficulty applying Mortimer VP's reasoning to domestic committal process, as opposed to extradition proceedings.

30.First, he points out that it is a fundamental right under Hong Kong law that a person should not be tried twice for the same offence.  This is plainly correct.  See International Covenant on Civil and Political Rights (ICCPR) art.14(7) (applicable in Hong Kong by Basic Law art.39) and Hong Kong Bill of Rights Ordinance (Cap.383) (BOR) art.11(6).

31.If so, committal procedure as set out in Part III of the Magistrates Ordinance (Cap.227) (MO) should be construed in light of that fundamental right. 

32.It may have been that, historically, a plea of autrefois acquit could not be raised at committal proceedings.  But much has happened since the Administration of Criminal Justice Improvement Act 1851.  It cannot be assumed that criminal procedure has remained unaffected since historical times, despite enactment of the ICCPR and the BOR.  Unfortunately, Mortimer VP's analysis makes no mention of the effect of either legislation.

33.I note that, while all accepted that a basic right was at stake, none of the appellate judges in Chen discussed the possible effect of the ICCPR and BOR on the true construction of the MO.

34.Second, there is an assertion (echoed by Mr. Zervos, but challenged by Mr. Dykes) that "committal proceedings are not a trial".

35.The question whether committal is or is not technically part of a trial is as an arid basis on which to argue the appropriateness or otherwise of an accused raising a plea of autrefois acquit.  Such approach is overly formalistic.  It obscures the fact that one is dealing with a basic right, the assertion of which should not hinge on semantics.

36.Mr. Zervos goes so far as to suggest that, merely because one has a right, does not mean that one can assert it at the earliest opportunity or whenever one wants.  An accused can raise autrefois acquit to his heart's content (Mr. Zervos says) once the trial venue has been ascertained.  That will be the appropriate time (according to Mr. Zervos) to assert whatever right an accused wishes to advance.

37.But the suggestion is inimical to the nature of an inalienable right.  If it is cardinal principle that a person should not be twice vexed by charges for the same offence, why should one not be allowed to raise the matter at the earliest opportunity, say when one is charged and first brought before the magistrate?  Why should the assertion of a right have to wait, possibly months or (as will be the case here) nearly 2 years later, until the time when one is committed to trial before a specific tribunal?

38.The reason why a right is fundamental must be because society values it so highly that its exercise should not be curtailed any more than is absolutely necessary.  To say that committal forms part of a trial does not provide a substantive reason why the assertion of a fundamental right should be postponed, to await committal to trial before a particular court on some (possibly) long distant day.

39.As far as I can see, there is no good substantive policy reason for insisting that the assertion of an autrefois plea be delayed until a trial venue has been determine.  On the contrary, as Mr. Dykes submits, there is every reason why it should be capable of assertion at the earliest stage.  For instance, time and money may be saved by having the legitimacy of the plea resolved one way or another at the outset.

B.4  Godfrey JA's analysis

40.Godfrey JA stated (at 533D-534I):-

"In domestic criminal proceedings, an accused person may assert that he has already been acquitted, or convicted, of the offence with which he has now been charged.  If the prosecution disputes his assertion, that issue must be determined, one way or the other.  His trial cannot proceed until it is determined.  But when is the issue to be determined?  Can the accused person raise the issue for determination at the committal stage, or must he be left to do so at trial?  Authority provides no answer to this question.  If the correct answer is that the issue may be raised for determination at the committal stage of domestic criminal proceedings, then it must follow, as it seems to me, that it can equally be raised for determination at the same stage of extradition proceedings, in

which (as nearly as may be) the magistrate is entitled to exercise the same jurisdiction and powers, as are conferred on him in domestic criminal proceedings....

So, in the present case, we should, as I think, first grapple with the question whether such an issue can be raised for determination in domestic committal proceedings.

The judge thought that it could, although he considered it unnecessary to decide the point.  For my part, I think it is necessary to decide the point, and that the decision must be in the negative; ie, that the question cannot be raised for determination at the committal stage of domestic criminal proceedings.

The jurisdiction, and powers, of the magistrate in committal proceedings are limited to those conferred on him by s. 85 of the Magistrates Ordinance (Cap 227)....  I am of the opinion that, on its true construction, s.85 confers no jurisdiction or power upon a magistrate to entertain pleas in bar such as that under consideration now.  His function is limited to a consideration of the evidence concerning the alleged offence.

Accordingly, in my judgment, the magistrate (in the absence of any express statutory provision to that effect) can have no wider jurisdiction, or power, in extradition proceedings than he has in ordinary domestic committal proceedings.

If that is right, the question cannot be raised for determination at the committal stage of extradition proceedings.  This means, so far as extradition proceedings are concerned, that the accused person's only hope of avoiding extradition on this ground will lie in persuading the executive that it would be unjust to extradite him.

This may seem harsh; but it is the only conclusion consonant with what I conceive to be the most recent, and most relevant authority.  I refer to R. v. Governor of Pentonville Prison, ex p. Sinclair  [1991] 2 AC 64."

41.Insofar as domestic committal proceedings are concerned, I also have difficulty with Godfrey JA's views.

42.First, I note that, in contrast to Mortimer VP who believed that a magistrate's jurisdiction to entertain pleas in bar in the course of committals had long been settled, Godfrey JA states that authority is silent on this specific matter.  Thus, for Godfrey JA, historical analysis is of little (if any) help on the issue of autrefois pleas before the committing magistrate.

43.Second, Godfrey JA's reasoning focuses exclusively on a construction of MO s.85.  Because there was no express provision in the MO, especially s.85, Godfrey JA concludes that there is no domestic jurisdiction to hear an autrefois plea at committal stage.

44.But this result ignores cases such as R.v Horseferry Road Magistrates' Court, ex p. Bennett [1994] AC 42 (which was cited to the Court of Appeal in Chen).  In Bennett the House of Lords held by a majority that magistrates have an implied power to protect the court's process from abuse and that this power can be exercised in committal proceedings.

45.Godfrey JA does not consider whether the power to prevent abuse of process to be implied from the MO allows a magistrate to entertain autrefois pleas.  His judgment remains rooted in the express wording of MO s.85.  Thus, as a guide to a magistrate's general powers in domestic committal proceedings, Godfrey JA's decision can only be of limited value.

46.I shall return to the ramifications of Bennett when discussing the reasoning of Rogers JA, who specifically deals with that authority.

47.Third, as emerges from Judge Hartmann's analysis, it does not follow that, because a magistrate can do X in domestic committal proceedings, he has power to do X in extradition hearings.  He only has a like power to the extent consistent with extradition legislation.

48.Fourth, Godfrey JA observes that the outcome of his reasoning may be "harsh".  He appears to have come to his conclusion with regret and only after much wrestling with the implications of Sinclair.

49.But Sinclair, like Chen, is an extradition case.  To the extent that Sinclair gives rise to harsh results in extradition, there is no reason to be bound by its logic in the domestic committal context, especially when a fundamental right is at stake.  It is "harsh" to tell a citizen that he must postpone the enjoyment of a basic right until a later stage.  Such harshness must be backed by cogent reason.  Here, as already indicated, I see no good reason for postponement.

B.5  Rogers JA's analysis

50.Rogers JA said (at 538E-540D):-

"Counsel on both sides agreed that no case could be found where a magistrate or justices had considered the question of the autrefois plea in proceedings to commit or the question of his capacity or duty to do so had been considered.  The reason for that is likely to be that given by the Vice President simply that the situation could not arise unless and until there had been an indictment and that would only happen after the proceedings to commit were complete.

If that be right, a jurisdiction to consider the plea during committal proceedings could only arise from statute.  The jurisdiction of magistrates when conducting committal proceedings is carefully spelt out in the [MO] to the point where every step is laid down.

....

In my view, Mr. Walsh who appeared for the Government of the United States is correct that [MO] s.85 contains what it is the magistrate is required to do and consider.  Part III of the Magistrates Ordinance gives no jurisdiction to the magistrate to consider the autrefois plea and the matter simply does not arise.

....

I would add that in coming to this conclusion I have not overlooked the decision of the House of Lords in the case of R v. Horseferry Road Magistrates' Court, ex p. Bennett [1994] AC 42.  That case involved committal proceedings and the question that arose was whether the proceedings were an abuse of the process.  The House of Lords held that the magistrate, whether sitting as a committing magistrate or exercising the power of summary jurisdiction, had the power to control an abuse of process of jurisdiction but that power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused.  The wider responsibility for upholding the rule of law was that of the High Court and if issues as to that arose the matter should be adjourned to allow the High Court to deal with it.  Translating that to extradition proceedings, the wider power to see that the provisions of the treaty are observed and in particular the provisions relating to double jeopardy lie with, in this case, the Governor.

....

The learned judge below said that after hearing the argument he was inclined to the view that it could be raised at committal proceedings.  He then went on to consider the position as to whether, if the plea could be raised in committal proceedings, it could be raised in extradition proceedings.  Rightly, in my view, he came to the conclusion that even if the matter could be considered at committal proceedings, it could not be considered on extradition proceedings."

51.I have previously referred to Bennett, in which Lords Griffiths, Bridge, Slynn, Lowry and Oliver each delivered a speech.

52.Lords Griffiths, Bridge and Slynn thought that, whether sitting in committal proceedings or exercising a summary jurisdiction, magistrates could exercise control over their proceedings to prevent abuse. 

53.But Lord Griffiths (with the concurrence of Lords Bridge and Slynn) stressed a limit to a magistrate's jurisdiction (at 64C-D):-

"[T]his power [to prevent abuse] should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures.  Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures.  I adhere to the view I expressed in Reg. v. Guildford Magistrates' Court, Ex parte Healy [1983] 1 WLR 108 that this wider responsibility for upholding the rule of law must be that of the High Court and that if a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken."

54.Although agreeing that there was power to prevent abuse before the magistrate, Lord Lowry apparently thought that such jurisdiction should be exercised in respect of committal proceedings by the High Court alone.  He said (at 80E-F):-

"In any event, notwithstanding dicta to the contrary, I would, on the authority of Grassby v. The Queen (1989) 168 CLR 1, a decision of the High Court of Australia, and of cases there cited (to which I shall presently refer), not be easily persuaded that examining magistrates have jurisdiction to stay committal proceedings for abuse of process.  (I say nothing about the power of magistrates when sitting to try a case as a court of summary jurisdiction, as in Mills v. Cooper [1967] 2 QB 459.)"

55.Lord Oliver dissented.

56.Rogers JA accepts that an autrefois plea may be raised in committal proceedings.  But like Lord Lowry, he seems to locate the jurisdiction to prevent abuse of committal process in the High Court.  Thus, he suggests that the appropriate procedure where an autrefois plea is raised is for the magistrate to adjourn proceedings and remit the question to the High Court.

57.Lord Lowry in Bennett accepts that trying a person twice for the same offence would constitute an abuse of procedure in the limited sense identified by Lord Griffiths.

58.Lord Lowry states (at 73H-74H):-

"The first essential is to define abuse of process, which in my opinion must mean abuse of the process of the court which is to try the accused.  Archbold, Criminal Pleading Evidence & Practice, 43rd ed. (1993), para.4-44 calls it 'a misuse or improper manipulation of the process of the court.'  In Rourke v. The Queen (1977) 76 DLR (3d) 193 Laskin CJC said at p.205, 'The court is entitled to protect its process from abuse' and also referred, at p.207, to the 'danger of generalising the application of the doctrine of abuse of process.'  In Moevao v. Department of Labour [1980] 1 NZLR 464, 476, Woodhouse J spoke approvingly of 'the much wider and more serious abuse of the criminal jurisdiction in general,' whereas Richmond P, giving expression to reservations about the view in which he had concurred in Reg. v. Hartley [1978] 2 NZLR 199, referred, at p.471, to the need to establish 'that the process of the court is itself being wrongly made use of.'  I think that the words used by Woodhouse J involve a danger that the doctrine of abuse of process will be too widely applied and I prefer the narrower definition adopted by the President.  The question still remains what circumstances antecedent to the trial will produce a situation in which the process of the court of trial will have been abused if the trial proceeds.

Whether the proposed trial will be an unfair trial is not the only test of abuse of process.  The proof of a previous conviction or acquittal on the same charge means that it will be unfair to try the accused but not that he is about to receive an unfair trial....

....  I consider that a court has a jurisdiction to stay any criminal proceedings on the ground that to try these proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case...."

59.Lord Lowry's belief that only the High Court should police abuse of committal proceedings before magistrates, was not a majority view.  I doubt, therefore, that Rogers JA can (as he appears to do) accord more weight to Lord Lowry's dictum than to the majority opinion in Bennett as expressed by Lords Griffiths, Bridge and Slynn. 

60.Given that (as even Lord Lowry accepts) it is an abuse of process in the sense identified by Lord Griffiths to charge a person twice for the same offence, it follows from the majority view that an autrefois plea is something that a magistrate can consider in committal proceedings as part of the abuse jurisdiction upheld in Bennett.

61.It may be, as Rogers JA and Lord Lowry indicate, that certain "rule of law" issues are more appropriately dealt with by a magistrate adjourning the matter to the High Court.  

62.But in this case the magistrate is merely concerned with the question whether some of the applicants will be tried twice for the same or similar offence.  If they are, there is unfairness and an abuse of process.  The issue involved is limited and one which magistrates are perfectly capable of deciding.  In this last respect, I note that, in contrast to England where some magistrates are laymen, all magistrates in Hong Kong are experienced lawyers.

B.6  Conclusion on Chen Gui Tong

63.It will be apparent that the application of Chen to domestic committal proceedings is problematic. 

64.Strictly, the observations by the Court of Appeal on committal proceedings are obiter, since the case concerned extradition.  For the reasons identified by Judge Hartmann, extradition proceedings cannot be treated as identical to committal process. 

65.Accordingly, Chen should probably best be read as confined to the situation of extradition proceedings.  The various dicta on domestic committal proceedings in Chen are not binding on a first instance judge and I am free to decide the question of a magistrate's jurisdiction on the basis of first principle.

66.As will have already been apparent from the foregoing discussion, I believe that a magistrate should be able to decide a question of autrefois convict or acquit as part of his jurisdiction to prevent abuse of process.

67.It would be an affront to the court process if a person were troubled twice by charges in respect of the same or similar offence. No good reason has been given in the course of submission as to why there should be delay in determination of an autrefois claim.  In my judgment then, the magistrate wrongly declined jurisdiction.

68.I would add 4 footnotes to my conclusion.

69.First, Mr. Zervos submitted that there was no need for a jurisdiction to rule on autrefois acquit or convict in committal proceedings.  If there was inordinate delay in the plea being heard, the magistrate could consider staying the proceedings in the exercise of his abuse jurisdiction.  Under Bennett (Mr. Zervos acknowledged) the magistrate had jurisdiction to stay committal proceedings on the ground of delay.  The magistrate's power to ensure that committals proceeded moved along expeditiously would mean that trial venues would be determined (and autrefois pleas then considered) speedily.  The assertion of the autrefois plea would not be unduly delayed in practice.

70.I am not persuaded by the argument. 

71.In considering whether to stay for delay, a magistrate looks back at the time that has elapsed since a person has been charged.  But he also looks ahead to the future trial.  He grants a stay if in his view the time that has elapsed is of a magnitude that for whatever reason the future trial can no longer be regarded as fair for the accused. 

72.As Lord Lowry has observed in the dictum quoted above, such assessment by the magistrate does not take account of the possibility that a trial may be fair and yet the prospect of vexing an individual twice may be unfair.  Delay is not the only form of abuse of process.  The mere fact that a magistrate has the means to deal with delay, cannot be a substantive reason for curtailing a basic right or denying the magistrate a power to consider whether such right has been abused.

73.Second, I fully appreciate that, if the plea of autrefois acquit is raised on Day 1 of committal proceedings, the prosecution might reasonably wish to have time to deal with the question.  For example, the prosecution may wish fully to investigate the facts and matters relating to an alleged previous acquittal or conviction.  Where (as here) foreign law is concerned, the prosecution may want to obtain foreign expert evidence.

74.My conclusion should not be taken to mean that, if on Day 1 an accused asserts an autrefois plea, the magistrate must straightaway deal with the matter.  Obviously the magistrate must consider what is practical and procedurally fair to both sides.  He may accordingly grant reasonable adjournments to enable one or both sides to prepare their cases on the question.

75.Third, Mr. Dykes has stressed that there are many different situations when an autrefois plea may be made.  For example, Archbold Hong Kong 2005 §4-32 identifies at least 4 types of autrefois plea as follows:-

(1)	"A person may not be tried for a crime in respect of which he has previously been convicted or acquitted."
(2)	"A person may not be tried for a crime in respect of which he would on some previous indictment have been lawfully convicted."
(3)	"A person may not be tried for a crime the proof of which would necessarily, as a matter of law, entail proof of another crime of which he was already acquitted."
(4)	"A person may not be tried for a crime which is in effect the same or substantially the same as one of which he has previously been convicted or acquitted (or could have been convicted by way of a verdict of guilty of a lesser offence)."

76.I have used the expressions "autrefois acquit" and "autrefois convict" in a general sense.  I do not intend to distinguish between the different situations in which the "autrefois plea" may be available, from the more straightforward situations to the less so.

77.Fourth, in holding that the magistrate has jurisdiction, I should not be taken to have come to any conclusion on the legitimacy of the pleas of autrefois acquit advanced by Yeung, TMW and Chik.  In particular, Mr. Zervos in his Skeleton sketches out his case for saying that evidentially, factually and legally the applicants simply have no autrefois case.  It must be for the magistrate to determine whether the autrefois pleas here are well-founded.

C.  Subsidiary issue

78.My conclusion on the main issue renders it unnecessary to consider the subsidiary one.

79.I would only say that, had I found against Mr. Dykes on the main issue, I would have declined to consider the autrefois pleas myself. 

80.My reason would have been similar to that of Judge Hartmann in Chen (at 227E-G) on an analogous invitation from counsel:-

"This court is not a court of appeal from the magistrate.  It cannot retry or rehear the case....  This court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised.  This court simply asks itself whether there was evidence on which a reasonable magistrate, properly directing himself in law, could commit.

In my judgment this court cannot assume for itself jurisdiction to hear a plea in bar when it has found the magistrate had no such jurisdiction."

81.What Judge Hartmann said must all the more apply to judicial review. 

82.If the magistrate had rightly refused to consider the autrefois plea, there would be no improper decision being put forward for review by the High Court.  In those circumstances, I do not believe that, out of the blue, I can arrogate to myself a jurisdiction to rule on the autrefois pleas.

IV.  Conclusion

83.There will be an order of mandamus requiring the magistrate to consider the autrefois pleas of Yeung, TMW and Chik. 

84.TKC's application for judicial review is dismissed.

85.I shall now hear counsel on costs and any consequential orders.

Mr. Philip Dykes SC and Mr. Philip Wong, instructed by Messrs. Lau, Chan & Ko, for the Applicants.

Mr. Kevin P. Zervos SC, SADPP and Mr. William Tam, SGC of the Department of Justice, for the Respondent.