Yeung Chun Pong v. Secretary for Justice

CACV102/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 102 OF 2005

(ON APPEAL FROM HCAL NO. 22 OF 2005)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Tang JJA in Court

Date of Hearing : 10 November 2005

Date of Judgment : 10 November 2005

Date of Handing Down Reasons for Judgment : 24 November 2005

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REASONS FOR JUDGMENT

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Hon Ma CJHC (giving the reasons for judgment of the Court):

1.On 22 July 2005, we handed down judgment allowing an appeal in favour of the Respondent (the Secretary for Justice) in which, essentially, it was decided that a magistrate did not have the jurisdiction to determine an autrefois (whether acquit or convict and whether classic or extended) plea in committal proceedings under Part III of the Magistrates Ordinance, Cap.227.  The appeal had been from a decision of the Court of First Instance granting an order of mandamus requiring a magistrate in committal proceedings to consider the autrefois plea of the 1st, 3rd and 4th Applicants (to whom I shall simply refer as the Applicants).  By a Notice of Motion dated 15 August 2005, the Applicants applied for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance, Cap.484 that the following two questions involved points of great and general importance that should be determined by the Court of Final Appeal : -

“	(1)	Whether a Magistrate in committal proceedings under Part III of the Magistrates Ordinance has jurisdiction to entertain autrefois pleas.
	(2)	Whether a Magistrate in committal proceedings under Part III of the Magistrates Ordinance has jurisdiction to entertain application for stay of proceedings on the basis of the rule against double jeopardy or is otherwise entitled to refuse to commit for trial on the basis of the rule against double jeopardy.”

2.After hearing submissions from counsel, this Court certified the two questions to be points of great and general importance, reserving the question of costs (as prayed for in the Applicants’ Notice of Motion).  We also indicated that our Reasons for Judgment would be handed down in due course.  This was for one reason alone : in order to clarify an aspect of the application that had caused some confusion.  This was whether the appeal before us involved the civil or criminal jurisdiction of the Court.  The relevance of this question in the context of the present application made by the Applicants was whether the provisions of Part II of the Hong Kong Court of Final Appeal Ordinance applied (dealing with civil appeals in the Court of Final Appeal) or whether Part III (dealing with criminal appeals) did.  The Applicants took the view that the criminal jurisdiction of the courts was engaged while the Respondent doubted this.  The resolution of this point has practical relevance since the procedures for applying for leave to appeal to the Court of Final Appeal differ quite markedly depending on whether the proposed appeal is a civil or criminal one.  An examination of the provisions of Parts II and III of the Ordinance demonstrates this.  One of the more curious differences between the two regimes is that while an application for leave can be made to the Court of Appeal for leave to appeal in civil matters (see section 23(1)(a)), only the Court of Final Appeal can grant leave in criminal matters (see section 32(1)).  In criminal matters, the Court of Appeal’s role is limited to certifying points of great and general importance for determination by the Court of Final Appeal (see section 32(2)).  This was, as stated above, what the Applicants sought from the Court.

3.Mr Kevin Zervos SC queried whether the present appeal involved the civil or criminal jurisdiction of the Court.  He pointed out, correctly, that the appeal was given a civil appeal number rather than a criminal one (CACV and not CACC) and the procedure that was adopted was in accordance with RHC Order 59 which on the whole governs civil appeals.  However, in our view, the test in deciding whether or not proceedings are criminal or civil lies in looking at the nature of the cause or matter in which the appeal is brought.  This Court has had occasion recently to deal precisely with this point :- see So Wing Keung v Sing Tao Ltd & Another [2005] 2 HKLRD 11, at 38-45 (paragraph 31).  In that case, it was said that where the nature of a cause or matter was criminal rather than civil, it did not lose this characteristic merely because at one stage or another, techniques were employed which closely resembled those used in civil matters : - at 41 (paragraph 31(7)(c)).

4.Applying the principles in So Wing Keung, we are clearly driven to the conclusion that the nature of the case or matter that led to the appeal before us was criminal and not civil.  It will be remembered that the appeal arose from committal proceedings before a magistrate in relation to a charge of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to sections 159A and 159C of the Crimes Ordinance, Cap.200 and section 25(1) of the Organized and Serious Crimes Ordinance, Cap.455.

5.Accordingly, as the application for judicial review in the Court below had been for an order of mandamus and this arose out of a criminal cause or matter, the criminal jurisdiction of the Court of Appeal was engaged, whether under section 13(3)(aa) or section 14A of the High Court Ordinance, Cap.4.  For present purposes, it is unnecessary to decide under which of these two provisions the appeal came; it is sufficient that it fell within either or even both provisions.  We should emphasize that the criminal jurisdiction of the Court of Appeal was engaged notwithstanding the use of a civil appeal number and the observance of the requirements of RHC Order 59.  We would here also just make the observation that where, as in the present case, an appeal is lodged in judicial review proceedings relating to a criminal cause or matter, the procedure on appeals under Order 59 and the relevant practice directions relating to civil appeals, will apply.

6.The criminal jurisdiction of the Court of Appeal having been engaged in the present appeal, the Applicants were correct in making an application (as they did) for a certificate under section 32 of the Hong Kong Court of Final Appeal Ordinance.  And, as accepted by Mr Zervos, the questions do involve points of great and general importance that should be determined by the Court of Final Appeal.

Mr Philip Dykes SC & Mr Philip Wong instructed by Messrs Lau Chan & Ko for the 1st, 3rd & 4th Applicants    

Mr Kevin P Zervos SC and Mr William Tam of the Department of Justice for the Respondent