Tse So So v. Secretary for Justice

HCAL 160/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 160 OF 2005

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BETWEEN

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Before:  Hon. Lam J, in Court

Date of Hearing:  19 December 2005

Date of Judgment: 19 December 2005

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J U D G M E N T

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1.I am grateful for counsel’s submissions on this application for leave for judicial review.  The subject matter is the magistrate’s consideration of the case in TMS10720 to 10728 of 2004.  What happened was that there were nine summonses altogether and the original information was amended on 3 October 2005.  It is contended on behalf of the Applicant that, by that amendment, the prosecution has unwittingly created a situation whereby new charges were preferred and they were preferred out of time and, therefore, the magistrate has no jurisdiction to deal with the case. 

2.At the amendment stage, that is, on 3 October 2005, the Applicant did not oppose the amendment.  It was on 1 December 2005 at the commencement of the trial, the Applicant took the preliminary point that this amendment has led to the result that the magistrate has no jurisdiction to deal with the matter.  The learned magistrate ruled against that submission and, thereafter, evidence was adduced by way of agreed facts between the parties.  The magistrate ruled that there was a case to answer and the Applicant then elected not to give evidence.  The case was adjourned to this Friday, 23 December, for written final submissions.

3.During the course of the adjournment, the Applicant issued the present application for leave to apply for judicial review on 9 December 2005.  There have been challenges during the course of the present proceedings by way of judicial review but I think the principles are set out in the recent  case of Mo Yuk Ping and Ma Chiu Cheng.  The Mo Yuk Ping case is a Court of Appeal decision reported in [2005] 3 HKC 76, and Ma Chiu Cheng is HCAL 129 of 31 October 2005.

4.I would not repeat the principles which have been set out in those cases.  From those cases the criteria that one should apply in deciding whether leave should be granted for judicial review is that before leave is granted, the court must consider that there were exceptional or appropriate circumstances where the court considers that the criminal trial should be interrupted. 

5.The general consideration is that it is highly undesirable to interrupt the ebb and flow of the trial.  If there exists an alternative route by which the injustice done to a party adversely affected by the ruling can be remedied, that route should be taken.  It is clear that even though the point taken is a jurisdictional point, these principles apply.  See the reference by Tang JA to the case of Commissioner for Labour v Jaytek in paragraph 21 of the judgment of Mo Yuk Ping.  At paragraph 29 of that judgment, the Court of Appeal stressed that it would be a very rare case where this sort of intervention is justified. 

6.In the judgment of Chu J in the case of Ma Chiu Cheng, these principles were applied and, at paragraph 14 of her Ladyship’s judgment, her Ladyship referred to the fact that the risk of a guilty verdict and perhaps a consequential custodial sentence would not be a sufficiently cogent reason for taking such an exceptional course. 

7.Coming back to the present context, the point which the Applicant is now taking has been considered by the magistrate and, no doubt, it is open to the Applicant, if she was convicted after trial, to test the point by way of appeal. 

8.Having considered the submissions from counsel, I also bear in mind the merits of the point taken.  Although I would not say this is a point which is wholly unarguable, neither am I satisfied that this is a particularly cogent point whereby this court can say readily that the magistrate has no jurisdiction to entertain the matter. 

9.Bearing in mind the circumstances of the matter, in particular the fact that the trial will be concluded this Friday and the inevitable delay to the whole process if leave to judicial review is granted and a day has yet to be fixed for the substantive judicial review hearing and there could be possibilities of appeal in the matters, I think the fair and more efficient way and, no doubt, the more appropriate way to deal with the matter is to let the criminal proceedings take its course and, if necessary, for the Applicant to seek redress by way of appeal. 

10.I therefore refuse leave. 

(Submissions on costs)

11.The Applicant to pay the Respondent’s costs of the application, to be taxed if not agreed. 

Mr Ching Y Wong, SC, leading Miss Tanya Chan, instructed by Messrs Li, Wong & Lam, for the Applicant

Mr John Reading, SC, leading Miss Teresa Kam, instructed by the Department of Justice, for the Respondent