Yeung Chun Pong and Others v. Secretary for Justice

FACC No. 3 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACV NO. 102 OF 2005)

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Between :

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Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of Hearing : 31 October 2006

Date of Judgment : 13 November 2006

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J U D G M E N T

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Chief Justice Li:

1.I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

2.I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Chan PJ :

3.I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Ribeiro PJ :

4.I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

Introduction

5.This appeal is brought by the appellants pursuant to the grant of leave by the Appeal Committee, the Court of Appeal having certified that there were two questions of great and general public importance involved in its decision allowing an appeal from Reyes J.  The two questions are :

(1) whether a magistrate in committal proceedings under Part III of the Magistrates Ordinance, Cap. 227, has jurisdiction to entertain autrefois pleas; and

(2) whether a magistrate in committal proceedings under Part III of the Magistrates Ordinance has jurisdiction to entertain an application for a 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.

The history of the proceedings

6.In March 2002, the three appellants were tried in the Macau Criminal Court for two offences.  They were convicted of the offence of illegal bookmaking and acquitted of the offence of money laundering.  Both charges related to Hong Kong racing fixtures in 1999.  The gist of the money laundering charge was that the appellants (among others) recycled the proceeds of their bookmaking operation through accounts intended for the receipt of monies from licensed casino activities.

7.In November 2003, the 1^st and 2^nd appellants were charged with the offence of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to ss 159A and 159C of the Crimes Ordinance, Cap. 200 and s.25(1) of the Organized and Serious Crimes Ordinance, Cap. 455.  Later, in September 2004, the 3^rd appellant was charged with the same offence and was joined with the charge against the 1^st and 2^nd appellants.

8.The particulars of offence alleged that between 30 June 1998 and 3 September 1999, in Hong Kong, they conspired together with persons unknown to use a bank account at the Hang Seng Bank number 275-1-076874 in the name of Tse May Wah, to deal with property, namely HK$216,152,319, knowing or having reasonable grounds to believe that the said property, in whole or in part, directly or indirectly represented the proceeds of indictable offence.

9.The appellants contend that the offence charged in Hong Kong is based on substantially the same matters on which they had been convicted or acquitted of offences in Macau and that they are therefore entitled to rely on the Macau verdicts in support of the autrefois plea.  The appellants’ case on this point would, if sound in law, give rise not to a plea of autrefois in the strict sense but to an extended plea of autrefois, resulting in the grant of a stay of proceedings where it is shown that the second offence arises out of the same or substantially the same set of facts as the first offence. 

10.In the course of the very lengthy committal proceedings which followed the laying of the charges against the appellants, they argued that they were entitled to rely on the Macau verdicts to support a plea in bar of autrefois acquit or, alternatively, to use the Macau verdicts to maintain an application for a permanent stay of proceedings.

11.On 25 January 2005, Mr Candy, a Permanent Magistrate, ruled that he had no power to dismiss or stay the committal proceedings on the grounds of double jeopardy :

“… since the prosecution has not yet made an election whether the case should be tried summarily or in another venue, whether on indictment in the High Court or in the District Court.”

Although expressing dissatisfaction with the delay in the conduct of the case, the magistrate adjourned the case for three more months at the request of the prosecution.

12.On 15 March 2005, in proceedings for judicial review, Reyes J made an order of mandamus requiring the magistrate to consider the autrefois pleas of the three appellants.

13.A subsidiary issue, which arose before Reyes J, was the question whether in the event that he had held the magistrate had no jurisdiction to deal with the autrefois pleas, he would have considered the pleas himself.  Reyes J stated that, had the question arisen, he would not have done so.  If the magistrate had correctly refused to consider the autrefois pleas, there would have been no decision susceptible to judicial review by the Court of First Instance.

14.The respondent appealed to the Court of Appeal against the order for mandamus made by Reyes J.  On 31 May 2005, the appellants filed a notice out of time objecting to the Court of Appeal hearing the appeal on the ground that, in the light of subsequent events to be mentioned shortly, it was of academic interest only.

15.On 22 July 2005, the Court of Appeal, though recognizing that the appeal raised issues which by then had become academic, delivered judgment in the appeal from Reyes J, setting aside the order for mandamus.  On 10 November 2005, the Court of Appeal issued its certificate relating to a further appeal to this Court.  On 2 March 2006, the Appeal Committee granted leave to appeal, notwithstanding that the appeal raised academic issues in the light of events now to be mentioned.

16.On 17 May 2005, after an application had been made on behalf of the Secretary for Justice under s.88 of the Magistrates Ordinance to transfer the charges against the appellants and another defendant Tse Kwai Ching to the District Court, the three appellants formally entered their autrefois pleas in that Court.  A hearing to deal with the preliminary issues arising from these pleas and a stay application was set down for hearing on 25 and 26 July 2005 and the trial proper was scheduled to commence on 17 October 2005 with 15 days reserved.  The dates for trial were later vacated.

17.District Judge Wright heard the preliminary issues on 25 and 26 July 2005.  On 31 August 2005, the judge delivered judgment rejecting the autrefois acquit pleas and refusing a stay.

18.Reyes J then granted leave to judicially review the decision of Judge Wright.  Subsequently on 10 November 2005, Reyes J refused an application by the respondent to set aside the order granting leave to review.  On 30 March 2006, the Court of Appeal delivered judgment dismissing an appeal by the respondent against the refusal by Reyes J to set aside the order granting leave to review.

19.Before turning to the issues and the arguments advanced in this Court, it is convenient to state briefly the approaches taken by Reyes J in the Court of First Instance and by the Court of Appeal to the questions which arose for decision.

The judgment of Reyes J

20.Reyes J accepted that it is a fundamental right under the law of Hong Kong that a person should not be tried twice for the same offence: see Hong Kong Bill of Rights Ordinance, Cap. 383, (“BORO”), BOR art.11(6) implementing International Covenant on Civil and Political Rights (“ICCPR”) art.14(7) (as required by Basic Law art.39).  Reyes J considered that the provisions of the Magistrates Ordinance are to be construed in the light of this fundamental right and that, so construed, the Ordinance authorizes the determination of an autrefois plea as early as possible, that is, in committal proceedings.  Further, policy reasons – the saving of time and money – favoured that course as against a later determination at the trial.  His Lordship relied upon the majority decision and speeches in R v. Horseferry Road Magistrates’ Court Ex parte Bennett [1994] AC 42 to support the proposition that examining magistrates have an implied power to protect the court’s process from abuse, that this power can be exercised in committal proceedings and that it is an abuse of process to charge a person twice for the same offence.  Decisions in extradition cases, such as Chen Chong Gui v. Senior Superintendent of Lai Chi Kok Reception Centre [1998] 1 HKC 522, were distinguished.

The Court of Appeal judgment

21.The judgment of the Court of Appeal (Ma CJHC, Stock and Tang JJA) proceeded on a view of what Bennett decided which differed substantially from that taken by Reyes J.  The Court of Appeal held that Bennett did not decide that an examining magistrate had an unrestricted jurisdiction to deal with allegations of abuse of process.  The Court of Appeal pointed out that Lord Griffiths, who expressed the majority view of the House of Lords, restricted an examining magistrate’s power to :

“… matters directly affecting the fairness of the trial of the particular accused ...”

which is an issue different from whether it would be unfair to try the accused.

22.The Court of Appeal held that it was not legitimate, as Reyes J did, to expand the meaning of Lord Griffiths’ statement by reference to Lord Lowry’s view in Bennett (at 74C-D) that trying a person twice is an abuse of process.  In fact Lord Lowry’s view on the power of committing magistrates was narrower than that of Lord Griffiths.  Lord Lowry said (at 80E) that he :

“… would not be easily persuaded that examining magistrates have jurisdiction to stay committal proceedings for abuse of process.”

What Lord Lowry was saying was that the High Court, in the exercise of its supervisory jurisdiction to stay for abuse of process, could deal with an abuse of process constituted by trying a person twice for the same offence, in addition to the trial court’s power to deal with the matter.

23.The Court of Appeal also considered that art.11(6) of the BOR does not apply to convictions or acquittals by a foreign court and that it is narrower than the protection available at common law.  In any event, their Lordships in the Court of Appeal concluded that art.11(6) did not require more than that an autrefois plea be taken before the trial court or the High Court in its supervisory jurisdiction.

The appellants’ case

24.The appellants’ case is that the Court of Appeal placed too narrow an interpretation on the remarks of Lord Griffiths in Bennett.  Mr Philip Dykes SC for the appellants, submits that the Court of Appeal was wrong, in the context of the power of examining magistrates to stay proceedings for abuse of process, to draw a distinction between issues relating to the “fairness of the trial of the particular accused” (where the power is exercisable) and the issue “whether it is fair to try the particular accused” (where the power is not exercisable). 

25.In any event, Mr Dykes SC submits that Lord Griffiths’s approach is too narrow, when viewed in the light of recent constitutional developments in Hong Kong and England.  These developments include art.11(6) of the BOR which explicitly provides that no-one “shall be liable to be tried” twice for the same offence.  The true position, on the appellants’ argument, is that the power of the examining magistrate to stay for abuse of process extends to autrefois pleas. 

The respondent’s case

26.Mr Kevin Zervos SC for the respondent, argues that Lord Griffiths correctly expressed the limits of the committing magistrates’ powers to stay proceedings for abuse of process and that the Court of Appeal was right in interpreting his Lordship’s remarks as they did.  Mr Zervos SC points to various practical difficulties which could arise if the appellants’ arguments are accepted and supports the view taken by the Court of Appeal of the effect of art.11(6) of the BOR.

The Magistrates Ordinance

27.The starting point in an examination of the questions for determination is Part III of the Magistrates Ordinance dealing with committal proceedings for indictable offences.  Section 80C deals with the procedure to be followed on the return day, after the accused appears or is brought before a magistrate upon an allegation of the commission of an indictable offence and the complaint and witness statements have been served before the return day.  Section 80C provides that unless the accused elects to have the charges heard at a preliminary inquiry, he will be committed without such an inquiry.  If the accused elects to have the charge against him heard at a preliminary inquiry, there shall be a preliminary inquiry which will be held pursuant to s.81.  This section makes provision for the taking of evidence for and on behalf of the prosecutor, with liberty to the accused or his counsel to cross-examine witnesses produced against him, and for the recording of evidence.

28.The critical provision is s.85.  It provides :

“(1) If after hearing all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses and after taking into consideration any statement made by the accused, the magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, the magistrate shall forthwith order the accused, if in custody, to be discharged as to the complaint or information then under inquiry, but such discharge shall not be a bar to any subsequent complaint or information in respect of the same facts.

(2) If in the opinion of the magistrate, after hearing such evidence as aforesaid and taking into consideration any statement of the accused, such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order that the accused stand committed for trial at the Court of First Instance and shall so inform the accused or cause him to be so informed.”

29.The respondent is correct in saying that nowhere in Part III is there any express provision for the entering of autrefois pleas in relation to indictable offences.  Nor is there any other express provision which authorizes an examining magistrate to take account of autrefois pleas.  The function of the examining magistrate under the statute is to consider whether, in the light of all the evidence, the evidence is sufficient to put the accused on trial or raises a strong or probable presumption of his guilt (s.85(2)). 

30.The authorities do not support the notion that s.85 authorizes an examining magistrate to deal with an autrefois plea.  In Chen Chong Gui, which was an extradition case, the Court of Appeal considered the question whether a committing magistrate had jurisdiction under Part III to determine an autrefois plea.  Mortimer VP (at 530C, 529I-530G), Godfrey JA (at 533D-534E) and Rogers JA (at 538E-539N) answered the question in the negative. 

31.The respondent accepts that, in the case of a summary trial before a magistrate (as opposed to committal proceedings), the magistrate may entertain an autrefois plea.  Section 31 of the Criminal Procedure Ordinance, Cap. 221, provides :

“(1) In criminal proceedings in any court on a plea of autrefois convict or autrefois acquit the accused person may state that he has been previously convicted or acquitted, as the case may be, of the offence charged.

(2) In this section, ‘court’ includes the District Court and a magistrate.”

It is clear that, in the context of s.31, the expression “criminal proceedings” does not include committal proceedings, where there is no provision for the entry of an autrefois plea.

The examining magistrate’s power to stay proceedings for abuse of process

32.The appellants’ case is based, however, not on the proposition that either s.85 of the Magistrates Ordinance or s.31 of the Criminal Procedure Ordinance directly authorizes the examining magistrate to deal with a plea of autrefois but on the broader proposition that such a magistrate has power to stay for abuse of process and that it is an abuse of process for a person to be tried twice for the same offence.

33.In recent times, the law relating to the power of courts, particularly magistrates’ courts, to stay proceedings for abuse of process has been in a state of evolutionary development.  In Mills v. Cooper [1967] 2 QB 459, Lord Parker CJ said (at 467) :

“… every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.”

In Mills v. Cooper, the justices heard and determined proceedings on information.  So it may be doubted whether the statement was intended to apply to a court hearing committal proceedings. 

34.In Atkinson v. U.S.A. Government [1971] AC 197, Lord Reid (with whom Lord MacDermott and Lord Upjohn agreed) and Lord Guest denied that examining magistrates had any discretion to refuse to commit an accused for trial on the ground that it would be unjust or oppressive to commit him once the magistrate decided there was sufficient evidence to commit him.  In D.P.P. v. Humphrys [1977] AC 1, Viscount Dilhorne (at 26C) doubted the correctness of Lord Parker CJ’s statement in Mills v. Cooper in so far as it applied to magistrates’ courts, as did Lord Salmon (at 46E).  And, in Grassby v. The Queen (1989) 168 CLR 1, the High Court of Australia held by majority that an examining magistrate was bound to decide whether on the evidence to discharge the defendant or commit for trial, in accordance with the provisions of the statute governing committal proceedings, and that there was no inherent or implied power in the examining magistrate to stay proceedings for abuse of process, that power residing in the superior courts.

35.However, in consequence of a series of Divisional Court decisions in England in the 1980s and 1990s, it came to be accepted that examining magistrates did possess a power to prevent an abuse of process, the power being very strictly confined and exercisable only in most exceptional circumstances (see, for example, R v. Canterbury and St Augustine Justices, Ex parte Klisiak [1982] 1 QB 398 at 411E-F, per Lord Lane CJ; R v. Derby Crown Court, Ex parte Brooks (1985) 80 Cr App R 164 at 167-168, per Sir Roger Ormrod and the cases there cited; see also R v. Telford Justices, Ex parte Badhan [1991] 2 QB 78 at 86A-90G, per Mann LJ; R v. Croydon Justices, Ex parte Dean [1993] QB 769.

36.These authorities were considered in Bennett.  In that case, the defendant who had been forcibly returned to England, although he could have been returned lawfully, was refused an adjournment to challenge the magistrates’ court’s jurisdiction.  He was committed for trial.  The Divisional Court refused an application for judicial review on the ground that it had no power to inquire into the circumstances in which a person appearing before it was brought into the jurisdiction.  In allowing an appeal from the Divisional Court, the House of Lords considered the power of magistrates to deal with abuse of process. 

37.With reference to that matter, Lord Griffiths said (at 64B-D) :

“I would accordingly affirm the power of magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction.  However, in the case of magistrates, this power 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 …”

His Lordship had earlier referred (at 63H) to the power as “a power to be most sparingly exercised”.

38.Lord Bridge of Harwich and Lord Slynn of Hadley agreed with Lord Griffiths.  Lord Oliver of Aylmerton dissented and Lord Lowry, while agreeing in the result, doubted that examining magistrates have power to stay proceedings for abuse of process.  On this point, his Lordship was influenced by the decision of the High Court of Australia in Grassby v. The Queen.

39.The precise effect of Lord Griffiths’s statement quoted above has been the subject of debate in England.  In R v. Belmarsh Magistrates’ Court, Ex parte Watts [1999] 2 Cr App R 188, Buxton LJ (at 195E), relying on Lord Oliver’s dissenting speech in Bennett, expressed the view that the wide category of cases over which magistrates have jurisdiction includes investigation of the bona fides of the prosecution or of whether the prosecution has been instituted oppressively or unfairly.  But the correctness of this view was questioned by Auld LJ and Hughes J in R v. Bow Street Magistrates’ Court, Ex parte Finch [1999] EWHC Admin 527 para. 17.  This is not a question which this Court needs to resolve.

40.The law has now developed to the point that it should be acknowledged in Hong Kong that examining magistrates possess implied power to stay proceedings to prevent an abuse of their own process, limited though the exercise of the power may be.  This implied power is an instance of the general proposition that every court has implied power to protect the integrity of its own process.  Part III of the Magistrates Ordinance is not inconsistent with this implication, though its provisions, notably s.85, will impose constraints on what can be done in the exercise of the implied power in relation to committal proceedings as distinct from a summary trial.

41.What can be done in the exercise of the power is necessarily constrained not only by the statutory provisions but also by the limits of the power itself.  It is a power to prevent abuse of the process of the Magistrates’ Court and, in this case, of committal proceedings in that court.  The power extends to abuses of process that are abuses of the process of the trial court, in so far as such abuses constitute abuses of the process of the Magistrates’ Court in committal proceedings in that court.  But the power, when exercised, is necessarily limited to the protection of the integrity of the Magistrates’ Court’s process, resulting in an order staying proceedings in that court only.  In the case of committal proceedings, the order, if made, would stay those proceedings.

42.The exercise of the implied power with respect to autrefois defences in committal proceedings presents a special problem.  No doubt, as Lord Lowry recognised in Bennett, the prosecution of a defendant twice for the same offence would constitute an abuse of process.  In theory the Magistrates’ Court’s powers to protect the integrity of its own process would extend to such a case. 

43.There are, however, powerful policy and practical reasons why the power should not be exercised in relation to autrefois issues in committal proceedings.  The determination of an autrefois issue by an examining magistrate would not be final or decisive.  If the decision be adverse to the defendant, he would still be at liberty to raise the plea in bar at the trial or to apply to the High Court for a stay of the criminal proceedings in the exercise of its supervisory jurisdiction to prevent abuse of process.  Conversely, if the examining magistrate’s decision on the autrefois issue be favourable to the defendant, the prosecution could seek judicial review of the decision or take steps under s.24A(1)(b) of the Criminal Procedure Ordinance to have a voluntary bill preferred.

44.These consequences would inevitably lead to a serious fragmentation of the criminal trial process.  The fragmentation of that process, involving an increasing number of interlocutory applications and judicial review applications, which delay the hearing of trials and necessitate the vacation of dates fixed for hearing, is a growing problem in the criminal justice system.  The history of the present case is a striking example.  It serves to show as well that the determination of autrefois issues may involve complex issues which are better left to the determination of the trial court or the High Court.  These consequences amount to powerful reasons for refusing to endorse the exercise by examining magistrates of the power to grant a stay for abuse of process in relation to autrefois issues.

45.The preferable approach is to leave the determination of autrefois issues to be dealt with as pleas in bar by the trial court, subject to the exercise, when it is properly invoked, of the High Court’s supervisory jurisdiction to grant a stay of proceedings to prevent an abuse of process arising from the exceptional case in which a defendant is tried twice for the same offence.

46.Dealing with autrefois issues in this way will involve no undue delay.  If it be thought that determination at the trial of a plea in bar in a particular case will involve delay, a defendant can apply to the High Court in the exercise of its supervisory jurisdiction at any time after he has been charged.

47.Article 11(6) of the BOR has nothing to say on this score.  It does not apply to foreign convictions or acquittals, though the common law principle does apply to such convictions and acquittals.  And there are strong reasons for thinking that the expression “liable to be tried” in art.11(6) does not mean “liable to be charged”, though this point has no application to the present case.

Order

48.For the foregoing reasons, the appeal should be dismissed.

Chief Justice Li :

49.The Court unanimously dismisses the appeal.  The parties should lodge written submissions on the proper costs order within 14 days.

Mr Philip Dykes SC and Mr Philip Wong (instructed by Messrs Lau, Chan & Ko) for the appellants

Mr Kevin P Zervos SC and Mr William Tam (of the Department of Justice) for the respondent