Read the full judgment text of CACV 000260/2007 on BabelCite. This Court of Appeal judgment was delivered on 26 February 2008 before Hon Cheung JA, Yuen JJA.
Civil procedure – judicial review – letter of request – inherent jurisdiction – criminal cause or matter – statutory interpretation – Rules of the High Court Order 1 Rule 2(3) – Order 39 – Order 53 – Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) – Evidence Ordinance (Cap 8) s.77E. On 16 January 2007 a magistrate issued three search warrants under the Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) at the Italian Republic's request to enable Hong Kong Police to search the office of Harmony Gold Limited and the residences of its directors and shareholders Paddy Chan and Katherine Hsu, to secure documents for a criminal trial in Italy; on 18 January 2007 the warrants were executed with four Italian nationals (two prosecutors and two investigative accountants) present and participating in the searches. The applicants obtained leave to seek judicial review of the SJ's acceptance of the Italian request, the Police's application for the warrants, the magistrate's decision to issue the warrants, and the execution of the warrants, contending that the warrants did not authorise the four Italians to conduct the searches. The four Italians filed no affirmations, and the applicants issued an originating summons under Order 39 Rule 2 RHC for a letter of request to the Italian judicial authority to examine them. The judge held he had jurisdiction to grant the order but adjourned the discretion question; the SJ appealed. Held, dismissing the appeal: (1) judicial review applies to both civil and criminal matters, and under section 14A of the High Court Ordinance (Cap 4) and Order 53 RHC judicial review of a criminal cause or matter is expressly contemplated; (2) although Order 1 Rule 2(3) RHC excludes the Rules from criminal proceedings, it expressly excepts criminal proceedings to which Order 53 applies, and the applicants' letter of request application, made within a judicial review instituted under Order 53 in respect of a criminal cause or matter, falls within that exception so that Order 39 can be invoked; (3) the inherent jurisdiction of the court to issue a letter of request has not been ousted by the MLAO or section 77E of the Evidence Ordinance, which are permissive regimes giving a procedure where otherwise there is none – the applicants are not persons charged with a criminal offence and so cannot use section 77E(2), and the MLAO does not apply on these facts; an ouster of inherent jurisdiction can only be effected by express language or necessary implication, and neither is present. Following Panayiotou v. Sony Music Entertainment (UK) Ltd and HKSAR v. Lam Kwong Wai, the power to issue a letter of request stems from the inherent jurisdiction of the court. Hunsworth v. Registrar of the Supreme Court distinguished as concerning an application under section 77E rather than Order 39. The discretion whether actually to grant the order is for the judge below. On costs, the appeal and respondent's notice were not treated as separate proceedings for taxation; the SJ, having failed on the substantive appeal, was ordered to pay 80% of the applicants' costs of the appeal.
Legal issues: Whether Order 39 RHC applies in judicial review of a criminal cause or matter despite Rule 2(3) exclusion · Whether MLAO and section 77E EO oust the inherent jurisdiction to issue a letter of request
Outcome: Appeal dismissed. The Court of Appeal upheld the judge below that the High Court has jurisdiction to grant a letter of request under Order 39 RHC in judicial review proceedings relating to a criminal cause or matter.
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