Re Ko Kit
Read the full judgment text of CACV 138/2008 on BabelCite. This Court of Appeal judgment was delivered on 17 June 2008 before Stuart-Moore VP, Stock JA.
Criminal law – judicial review – leave to apply for judicial review – permanent stay of criminal proceedings – legal professional privilege – Article 35 of the Basic Law – Article 14 of the Hong Kong Bill of Rights Ordinance – Court of Final Appeal Ordinance (Cap 484) s.32 – certificate of points of law of great general importance – satellite litigation in criminal cases – remedy of last resort – arguability test – DCCC 127/2005 – alleged deliberate violation of LPP by law enforcement officers in joint conspiracy prosecution – three accused applicants sought judicial review of trial judge's refusal to permanently stay proceedings – trial judge found violation of LPP but not an affront to public conscience – Hartmann J refused leave to apply for judicial review – Court of Appeal dismissed appeal on 27 May 2008 – applicants sought certificate to appeal to Court of Final Appeal – four questions posed regarding permissibility of judicial review, threshold test, circumstances warranting stay, and extension of stay to co-accused – court held it had not ruled out judicial review absolutely nor suggested a threshold higher than arguability test – court emphasised judicial review is remedy of last resort and satellite litigation in criminal cases should be permitted only rarely – third and fourth questions were fact-sensitive and unsuitable for certification – certificate refused.
Legal issues: Certification of points of law of great general importance under s.32 CFA Ordinance
Outcome: Application for certificate under s.32 of the Court of Final Appeal Ordinance refused; no leave to appeal to the Court of Final Appeal granted.
Cites 1 case
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cacv 138, 139 & 140 /2008 CACV 138/2008 in the high court of the hong kong special administrative region court of appeal civil appeal no. 138 of 2008 (on appeal from HCAL NO. 45 of 2008) ________________________
AND CACV 139/2008 in the high court of the hong kong special administrative region court of appeal civil appeal no. 139 of 2008 (on appeal from HCAL NO. 44 of 2008) ________________________
AND CACV 140/2008 in the high court of the hong kong special administrative region court of appeal civil appeal no. 140 of 2008 (on appeal from HCAL NO. 46 of 2008) ________________________
________________________ Before: Hon Stuart-Moore, VP and Stock JA in Court Date of Hearing: 17 June 2008 Date of Judgment: 17 June 2008 ________________________ J U D G M E N T ________________________ Hon Stock JA (giving the judgment of the Court): 1.On 27 May 2008, we dismissed an appeal from a judgment of Hartmann J by which he refused three applications for leave to apply for judicial review. The applications for judicial review constituted satellite litigation seeking to set aside the refusal of a District Court Judge to stay proceedings. Satellite litigation should, we said, be permitted only rarely in criminal cases, a point strongly emphasized in other jurisdictions as well, previously, as in ours. We took the view, as had Hartmann J, that this particular case, viewed in its full context, was not a case for the adoption of that wholly exceptional course. 2.The applicants have each filed a notice of motion by which they seek leave to appeal to the Court of Final Appeal from our decision and the application as framed is an application under section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. But Mr Lee, SC, for the applicants, this morning properly concedes that that is not the appropriate limb for this application which is in a criminal cause or matter, and the application is therefore now presented under section 32 of the Hong Kong Court of Final Appeal Ordinance for a certificate by this Court that points of law of great general importance are involved in our decision. 3.The questions posed have been slightly modified from those in the notice of motion and they are now as follows:
4.As to the first question, there are two points, we think, to be made. The first is that we did not find that it would never be permissible to mount an application for judicial review on the ground suggested. Secondly, the matter is fact-sensitive as the judgment showed in the court below, for the judge said that there was nonetheless in the full circumstances of this case not an affront to the public conscience. 5.In relation to the second question, we did not suggest a threshold test higher than the arguability test for the application for leave. We specifically pointed out that in the case before us the question of arguability was not the sole issue (see para 27 of our judgment). There was a second and key issue: namely, the principle that judicial review was a remedy of last resort, so that especially in criminal cases there should not – as has become the habit – be satellite litigation, save in the most exceptional cases, and it is in the context of that question that we referred to a variety of matters to which the judge had referred in his decision-making process, reasons which on their face appeared relevant and which, if they were to be examined further, should be examined in the normal course of the appellate process. In short, this was not one of those highly exceptional cases in which a collateral challenge was warranted. We did not agree, incidentally, with the suggestion in argument before us that our judgment is to be read as deciding that the mere absence of a transcript of evidence is determinative against such applications. 6.The third and fourth questions are fact-sensitive and not in our judgment suitable for certification. 7.Accordingly, we refuse to certify the questions posed.
Mr Martin Lee, SC, Mr Hectar Pun & Mr Newman Lam, instructed by Messrs Tung, Ng, Tse & Heung for all applicants Mr Alex Lee, SADPP of the Department of Justice, for the Respondent |
Cases cited in this judgment
Further hearings and rulings under CACV 138/2008