Read the full judgment text of HCAL 000042/2008 on BabelCite. This High Court CFI judgment was delivered on 9 February 2009 before Hon Wright J.
Constitutional and administrative law – judicial review – venue of criminal trial – decision of Secretary for Justice to transfer indictable offence from Court of First Instance to District Court under s.88 of the Magistrates Ordinance (Cap. 227) – applicant charged with conspiracy to defraud, fraud and related offences – whether absolute or qualified right to trial by jury exists in Hong Kong – whether Article 86 of the Basic Law confers a right to jury trial – whether respondent's decision amenable to judicial review – whether reasons furnished for venue decision adequate – applicants argued that Article 86 preserved a constitutional entitlement to jury trial and that reasons for transfer were insufficient – court held that no right to elect trial by jury exists at common law or under the Basic Law – Article 86 preserves the pre-existing principle under which the Attorney General (now Secretary for Justice) has unfettered discretion as to venue – pre-Basic Law authorities (R v Wong King Chau [1964] DCLR 94; In an application by David Lam Shu-tsang (1977) HKLR 393; David Lam Shu-tsang v Attorney General CACV42/1977) confirm the absence of any right of election and that the transfer machinery under the Magistrates and District Court Ordinances effected a deprivation of the former common law right to jury trial – the magistrate's transfer order is not appealable under s.89(2) of the Magistrates Ordinance – Secretary's discretion is subject only to supervision for abuse of process or bad faith, consistent with prosecutorial independence under Article 63 of the Basic Law (Re: C (A Bankrupt) [2006] HKC 582) – where reasons are furnished they are open to ordinary public law scrutiny as to adequacy (R v Criminal Injuries Compensation Board, ex parte Moore [1999] 2 All ER 90) – adequacy depends on context, nature of decision, legislative framework and decision-maker – venue is the Secretary's responsibility, guided by prosecution policy (HKSAR v Pearce [2006] 3 HKC 105) – likely sentence falling within District Court's jurisdiction is an important and potentially determinative factor (KWOK Chi-wai v HKSAR CACC12/2005; TAI Chi-wai v HKSAR CACC497/2006) – on the facts, the respondent's letters of 20 March 2008 and 14 August 2008, confirming careful consideration of detailed representations, full weight given to the facts, culpability, prejudice and likely sentence, and the absence of any matter peculiar to the applicants preventing a fair trial in the District Court, constituted adequate reasons – both applications dismissed – applicants to pay respondent's costs of the applications and of the leave applications, to be taxed if not agreed – appeals to Court of Appeal subsequently dismissed (CACV 55/2009; CACV 151/2009, 21 September 2009).
Legal issues: Effect of Article 86 of the Basic Law on trial by jury · Scope of judicial review of the Secretary for Justice's venue decision · Adequacy of reasons for venue decision
Outcome: Both applications for judicial review dismissed. Both applicants' subsequent appeals to the Court of Appeal were also dismissed (see CACV 55/2009 and CACV 151/2009 dated 21 September 2009).
Cited by 4 cases