Re Lau Kam Ping
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) MISCELLANEOUS PROCEEDINGS NO. 66 OF 1972 -----------------
----------------- Coram : Blair-Kerr, S.P.J., Briggs and Huggins, JJ. Date: 15 May 1972 ------------------------ J U D G M E N T ------------------------ Huggins, J.: 1. The Applicant applies for an Order of Prohibition to issue against “a purported Board of Reference” constituted under Part IV of the Merchant Shipping (Recruitment of Seamen) Ordinance. The application arises out of an attempt by a duly appointed Board of Reference whose order was quashed by an order of certiorari to renew its proceedings. 2. Upon the application for an order of certiorari many criticisms were levelled against the Board of Reference, but counsel for the applicant indicated that his client would be content with an order quashing only the order of the Board that the name of the Applicant be removed from the Register of Seamen. Counsel for the respondent was in favour of our making such a limited order and, the Court being satisfied that the Board had erred, an order was made accordingly. It was thus assumed by counsel and by the Court that the order of the Board of Reference and the finding of misconduct upon which it was based were separate and distinct proceedings: only if that were so could the one be quashed without the other. 3. At the hearing of the present application the correctness of this assumption has been put in question, for the argument on behalf of the Applicant predicates that the Board of Reference is functus officio. Counsel for the Respondent, on the other hand, contends that as the finding of misconduct was not quashed it is open to the Board of Reference to resume at that point in its deliberations when it found misconduct proved. 4. Orders of certiorari may be directed to inferior courts of record or, as in this case, to a body exercising judicial or quasi judicial functions. Some of the cases appear to refer without distinction to removal of “records” and of “proceedings”, though strictly the former word should probably be used only in relation to courts of record. In criminal cases the practice appears to have been to treat the conviction (in the sense of the finding of guilt) and the sentence as an indivisible whole for the purpose of certiorari. Thus, had it not been for the passing of s.16 of the Administration of Justice Act 1960 in England, the applicant in Reg. v. Uxbridge Justices, ex parte Clark(1) would have escaped punishment, although clearly guilty, because the justices had wrongly failed to suspend a sentence of six months’ imprisonment. (We have no equivalent of s.16 in Hong Kong). Where an order is severable then, even in criminal proceedings, that order may be quashed without quashing the entirety of the proceedings before the Court: Reg. v. Arundel Justices ex parte Jackson(2). 5. Since both parties invited the Court to make the limited order of certiorari which was made and since that order still stands I think it is doubtful whether it is open to the Applicant now to suggest that this Court should proceed upon some other basis. However, if we thought that on the merits the application should be dismissed it would be unnecessary to decide this doubtful point. A decision on the merits requires a review of the provisions under which a Board of Reference acts. The case came before the Board by virtue of a reference under s.18(1), which provides that where it appears to the Superintendent of the Seamen’s Recruiting Office that a seaman has been guilty of misconduct on a ship of such a serious nature as to render it undesirable that the seaman should continue to serve in foreign going ships the Superintendent may suspend the registration of the seaman and forthwith refer the case to the Seaman’s Recruiting Authority. The Authority is then bound under s.21 to refer the case to a Board of Reference and to serve on the seaman a notice specifying the date on which the case will be heard. The material parts of the statute then are:
It is argued that, since s.30 contemplates first a decision that the power to direct removal from the Register may be exercised and requires that there shall then be service of notice on the seaman, the hearing which follows the service of notice is a separate proceeding. It is said that a distinction must be drawn between criminal and civil proceedings and reliance is placed upon R. v. Northumberland Compensation Appeal Tribunal ex parte Shaw (3). That case, as it seems to me, is not authority for the proposition advanced. The proceedings before the tribunal were an appeal. The decision at first instance which was appealed against was not quashed. There was always a right of appeal against it. The proceedings upon the first appeal were quashed but that did not deprive the applicant of his right of appeal and it was for that reason that the court said “.... once the order is quashed it follows that the applicant will be able to go back to the appeal tribunal”. As I see it the only difference between a criminal proceeding and a civil proceeding is that in relation to criminal proceedings there is the principle nemo debet bis vexari …. Thus, where a conviction has been quashed, if another attempt be made to proceed upon the Information the defendant can properly object that he is being put in peril for a second time for the same offence. No such principle applies in relation to civil proceedings and in any event would not be applicable if it were only a proceeding on appeal which was quashed. The case before us relates in truth to a quasi criminal proceeding at first instance and I see no more occasion to separate the “conviction” from the “sentence” than there is in relation to a criminal prosecution. That being so I think we should not have limited the order of certiorari in the way we did. Had we quashed the whole proceedings, however, there would in my view have been no obstacle to a fresh hearing of the reference to the Board of Reference. This is not a criminal prosecution and it would be highly inconvenient if there were no way of bringing it to a conclusion, though whether or not the suspension under s.18(ii) survived the order which has been quashed is, I think, open to question. It is true that s.29(2) and (3) appear to contemplate that where the Board of Reference does not itself order suspension or removal it must direct the Superintendent to withdraw the suspension made under s.18. However, where the Board of Reference does order suspension or removal I tend to the view that the order under s.18 becomes thereafter merged in, or is superseded by, the subsequent order.6. What, then, ought we to do? The parties consented to the limitation of the order of certiorari and although in my view it was wrong for us to accede to the suggestion (I hasten to interpose that Mr. Justice Briggs was not a member of the Court on that occasion) I now think we cannot treat our order as though it had quashed the whole proceedings: the parties are bound by the order as it stands. That being so I am of opinion that the Board of Reference may properly continue with the proposed hearing and, for the reasons I have given, I would dismiss this application for an Order of Prohibition. (1) 1968 2 All E.R. 992 (2) 1959 2 Q.B. 89. (3) 1951 1 K.B. 711. |