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: 11 April 1972 ------------------------ J U D G M E N T ------------------------ Briggs J.: 1. I do not intend to go into the facts of this case. I have read the judgment of the other members of the Court. And I too agree that this application must be dismissed. 2. The general rule is that an order of certiorari results in the quashing of the whole proceedings before the Court to which it is directed. 3. In my opinion the order of the Board of Reference and the finding of misconduct on which it was based are not separate proceedings. They are parts of one proceeding. It follows therefore that in my view the Order of the Full Court quashing the Order of the Board that the name of the Applicant be removed from the Register and not quashing the whole of the proceedings was based on a wrong principle. I do not think that this is a case where part only of the proceedings of an inferior court of tribunal can be quashed by an order of certiorari. 4. The rule is that a court cannot amend the proceedings of an inferior tribunal by an order of certiorari. I suggest it was to remedy this that Section 16 of the Administration of Justice Act, 1960 was enacted. 5. Before the passing of that section there was one exception to the general rule outlined above. It was held that an order of disqualification from holding a driving licence was severable from a conviction for driving without due care and attention and could be quashed by an order of certiorari. The result being that the conviction for the latter offence and the penalty therefor remained undisturbed: only the order of disqualification being quashed. [See R. v. Arundel Justices ex parte Jackson](1) I confess I do not understand the reasoning behind that case. 6. We have not had our attention drawn to any other case where a limited order for certiorari was made. And I think that it is only where the Court is dealing with a conviction for a traffic offence where an order for disqualification is also made that such a limited order can be made. 7. The certiorari proceedings concerning the hearing before the Board are not before us in this application. I do not think that we can hold that by granting a limited order of certiorari the Court intended to quash the entire proceedings. Plainly that is not the case. The Court intended to quash the result of these proceedings only and the order made was made by consent. 8. I have read the record of the proceedings and I will say at once that they were conducted in a way which leaves much to be desired. 9. However I consider that on the facts placed before us the Court has a discretion whether or not to grant an Order of Prohibition. I do not think we should exercise our discretion in the applicant’s favour. He agreed to the limited order for certiorari and he cannot be now heard to complain. The application must be dismissed. Whether it will be possible for the applicant to bring further proceedings if the Board decides to hold a further hearing or come to a final decision on what they have already heard, I do not pretend to state. 10. The application must be dismissed.
B.M.W. Downey (Gordon Hampton & Winter) for Applicant B.P. Clancy, C.C. for A.G. Director of Marine Commissioner of Labour Superintendent of Seamens Recruiting Authority(1) 1959 2 Q.B. 89 |