Keung Siu Wah v. Attorney General

CACV000112/1989

Administrative and constitutional law - whether Attorney General's decision to prosecute immune from judicial review.

BETWEEN

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Coram: Fuad, V.-P., Hunter & Penlington, JJ.A.

Dates of Hearing: 20, 21 and 22 February 1990

Date of Handing Down Judgment: 2 March 1990

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JUDGMENT

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Fuad, V.-P.:

1. This is an appeal by Mr. Keung Siu Wah ("the applicant") against a decision of Mayo, J.. The matter arose in this way. The applicant filed an application for leave to apply for judicial review on 23rd March 1989. The application was made ex parte, as required by RSC O.53, r.3(2). Mayo, J. granted leave on 7th April 1989. On 24th April the Attorney General, the respondent in this application, applied under O.32, r.6 to set aside the judge's order. This appears to be the appropriate procedure for challenging an order for leave granted ex parte: R. v. Secretary of State for the Home Department, ex p Herbage (No.2) [1987] QB 1077 (CA). After a 5 day hearing in June, Mayo, J., in his reserved judgment dated 3rd July 1989 granted the relief sought by the Attorney General. The applicant appealed.

2. At the conclusion of Counsel's submissions in support of the appeal we dismissed the appeal without calling upon Counsel for the Attorney General. These are our reasons for that decision.

3. The notice of the application to the High Court required by the rules stated that relief was sought in respect of a charge preferred by the Attorney General against the applicant dated 4th January 1989. The charge was attached as a schedule:

" In the District Court of Hong Kong

4. The notice stated the relief sought, and the grounds upon which it was sought, in these terms:

A hearing was requested pursuant to O.53, 4.3 (3).

5. I will now attempt to summarise the applicant's affirmation dated 28th March 1989 verifying the facts upon which he intended to rely, required by 0.53, r.3 (2) (b). He said that he was formally charged on 3rd January 1989 by an Inspector of the Commercial Crime Bureau ("CCB") of the Police Force with conspiracy to defraud. On the next day the charge I have set out above was preferred against him.

6. He went on to say that he was deeply aggrieved; the subject matter of the charge was a loan of HK$900,000 made by Trilease International Ltd. ("Trilease") to Lai Man Kee Engineering Co. Ltd. in July 1984' ("the Loan"). He was a guarantor of the Loan. In about December 1984 or January 1985, a Detective Sergeant of the CCB had questioned him under caution about the loan. He had then exercised his right of silence.

7. He was, he said, not charged in connection with the Loan. Instead he had been charged on "5 quite similar counts of conspiracy to defraud" and put on trial before the Supreme Court in April 1986. In the course of giving evidence, he had told the Court that he had been involved in those transactions because he wanted to repay the Loan. He had been convicted on 2 counts. In passing sentence (2 years imprisonment for each offence, to be served concurrently) the judge had taken into account the fact that he had repaid part of the Loan.

8. On 3rd July 1987, an European Detective Inspector of the CCB came to see him and told him that they wanted him to be a prosecution witness in the case about the Loan and that he would not be prosecuted if his evidence were true and useful. He had therefore decided to co-operate with the police.

9. The applicant exhibited a copy of the English translation of a statement he has made to the CCB on 3rd July 1987. Although on page 3 , there was a warning by the Sergeant who took it that he had no power to give an undertaking that he would be allowed to be a prosecution witness and that it was a matter for the Crown Prosecutor to decide, the Sergeant had assured him that he would not be prosecuted if his evidence were true and useful.

10. The applicant said he had continued to co-operate with the CCB and had given 2 additional statements - on 7th July and 13th July 1987. On each occasion the Sergeant had assured him that he would not be prosecuted.

11. The applicant continues his affirmation by saying that on 19th October 1987, just when he had been released from  prison, he was taken back to the CCB and told that he was being arrested. He was very surprised and asked why they were arresting him. He was told that it was because they were afraid that he would run away. He continued to be co-operative with the CCB and gave a further statement on the same day. He was released on police bail in the sum of HK$5,000.

12. The applicant then said that after 19th October 1987, he still continued to co-operate with the CCB and had gone there about 10 times. Nearly every time he had been told that he would not be prosecuted. He had been shown a report by a Senior Inspector to the Legal Department recommending that he should not be charged.

13. The applicant adds that during the course of investigation he had also provided the CCB with documents which included some described in the affirmation. On 3rd January 1989, when he had gone to the CCB to renew his bail, he had been directed to a different "team" and suddenly charged by the CCB for conspiracy to defraud with respect to the Loan.

14. The applicant explains in detail why he considers that the then Marketing Manager of Trilease was in a position to help him defend himself successfully. However, he had been told that he had emigrated to Canada. He also mentions two female employees who would help his defence. But, he says, due to the delay in prosecuting him, the memories of these former employees might have been adversely affected thereby rendering them unlikely to be as great assistance to him.

15. In his reserved judgment Mayo, J. observed that what he had to decide was whether the Attorney General had been able to show that the applicant's application was either hopeless or misconceived.

16. The judge said that it was not constitutionally correct to attribute to the Attorney General any misconduct on the part of members of the Police Force. Police Officers were answerable for their actions to the Commissioner of police, not the Attorney General. What was being attacked was the decision of the Attorney General to proceed with the charge.

17. The judge then said that he was satisfied that the law had been "admirably summarised" by the house of Lords in Gouriet v. Union of Post Office Workers [1978] AC 435 and cited various passages from the speeches of Lord Wilberforce, Viscount Dilhorne, and Lord Edmund Davies. The judge cited passages from the joint judgment of Gibbs and Mason, JJ. in the Australian case of R. v. Barton (1980) 32 ALR 449 and from the judgment of Fauteux, C.J.C. in the Canadian case of R. v. Smythe (1971) 3 CCC (2nd.) 366.

18. The judge went on to discuss R. v. Heston-Francois [1984] 1 All ER 784 and remarked that if the applicant were able to establish that either the Attorney General or any of the police officers against whom complaint was made had been guilty of abusing the process of the court or acting in an oppressive manner towards him, the District Court Judge would have power to dismiss the charge.

19. The judge cited a passage from the judgment of Sir Roger Ormrod in R. v. Derby Crown Court, ex parte Brooks (1985) 80 Cr.App.R. 164, sitting in the Divisional Court with the Lord Chief Justice. This is the passage cited, at pp.168-169:

20. The judge noted that counsel for the applicant had placed heavy reliance on Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374. If he (the judge) had understood counsel's arguments correctly, it had been contended that that case provided authority for the proposition that the Court had power to review actions of even a Minister acting under prerogative powers in the same way as it had power to review a statutory power. The judge felt that this might be correct, but the discretion of the Attorney General to proceed with a charge against a defendant was an entirely different matter. The passages he had earlier cited from the speeches of the Law Lords in Gouriet had dealt specifically with the discretion to prosecute and there was nothing in any of the speeches in Council of Civil Service Unions v. Minister for the Civil Service which in any way departed from the underlying principles propounded in Gouriet.

21. Mayo, J. then cited from the speech of Lord Diplock in the Council of Civil Service Unions case, regarding it as a classic statement of the principles laid down as to when judicial review would be available at pp. 410-411:

22. Mayo, J. added that there was nothing on the material before him which could remotely bring the Attorney General's decision to proceed with the Prosecution against the applicant within the scope of Lord Diplock's criteria.

23. The judge ended his judgment by saying that he had reached the conclusion that the application had been misconceived.

24. Although the judge set aside the ex parte leave he had given, he ordered a stay of "all proceedings in relation to a charge preferred by the Attorney General" pending this appeal, continuing the earlier stay.

25. The first submission made by Mr. Bernacchi for the applicant/appellant was that the judge had apparently ignored many authorities both in Hong Kong and in the United Kingdom which were very relevant to the issue before the Court. Moreover, since the judge had approached the case upon the basis that the contents of the applicant's affirmation were true, Counsel was unable to see how the three criteria mentioned by Lord Diplock in the Council of Civil Service Unions case, namely, illegality, irrationality and procedural impropriety were not applicable to this case. He acknowledged that the judge had correctly stated that the subject of the complaint made by the applicant was the Attorney General's decision to prosecute him and Counsel was happy to accept the judge's test that he should set aside the leave granted to apply for judicial review if the application was wholly misconceived.

26. Mr. Bernacchi contended that Gouriet relied upon by the judge flew in the face of the authorities of the Court of Appeal in Hong Kong where the discretion was not in the exercise of the prerogative but the application of section 14(1) of the Criminal Procedure Ordinance which used the expression "legal and proper". Moreover, the effect of Gouriet in England had been considerably watered down by subsequent authorities which showed that judicial review lay against "top officials" in the British Government even in the case of the exercise of prerogative powers, unless considerations of national security were proved to be involved.

27. Mr. Bernacchi then referred us to a number of Hong Kong authorities, followed by cases decided in England, and then pointed out that in the present case the Attorney General had fought the application by seeking to strike it out and not with an affidavit made by himself or on his behalf giving the reasons for his decision, a decision which was against all the promises and assurances given to the applicant for over one year, and on account of which the applicant had co-operated with the police. The applicant had been prejudiced in the way set out in his affirmation. He submitted that Mayo, J. was wrong in law on the basic issue, whether or not the Attorney General's decision to prosecute was ever reviewable.

28. Mr. Bernacchi referred to a number of the authorities on "legitimate expectation" including the decision of the Privy Council in the Hong Kong case of The Attorney General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 69 and argued that it did not matter whether or not the officer in charge of the investigation which led to the applicant's prosecution was or was not authorised by the Crown to give the assurances that he had given. The police officer was a crown servant and it was abundantly clear from the authorities that it was not in the best interest of the Crown to go back on such promises given by Crown servants.

29. Mr. Bernacchi contended that the judge was wrong to consider what redress might have been available to the applicant in the District Court itself. He submitted that at the trial the main issue would be whether or not the applicant was guilty. There was nothing to prevent the judge from going on with the trial if he refused to stay it as an abuse of the process of the Court. However, he emphasized that the applicant's case in the civil proceedings for judicial review was that in the whole circumstances of the matter the Attorney General (through the Legal Department) had illegally, irrationally and procedurally unfairly, exercised his discretion in charging the applicant in the first place. Mr. Bernacchi submitted that the bases upon which the District Court might act were quite different from those applicable to a judicial review in the High Court. There was, he suggested no nexus between the guilt or innocence of the applicant as a defendant in a criminal trial and the civil issue whether or not the application for judicial review was so hopeless and misconceived in law that it ought to be stopped in limine.

30. Counsel complained that the judge had not considered the inordinate delay that had had ensued which had caused such prejudice to the applicant. There had been delay even after the applicant had been released from two years' imprisonment, despite the fact that the subject matter of the present charge was known to the police at least in late 1984 and had been mentioned to the Court which had tried him for the other offences.

31. Mr. Bernacchi argued that apart from the fact that if the applicant's complaints were left to be aired before the District Court, R. v. Heston-Francois showed that there was no general duty to conduct a pre-trial inquiry into them (I mention in passing that Watkins, L.J. discusses the advantages of dealing with such matters during the course of the trial itself at [1984] 1 All ER 791-2) the applicant would be prejudiced if his application for a stay to the District Judge failed because the judge would necessarily have had to be told about the previous convictions. Furthermore if the District Judge refused to stay the proceedings it would be a very difficult matter to challenge the exercise of his discretion. While "simple unfairness" was not, perhaps, sufficient to establish an abuse of the process of the Court, it might well be enough to persuade the High Court to grant relief by way of judicial review. Mr. Bernacchi argued that even if the Attorney General's Chambers had had no knowledge before the present proceedings had begun of the repeated assurances given by the police, the Attorney General, through the appropriate officer in the Legal Department, should have looked again into the matter when these proceedings were instituted. He should then either have withdrawn the charge or have explained on affidavit why, despite these assurances, and the prejudicial long delay there has been in bringing this charge, it should still be maintained. The Attorney General had clearly committed breaches of natural justice, being in breach of clear promises and/or assurances made to the applicant by officers of the State.

32. I share Mayo, J.'s view of the importance and value of the speeches of their Lordships in Gouriet's case. Although by the time the case reached the House of Lords, in the words of Lord Wilberforce (at p.475) there was "no longer a claim that the Attorney-General's refusal of consent to relator proceedings was improper or that it can be reviewed by the Court", an issue "originally presented as one of great constitutional importance", their Lordships were at pains, in trenchant language, to deny the Courts any jurisdiction to review or direct the exercise of the Attorney General's discretion in the area of public rights and where the public interest is involved.

33. I begin by citing what Lord Wilberforce said at [1978] AC 477 D-F:

"A relator action - a type of action which has existed from the earliest times - is one in which the Attorney-General, on the relation of individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out."

34. Lord Wilberforce, at p.478, Viscount Dilhorne, at p.488 and Lord Edmund Davies, at p.509 all approved the speech of Lord Halsbury, L.C. in London County Council v. Attorney-General [1902] AC 165. I will cite only Lord Wilberforce's reference to it, at p.478-9 of the report of Gouriet:

"             It was this consideration [the Attorney-General's right and duty 'to consider the public interest generally and widely'] which led to the well known pronouncement of the Earl of Halsbury L.C. in 1902, for the suggestion was being made that the court could inquire whether, when the Attorney-General had consented to relator proceedings, the public had a material interest in the subject matter of the suit:

'... the initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General': see London County Council v. Attorney-General [1902] AC 165, per Earl of Halsbury L.C. at p.169 and per Lord Macnaghten at p.170.

Dealing with the contention that the Attorney General could always be made a party, his Lordship added:

After his citation from Lord Halsbury's speech in London County Council v. Attorney General he noted that Lord Macnaghten had agreed with those observations and remarked:

"Although obiter, they nevertheless have great authority and in my opinion the view that refusal of consent to a relator action is an exception to the general rule and is subject to review by the courts must be rejected. It is because I think it undesirable that any judicial observations suggesting that the exercise by the Attorney-General of these functions and duties is subject to control, supervision and review by the courts should be left unanswered that I have ventured to make these observations."

35. At p.507 Lord Edmund Davies commented upon Lord Denning's "stern language" in the Court of Appeal when he suggested that the Attorney General's stand meant that he, his predecessors and successors "can, one after another, suspend or dispense with the execution of the laws of England" and observed:

"This sounds most alarming, but it has to be said that Attorneys-General have for generations possessed and exercised that very power in relation to criminal prosecutions, notwithstanding which the heavens have not fallen and the stars stay in their courses."

36. His Lordship, referring to Edwards, The Law officers of the Crown (1964) pp.222-223. Stressed at p.511 that the Attorney-General frequently had sources of information not generally available and was required to "bear in mind considerations which may be undervalued when one considers injury to the public merely in terms of immediate injury." Lord Frazer of Tullybelton makes the same point more fully at p.524 and echoes the view of Lord Edmund Davies, at p.512, that the exercise of the Attorney General's discretion is a matter for "disputation" in Parliament. He says:

"Enforcement of the criminal law is of course a very important public interest, but it is not the only one, and may not always be the predominant one. There may be even more important reasons of public policy why such procedure should not be taken at a particular moment, and it must be proper for the Attorney-General (acting of course not for party political advantage) to have regard to them. He may have information that there is a good prospect of averting the threatened illegal conduct by negotiation. Or he may know that the time would be particularly inopportune for a confrontation. Or he may regard it as essential to leave the way clear for subsequent prosecution before a jury. The information before him may be confidential and, even if it is not, it may not be widely available to the public. For reasons of that sort I would be against stretching the, law to allow a member of the public to launch preventive proceedings without the consent of the Attorney-General. If the Attorney-General were to commit a serious error of judgment by withholding consent to relator proceedings in a case where he ought to have given it, the remedy must in my opinion lie in the political field by enforcing his responsibility to Parliament and not in the legal field through the courts. That is appropriate because his error would not be an error of law but would be one of political judgment, using the expression of course not in a party sense but in the sense of weighing the relative importance of different aspects of the public interest. Such matters are not appropriate for decision in the courts."

37. It seems to me that these powerful dicta are applicable to the matters raised by this appeal because their Lordships made it plain that the decision either way on Mr. Gouriet's application was not reviewable by the  Courts for the very same reasons that the Attorney General's decision whether or not to institute a criminal prosecution was not subject to review by the Courts.

38. In Pearlberg v. Varty [1972] 1 WLR 534 (HL), which' concerned the true construction of provisions in an income tax statute, Lord Pearson emphasised the difference between the essentially administrative function of the Attorney General giving his consent to a prosecution and the decision of a court after a hearing that there is a prima facie case. At p.548 he said:

"Secondly, the decision is predominantly of an administrative or executive character. It is true that the commissioner has to be satisfied that there are reasonable grounds for a belief and this might have formed part of a judicial operation. But he does not determine any rights or liabilities. He merely gives leave for something to be done, i.e., for assessments to be made. The determination of rights and liabilities, if there is any dispute about them, comes later when the person who has been assessed for tax appeals against the assessment and his appeal is heard in a judicial or quasi-judicial proceeding. The commissioner's decision to give leave for an assessment to be made is analogous to a decision by the Attorney General or the Director of Public Prosecutions to give his consent to a prosecution in cases where such consent is required by statute. This function differs in character from the decision of a magistrate or a bench of magistrates that there is a prima facie case for the prosecution justifying committal of the accused for trial, when in accordance with statutory provisions there is a formal sitting in court and each side has an opportunity to present evidence and argument, and plainly a judicial jurisdiction is being exercised."

39. Before I turn to consider the Hong Kong authorities, I wish to indicate that my decision does not turn on any reference to the Attorney General's powers and duties in statutes such as the Legal Officers Ordinance, the Criminal Procedure Ordinance, the District Court Ordinance and the Magistrates Ordinance. Nor do I consider that modern authorities require or permit the Court to apply different tests as to reviewability depending upon whether the decision to prosecute or not to prosecute is made by the Attorney General under prerogative powers or under statutory powers.

40. Cheung Sou-yat v. The Queen [1979] HKLR 630 concerned the validity of the consent of the Attorney General to a charge, required by the Prevention of Bribery Ordinance. Huggins, J.A. said this at p.636, having made no reference to Gouriet:

"It was argued that even in the unlikely case where it was manifest that an Attorney General had acted unfairly the court could not intervene. That may be right, it is not necessary to go so far in the present case and I wish to go no further than is necessary. If I have correctly stated the freedom of the Attorney General to  consider such factors as he himself thinks material, it is difficult to envisage a case where unfairness would be manifest, though one has been suggested: see Commonwealth and Colonial Law by Sir Kenneth Roberts-Wray at p.351. Should such a case ever arise I would not want to be inhibited by some incautious dictum here."

41. Cons, J. as he then was, referred to what Lord Wilberforce had said in Gouriet at [1978] AC p.482E-F and observed, at p.639:

"Despite these powerful arguments I am not prepared to accept that the exercise or refusal of his discretion can never be called in question. I take the speeches of their Lordships in Padfield v. Minister of Agriculture, Fisheries and Food to be sufficient authority that the courts may, if the circumstances so warrant, enquire into the exercise of any executive direction. They will not usurp that discretion, not even by indirect means. That I take to be the true effect of Gouriet's case. And I find nothing therein to contradict the basic principle of Padfield that the courts may  look to see if the discretion has been properly exercised according to law."

42. Yang, J., as he then was, expressed his views at p.641.:

"I do not think anyone would quarrel with the general proposition of law that the courts cannot review the Attorney-General's exercise of his discretion. Where the Attorney-General refuses to disclose his reasons for the exercise of his discretion, it should not be inferred that he acted wrongly: per Viscount Dilhorne in Gouriet v. Union of Post Office Workers. Even if good legal reasons for his decision were not immediately apparent, the inference that he abused or misused his powers is not that should be drawn: per Viscount Dilhorne in Gouriet, at p.91e. But this is far from saying that in no circumstances may the courts question the Attorney-General's exercise of discretion."

43. I would mention here that in an earlier, unreported, decision, Attorney General v. Chung Yim-Fai, Criminal Appeal No. 757 of 1978 (11th September 1978), Cons, J. had said:

"The Attorney General has well-established prerogative powers and duties in relation to criminal proceedings. In exercising these powers he (is) not subject to direction by his administrative colleagues or to the control or supervision of the court': per Viscount Dilhorne in Gouriet's case. What charge should be preferred in any particular circumstances is a matter for the Attorney's discretion and for his discretion alone. No magistrate should seek by the use of section 27 to exercise that discretion in his stead. There may well be circumstances which influence his choice that are not apparent to the magistrate or which, although perfectly legitimate in themselves, might not perhaps commend themselves to the magistrate."

44. As regards the Attorney General's discretion to grant immunities, in The Queen v. Tsui Lai-ying and others [1987] HKLR 857, Silke, V.-P., at p.873, discussed Gouriet, Cheung Sou-yat, Padfield and The Council of Civil Service Unions and observed:

"[Counsel for the Crown] contends that the court in Cheung Sou-yat misread, and therefore misapplied Padfield. He contends for something not unlike the divine right of kings to apply to the exercise of his powers by the Attorney General. I do not agree. I think, as the judge here said, that there may, in exceptional circumstances, be a right to review the exercise of those powers. I think the judge to have been right when he said that the circumstances here did not call for intervention by the courts and, on this ground in any event, in discharging the summons to Mr. Hodge."

45. In my judgment the first thing to note about the dicta in those cases is that they were uttered in judgments on appeal against conviction and not in judicial review proceedings. I can discern nothing in the observations of their Lordships that would give support to the contention that any of the decisions of the Attorney General which they were addressing could be made the subject of judicial review proceedings under RSC O.53. It seems to me that my brothers were anxious to reserve a right to the Courts to intervene to prevent an abuse of process which prejudices a defendant on the lines of Lord Reid's statement in Connelly v. D.P.P. [1964) 1254 (HL) at p.1296 ".... I think there must always be a residual discretion to prevent anything which savours of abuse of process."

46. Sears, J. in Tang Yee-chun v. Attorney General [1988] 2 HKLR 408 had before him an application for judicial review of a decision by the Attorney General to seek the consent of a High Court judge to prefer an indictment without prior committal proceedings, pursuant to s.24A (1) (b) of the Criminal Procedure Ordinance. Sears, J. reviewed the authorities and at p.414-5 observed:

Later, at p.415, Sears, J. referred to the dicta in Cheung Sou-yat and said:

47. Leaving aside for the moment the power of a Court to prevent abuse of its process, in my judgment Sears, J. was right to hold that the Attorney General's decision in that case could not be made the subject of judicial review.

48. I entertain no doubt whatever that the decision to prosecute in the instant case, likewise, is not subject to the judicial review process; such a decision does not fall within the criteria for a reviewable decision stated by Lord Diplock in Council of Civil Service Unions at pp.408-409. Only the Attorney General has access to all the necessary information. The cases stress (e.g. Chief Constable of North Wales Police v. Evans [1982] 1 WLR 1155, 1173) that judicial review is concerned with reviewing, not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process itself. In the case of a decision by the Attorney General to institute a prosecution how is this review to be conducted? I note here that Mr. Bernacchi conceded that if a decision to prosecute were judicially reviewable, then so would be a decision not to prosecute.

49. I can imagine few subjects less adapted to the judicial review procedure under O.53 than the exercise of the Attorney General's discretion in deciding whether to institute criminal proceedings and what charge should be preferred. In the light of the grounds upon which the applicant sought relief in this case, there would have to be affidavit evidence (and leave to cross-examine would almost inevitably be sought) on such matters as the circumstances surrounding the taking of the statements from the applicant, presumably from all the police officers involved; what evidence, other than the statements, was available in 1984 and is available now; any reasons there might be for the alleged unfair delay; what was the nature of "quite similar counts of conspiracy" upon which the applicant was tried in the High Court in 1986, and so much more. I have assumed that the Attorney General would  not be proceeding with the prosecution if he accepted the applicant's complaints.

50. In this context, I think that the following, from Vol.1 (1) of Halsburys Laws of England (4th Edition, Reissue), para.176 is instructive and helps to show how inappropriate judicial review proceedings would be for the investigation of the matters raised by the applicant:

51. And what if the judge on judicial review rejects, say, the allegations that the applicant was tricked by the police into making the inculpatory statements, presumably on the balance of probabilities? Would all the evidence have to be gone through again at the trial (there could surely be no issue estoppel) with the onus on the prosecution to establish beyond reasonable doubt that no promises which induced the statements were made to the applicant?

52. Apart from all this, it cannot be in the public interest to delay a trial, (particularly, as here, where others are jointly charged) until the judicial review process, followed by a possible appeal from either side, has ended, unless it is unavoidable. In the instant case, the procedure which the applicant invoked resulted in 12 months' further delay.

53. I now return to Barton v. R. (1980) 32 ALR 449 and to the judgment of Gibbs and Mason, JJ. in the High Court of Australia. That was a decision on s.5 of the Australian Courts Act and the Court held that the purpose of that section was to arm the Attorney General of New South Wales with a power in all respects similar to that enjoyed by the Attorney General in England. They said, at p.458 that "The provision does not limit or restrict the Attorney General in any way in the consideration which he may give to a particular case. And because the language leaves the Attorney General at large in deciding what course he shall take, it makes his decision immune from judicial review." A little later the judges say:

54. In my judgment, if the prosecution of the applicant goes ahead, any complaints he may still have can only be raised before the trial court; and thereafter, if appropriate, on appeal. In my judgment it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General's discretion to prosecute, but once the charge or indictment conies before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised. The Australian judges in R. v. Barton were not taking too technical or artificial a view. Their decision recognises and preserves the unique constitutional position of the Attorney General, while reserving to a Court its inherent jurisdiction to prevent an abuse of its process.

55. In the criminal field this is still a developing and unsettled area of the law, but one thing is clear - exceptional circumstances must exist before a Court declines to proceed with a trial upon a properly formulated charge or indictment which is within its jurisdiction to hear and determine.

56. It was my opinion that Mayo, J. was right when he held that the application for judicial review was misconceived and so I agreed with my Lords that the appeal should be dismissed.

Hunter, J.A.:

57. I agree that for the reasons given by my Lord the decision to prosecute is not reviewable.

Penlington, J.A.:

58. I also agree with the judgment of Fuad, V.P. There is no doubt that any Court may refuse to hear proceedings which it regards as an abuse of its process (per Lord Parker in Mills v. Cooper at 467) but the authorities are overwhelming that the decision of the Attorney General whether or not to prosecute in any particular case is not subject to judicial review. I do not regard the dicta of Cons and Yang, JJ in Cheung Sou-yat as authority to the contrary, particularly in view of Cons, J's earlier remarks in Chung Yiu-fai.

Fuad, V.-P.:

59. In handing down the reasons why we dismissed this appeal on 22nd February 1990, we remove the stay ordered by Mayo, J. on 3rd July 1989.

Representation:

Mr. B. Bernacchi, Q.C. & Mr. H. Lo (Lee & Chow) for the Appellant

Mr. W.R. Marshall, Q.C., & Mr. E. Lau (Crown Solicitor) for the Respondent