Fok Siu Wing v. Secretary for Justice

HCAL154/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.154 OF 2012

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REASONS FOR DECISION

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1.This is an application by the Secretary for Justice for leave to appeal to the Court of Appeal. I dismissed the application after the hearing. I now give the reasons.

2.The chronology of events leading up to this application is as follows:

a.  The applicant was convicted of ‘Gambling in a gambling establishment’ on his own plea on 20 July 2012.  He was fined $500.

b.  The applicant was unrepresented in the proceedings.  He informed the presiding Magistrate that he would plead guilty but he had not gambled.  The presiding Magistrate asked the summary of facts to be read out.  After the applicant agreed with the summary of facts, the presiding Magistrate convicted the applicant.

c.  The applicant obtained the official transcript around 29 August 2012, there was no record of what he said in court.  He complained to the Chief Magistrate alleging that there was an omission in the transcript.  The Chief Magistrate replied on 8 October 2012 stating that he had checked the audio record but found no omission in the official transcript.

d.  About 27 September 2012, the applicant was granted legal aid.  Counsel was assigned on 24 October 2012 for judicial review.

e.  In the meantime, the applicant obtained a tape of the audio record which confirmed that he had told the presiding Magistrate that he had not gambled, however, this was not in the official transcript.

f.  The applicant made an ex parte application for leave to judicial review the conviction on 23 November 2012.  Leave was granted on 17 December 2012 by this court.

g.  The Secretary for Justice applied to set aside the ex parte leave.  This court refused the application on 5 February 2013.

h.  The Secretary for Justice applied leave to appeal to the Court of Appeal on 24 March 2013.

3.The Secretary for Justice relies on two main grounds.  First, the applicant has not made any attempt whatsoever to appeal the conviction out of time.  Secondly, there is no exceptional circumstance to grant leave for judicial review.  Mr Lee, Senior Assistant Director of Public Prosecutions, stresses that this is not an exceptional case.  The fact that the applicant was not advised by the Legal Aid Department to appeal out of time did not make it exceptional.  Time and costs may not necessarily be saved even if the case is dealt with by way of Judicial Review.  The fact that the case has already reached this court is no justification for dealing with it here. 

4.Counsel for the applicant opposes granting leave to appeal.  Counsel argues that the possibility of appeal out of time was fully canvassed during the ex parte and the set aside proceedings.  This court had fully considered the issue before granting leave.  In fact, this court adopted the reasoning in Pun Cecil and Kowloon City Magistracy, HCAL58/2006.  This court found that there were exceptional circumstances which justified granting leave for judicial review.  It would be a waste of time and public fund to require the applicant to follow the appeal procedures from the beginning in the Magistrate Court.

5.The general principle is not in dispute.  The applicant should have exhausted other remedies by way of appeal before resorting to judicial review.  However, where there are exceptional circumstances, this court may grant leave for judicial review despite the existence of alternative remedies.

6.In considering this application, I note the following events in particular:

a. The applicant was unrepresented in the Magistrate Court.

b. He indicated during the proceedings that he had not gambled.  This was consistent with his response under caution as set out in paragraph 3 of the summary of facts.  Despite this equivocal plea, he was convicted and fined.

c. For reasons unknown, the official transcript had not revealed the relevant exchange between the presiding Magistrate and the applicant.

d. The applicant complained but the Chief Magistrate had not spotted the omission in the official transcript.  Had the error been discovered, the applicant might be alerted to appeal out of time.

e. The applicant was granted legal aid for judicial review.  No one advise him to appeal out of time.

f. It was later confirmed that there was an omission in the official transcript.  Counsel was assigned to pursue the judicial review.  The applicant was not advised to appeal out of time.

7.Given this background, I do not think the failure to exercise his right to appeal should weigh against the applicant in the granting of leave to judicial review.

8.In addition, on the face of the documents before me, the plea was equivocal.  It is a reasonably arguable case with realistic prospect of success.

9.To require the applicant to appeal pursuant to the procedures set out in the Magistrates Ordinance would be time consuming.  He has first to apply for extension of time to appeal.  If leave is granted, he has to file a notice of appeal.  The presiding Magistrate may take time to compile a statement of findings.  The case would then be transferred to the Court of First Instance to fix a date for hearing.  On the contrary, the substantive hearing of judicial review, if to proceed as scheduled, can be disposed of in early June.  It is much faster and this court is equally competent to deal with the issues.

10.In addition, pursuing the appeal procedures from the beginning would lead to wastage of the legal costs so far incurred.

11.Having considered the above, I am satisfied that leave for judicial review should be granted.  I refuse the application by the Secretary for Justice for leave to appeal to the Court of Appeal.  I do not think there is reasonable prospect of success.

Mr Edmond Lee SADPP and Mr Raymond Cheng SPP, of the Department of Justice, for the respondent

Mr Edward Fan, instructed by Kwok, Ng & Chan, for the applicant

Please refer to CACV105/2013 for the relevant appeal(s) to the Court of Appeal.