Yeung Ka Sing, Carson v. Secretary for Justice

HCAL 59/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 59 OF 2013

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J U D G M E N T

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THE BACKGROUND

1.The applicant faces five criminal charges, each alleging that he dealt with  property known or believed to represent proceeds of an indictable offence. The offences are said to have occurred between 3 January 2001 and 29 December 2007. The aggregate amount with which he is said to have dealt is alleged to exceed $720 million.

2.The applicant was arrested and charged in respect of those offences as long ago as 29 June 2011. On 11 August 2011 a magistrate transferred the matters to the District Court for trial by virtue of the provisions of s. 88 of the Magistrates Ordinance, Cap 227. The applicant appeared there on 30 August 2011.

3.No representations were made to the putative respondent concerning the appropriateness of venue either before or at the time of that transfer.

4.On 30 September 2011 the Court of Appeal ( Stock VP, Cheung and Lunn JJA) heard an appeal sub nom HKSAR v BOMA AMASO [2012] 2 HKLRD 33. It handed down its judgment in that matter on 1 February 2012. Stock VP, whilst agreeing with the decision to dismiss that applicant’s application for leave to appeal, also wrote an additional judgment (the additional judgment) expressing views on sentencing considerations designed to assist practitioners, in the course of which he passed comment on the choice of venue for offences of this nature.

5.A pre-trial review was fixed for hearing in the District Court on 7 December 2011 in connection with the charges against the applicant. No representations were made about venue at that hearing. At that stage the trial was fixed to commence on 28 November 2012, some 51 weeks later, but leading counsel then representing the applicant was to advise the court whether the trial could be brought forward to May 2012. He thereafter advised the court of a number of reasons why this would not be possible.

6.On 29 August 2012 the applicant engaged the services of those representing him in these proceedings to represent him in the District Court proceedings. In November 2012 an objection was taken on behalf of the applicant to the counsel who had then been briefed to prosecute the case: he was replaced without delay to the trial. On 23 November 2012 there was a mention hearing in the District Court relating to an application by the applicant for an adjournment. That application was refused. The trial was scheduled to commence on 28 November 2012: on that day a further application to adjourn the trial was made which was granted. It was then adjourned to 29 April 2013.

7.From the time of the handing down of the judgment of the Court of Appeal in BOMA until the adjournment of the trial in November 2012 some 10 months later the issue of the appropriateness of venue had not arisen at any stage nor had any representations been made to the Department of Justice in this connection. That included the period from 29 August 2012 when the applicant was represented by  his present representatives.

8.On 8 February 2013 those representing the applicant wrote a letter to the Department of Justice requesting that it make an application by virtue of the provisions of s. 77A of the District Court Ordinance, Cap 336, for the proceedings to be transferred to the Court of First Instance for trial as this was "clearly more appropriate" in the light of the additional judgment. Extracts from the additional judgment were quoted in that letter. Despite the fact that BOMA had been handed down over a year earlier and nothing had been done by the applicant or his various representatives up to that stage, the request was accompanied by the demand of a response from the Department of Justice within a week.

9.The Department of Justice replied within that prescribed period, saying:

It is noted that this matter was transferred to the District Court on 11 August 2011 and that the trial was originally scheduled to commence on 28 November 2012, and the defendant has never previously raised the issue of venue of trial until less than three months before the new trial date.

In any event, having considered the issues raised in your letter of 8 February 2013 and all the circumstances of the case, we remain of the view that the District Court is the proper venue for trial. [Emphasis supplied]

10.It is this refusal to accede to the 11th hour request by the applicant that the applicant characterises as Wednesbury unreasonable on which basis he seeks leave to judicially review the decision.

11.It is asserted by the applicant that the putative respondent should have given due weight to the additional judgment which related to a common sense approach in choosing venue for money laundering cases and that, had due weight been given, the putative respondent would have acceded to the request to transfer the proceedings.

THE ADDITIONAL JUDGMENT

12.It is convenient at this stage to have regard to the first three paragraphs which appear before the judgment of the court in BOMA. They read:

1. Legal aid was granted in this case by the single judge because he was concerned about apparent discrepancies in sentences for money laundering offences that seem to have manifested themselves over recent years.

2. Accordingly we invited counsel to address us on the question, first, whether this was a category of offence in which guidelines might be useful and, if so, then, second, what those guidelines might be...

3. The judgment... which follows provides the reasons for the dismissal of this applicant's application to leave to appeal against sentence. I add a judgment of my own thereafter which addresses the issues of sentences for money laundering offences, a judgment with which the other members of the Court agree.

13.The applicant relies on observations in §§30, 31, 32 and 37 of the additional judgment. Stock VP referred, in §30, to two cases which he said "... strike one as astonishing for having been brought in the District Court..." and "... it really is difficult to understand how cases such as the two which [he had] particularised came to find themselves tried in the District Court.". They involved amounts of $6.4 billion and $683 million.

14.The applicant’s selectivity ignores the context in which those remarks were passed. Paragraph 24 is a clear indicator of the purpose and intent behind the additional judgment:

24. The courts of this jurisdiction and others have regularly commented that such is the variety of circumstances in which money laundering offences are committed and such the widely different roles played by those convicted of these offences, that it is one of those categories of offence in which it is neither realistically possible nor desirable to attempt guidelines. Nonetheless, because of the apparent disparities and in the light of counsel submissions we have considered the question what assistance, if any, might usefully be provided. [Emphasis supplied]

15.Mr. Fung SC who appears for the applicant accepts that, put at their highest, the remarks passed in the additional judgement were obiter. He says, and of course he is correct, even so they are demanding of serious consideration. A balanced reading of the additional judgement shows it to be focused on issues of sentencing in connection with offences of this nature and to be an attempt to provide assistance to practitioners.

16.The Vice President expressed the view, at §28, that, in the context of sentencing, "Part of the problem may well stem from the perception of the Department of Justice that by reason of the judgment... in HKSAR v Kam Susanto... most cases should be tried in the District Court" and, in §29, "It is however clear that the Court [of Appeal] was influenced by a perception that cases of this kind may more easily be tried by a single judge rather than by a jury. Be that as it may, the comment by the Court [of Appeal] seems to have had an influence which is unfortunate...".

17.Paragraph 37, upon which the applicant places great store, continues:

37. Next, we would suggest that the Director of Public Prosecutions should not feel constrained by prior judgments of this court from bringing cases in the High Court where huge sums of money are involved or where the predicate offence is particularly serious. True it is that this involves a burden on juries in such cases, but the alternative, in other words, the exclusion of the High Court as a possible forum, brings distortions to justice. [Emphasis supplied.]

18.It is abundantly clear, therefore, that Stock VP was concerned with correcting any misperception which may exist in the Department of Justice that the Court of Appeal held the view that it would be preferable for trials of this nature to be tried in the District Court rather than Court of First Instance.

VENUE OF TRIAL

19.It is well established that the discretion as to venue for a trial vests in the putative respondent: if any authority be needed for that proposition it conveniently may be found in the decisions of the Court of Final Appeal in Chiang Lily v Secretary for Justice  (2010) 13 HKCFAR208 and the Court of Appeal in Chiang Lily v Secretary for Justice [2009] 6 HKC 234.

20.Any suggestion that Stock VP may be thought to have been indicating a course for the putative respondent to follow or in any way seeking to interfere with the discretion of the putative respondent is immediately dispelled by reference to what he said, Ma CJHC and Kwan J concurring, in Re: C (A Bankrupt) [2006] HKC 582 when considering the implications of Article 63 of the Basic Law:

20. I apprehend that it is to such interference, that is to say, interference of a political kind, to which article 63 is directed. But the rule that ensures the Secretary's independence in his prosecutorial function necessarily extends to preclude judicial interference, subject only to issues of abuse of the court process and, possibly, judicial review of decisions taken in bad faith. [Emphasis supplied]

21.Moreover, Stock VP himself recognised in HKSAR v Brian Alfred HALL CACC18/2012, CAAR1/2012 (unreported, 6 March 2013) that there may exist circumstances in which a choice of venue which, at first, may appear surprising is justifiable: he said at §48:

We were at first surprised that this prosecution had been brought in the District Court rather than in the High Court, but we accept the commonsense of the proposition put to us by the Director of Public Prosecutions, Mr Zervos SC, that given the large number of witnesses to be called (and, he might have added, the predilection of the defendant to prolixity, were he to be unrepresented), a jury trial did not present a happy prospect.

22.The applicant accepts that, in what he describes as "appropriate cases", countervailing factors may exist in regard to the choice of venue. He then suggests that the putative respondent "... failed to identify any such countervailing factors militating against Stock VP’s well reasoned judgment." submitting that this gives rise to the inference that either none existed or the putative respondent failed to give due weight to the alternative judgment.

23.That approach is flawed. As Ma CJHC observed in Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at §38(2) in a situation on all fours with the present application:

Insofar as the challenge is based it on a suggested failure to take into account relevant factors, the points made by the applicant in the letter [to the Department of Justice] were stated in the [reply by the Department of Justice] to have been "carefully considered". There was a faint suggestion made by Mr. Mok that perhaps the points made by the applicant should have been dealt with individually and in greater detail by the respondent but, with respect, even assuming there to be such a general obligation (which I doubt) the fact that they were not so dealt with does not equate to the decision being unreasonable, whether in the Wednesbury sense or otherwise.

24.The putative respondent dealt with the request by the applicant in the terms set out in §9 above. However it may have been couched by the applicant, the reality of the situation is that what the applicant's letter of 8 February 2013 necessitated, in the view of the applicant, was a reassessment of the original decision as to venue in the light of the additional judgment.

25.The putative respondent plainly appreciated that to be the case for he indicated that "... we remain of the view that the District Court is the proper venue for trial." To be able to remain of a view necessitates, self-evidently, having revisited the original decision. The putative respondent's letter indicates that that is precisely what has been done, taking into account the specific issues which had then been raised by the applicant together with all the circumstances of the case. I do not accept the submission by Mr Zervos SC that no decision was made by the putative respondent.

ABUSE OF PROCESS

26.The putative respondent resists this application primarily on the basis that it amounts to an abuse of process of court.

27.The Court of Final Appeal, the Court of Appeal and the Court of First Instance have deprecated, repeatedly over the years, the use of collateral challenges in the course of criminal proceedings. Examples of this are legion: by way of illustration one can refer to the words of Ma CJHC in Chiang Lily v Secretary for Justice [2009] 6 HKC 234 at §51:

In the context of criminal charges and criminal trials, much has been said in recent times by the courts deprecating the trend of what are known as collateral challenges which delay or fragment the progress and timely disposal of criminal proceedings: see the comments of Sir Anthony Mason NPJ in Yeung Chun Pong v Secretary for Justice (2006) 9 HKCFAR 836 at 849C-D . It goes without saying that the public interest is clearly in the efficient and expeditious disposal of criminal charges, and that unnecessary delays ought not be permitted.

28.I am satisfied that the purposes of these proceedings is to attempt to disrupt the forthcoming trial and is an abuse of the process of this court. There are clear indicators that this is so, even leaving aside the chronology submitted by the putative respondent.

29.There is the delay of over 12 months from the time of the handing down of the additional judgement in BOMA during which the applicant has not raised at any stage the issue of venue until a matter of weeks before the upcoming trial. The timing is particularly significant in view of the fact that the decision sought to be reviewed is one generated by the applicant himself.

30.It cannot be gainsaid that the applicant was under a duty to make full and frank disclosure in connection with his application. That is trite. In the context of an application for leave to institute judicial review that disclosure is achieved by setting out all material facts in the Form 86, which initiates these proceedings.

31.The applicant asserts that his present representatives "drew his attention" to the decision in BOMA: he makes no attempt to be candid with the court as to when this occurred. The applicant asserts that it was necessary to deliberate over the significance of that decision: he makes no attempt to be candid with this court as to how long that deliberation required.

32.In a further display of a lack of candour the applicant withheld from his application a contention which he has twice before laid before the District Court, namely that the amount which the prosecution has charged is incorrect because it involves "double counting" to an extent of $300 million. Of course, the prosecution does not accept that to be so but that is not the point.

33.This is self-evidently a material fact because, if it be correct, it substantially reduces the amount referred to in the charges. It is the amount of money alleged in the charges to which the applicant points when contending that the "more appropriate" the venue for this trial is the Court of First Instance.

34.Then there is the nature of the application itself which, as is obvious from the background I have outlined, is frivolous.

CONCLUSION

35.This application is refused as it amounts to an abuse of the process of this Court. For the sake of completeness only, I indicate that, in any event, I would have dismissed it as not being reasonably arguable as explained by the Court of Final Appeal in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Mr Kevin Zervos, SC, DPP, and Anthony Chau, SPP, of the Department of Justice, for the putative Respondent.

Mr Daniel Fung, SC, Mr Benson Tsoi,, and Mr David Chen, instructed by Messrs Tung, Ng, Tse & Heung, for the Applicant