Kwan Chi on v. Kwan Tit on Daniel and Another

CACV000187/1999

CACV 187/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 187 OF 1999

(ON APPEAL FROM HCAL 55 OF 1999)

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Coram: Hon. Mayo and Rogers, JJ.A. in Court

Date of hearing: 23 November 1999

Date of delivery of judgment: 23 November 1999

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J U D G M E N T

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Mayo, J.A.:

1. This is an appeal from the decision of Keith, J.A. (sitting as an additional Judge of Court of First Instance) when he declined to grant leave to the Applicant to apply for judicial review.

2. The Judge's refusal was based upon the Applicant's lack of standing in the criminal proceedings which are the subject of his complaint.

3. The background to this litigation is somewhat tortuous.

4. The Applicant's father had two wives and two concubines and a total of 16 children. He died intestate and civil proceedings were instituted concerning the administration of his estate. One of the contentious issues arising was whether Daniel Kwan Tit-on was a legitimate son of his father.

5. This issue was initially determined in his favour in an action heard by Patrick Chan, J. (as he then was). However the judgment was set aside by the Court of Appeal and a re-trial was ordered. For a number of reasons there has been no re-trial of the action.

6. Criminal proceedings were then instituted against Daniel Kwan in the District Court for perjury in relation to evidence given by him during the civil proceedings. An application was made for the criminal proceedings to be stayed. This was successful.

7. However when granting the stay Deputy Judge Geiser who was seized of the matter made a number of observations concerning the Applicant.

8. In particular it is claimed that he said:

"I am satisfied that the behaviour of Kwan Chi-on in this whole sorry saga has been quite appalling. I do not for one moment accept that he was merely mistaken about his brother's identity. This cannot be so. Whilst I appreciate that he comes from a very large family with many brothers and sisters, surely he knows who his own brother is or is not.

While dealing with this I might say that I accept entirely Mr Callaghan's [Counsel for Kwan Tit-On] submission that after the defendant had filed an affirmation on 24 February 1997 exhibiting the results of his DNA testing, that Kwan Chi-On became aware of the reality of the situation. Despite this he did not go back to the police or Commercial Crimes Bureau and inform them that he had been operating under the mistaken illusion that the defendant was not his blood brother. This alone shows mala fides on the part of Kwan Chi-On."

9. It is apparent from the amended notice of application for leave to apply for judicial review that the decision in respect of which judicial review is sought is Deputy Judge Geiser's judgment made on 29th January 1999 when he granted the stay of prosecution. The respondents in the proceedings were Daniel Kwan and The Secretary for Justice. Shortly before this appeal The Secretary for Justice indicated that as she had no interest in the outcome of the appeal she requested to be excused from attending the appeal.

10. In the papers in support of the application for judicial review a claim is made that the question of costs in the civil proceedings has not yet been resolved and accordingly the remarks which were made by the Judge might be of some relevance in this connection.

11. Before considering the legal position in any detail it is necessary to consider the overall implications of this anticipated judicial review.

12. The main complaint made in the supporting papers is that the Applicant was afforded no opportunity of making representations to the Judge or putting his side of the story. Over and above this it is claimed that the Applicant was not aware of the outcome of the DNA testing at the time referred to by the Judge.

13. From this it is clear that the Applicant's main complaint is that he is seeking some form of redress for the criticisms which were made of him.

14. I do not think it can possibly be in the public interest that a stay which has been imposed in criminal proceedings should be lifted simply to enable a party who is not strictly speaking a party to the proceedings to vindicate his personal feelings.

15. Keith, J.A. in his judgment dealt with the type of situations where there may be interests independent of those of the immediate parties to the proceedings. In particular he considered the cases R. v. Horsham Justices ex parte Farquharson [1982] QB 762 and R. v. Felixstowe Justice ex parte Leigh [1987] QB 582.

16. Mr. Harris who represented the Applicant both before Keith, J.A. and ourselves informed us that he had not referred the Judge to R. v. Williams & Others ex parte Phillips [1914] 1 KB 608. He submitted that this case was authority for the proposition that in a situation such as arises in the present application the Applicant should be accorded a status on this contemplated judicial review.

17. I do not consider that R. v. Williams & Others provides any such authority. It dealt with entirely different situation and it did not attempt to introduce into a criminal prosecution ancillary civil litigation.

18. Mr. Harris also sought reliance upon the Inland Revenue Commissioners v. National Federation of Self-employed and Small Businesses Ltd. [1982] AC 617 to support his submission that a question of the status of a party to take part in litigation should be ventilated in substance rather than being disposed of at an initial stage. He referred to the speech of Lord Diplock at p. 643.

"My Lords, at the threshold stage, for the federation to make out a prima facie case of reasonable suspicion that the board in showing a discriminatory leniency to a substantial class of taxpayers had done so for ulterior reasons extraneous to good management, and thereby deprived the national exchequer of considerable sums of money, constituted what was in my view reason enough for the Divisional Court to consider that the federation or, for that matter, any taxpayer, had a sufficient interest to apply to have the question whether the board was acting ultra vires reviewed by the court. The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application."

19. The present case involves very different issues to those which arose in that case.

20. Mr. Harris contended that two issues arose in this case. The first was whether a person who has unjustifiably been criticised by the Judge had any form of redress. The second was whether a person in the position of the Applicant was entitled to challenge a decision of a Judge to grant a stay in criminal proceedings.

21. It is strongly my impression, having regard to the background of this litigation, that the Applicant is actuated by unworthy motives. He has failed to demonstrate that he has any legal right to intervene in these criminal proceedings. That is not to say that it is inconceivable that some person might have a right to intervene in very different circumstances.

22. In my view the Judge was entirely correct to decline granting leave on this application and the appeal should be dismissed.

Rogers, J.A.:

23. I agree. I only wish to add a few words of my own.

24. The Applicant has presented, what, to put it euphemistically, could be described as an undisguised antipathy towards the 1st Respondent. At one stage, it seemed that the application was launched to redress the grievance caused by the statements made by the Deputy District Court Judge that the Applicant was acting mala fides. But Mr. Harris, on behalf of the Applicant, made clear that the application was made to quash the decision of the Deputy District Court Judge to stay the prosecution of the 1st Respondent for perjury.

25. Keith, J.A. refused the application on the basis that the Applicant had no interest to bring such proceedings in respect of the criminal proceedings.

26. When asked by this Court as to what interest the Applicant had in pursuing his quest to seek Judicial Review in relation to the prosecution, Mr. Harris explained that his client was aggrieved because of 500 hours or more which had been spent by his client in investigating statements which had been made by the 1st Respondent in the civil proceedings.

27. When asked further as to what the actual interest was, in the final analysis, Mr. Harris put his case on his client's interest in these words "Satisfaction of seeing justice is done."

28. The Applicant, however, is not the prosecuting authority. If the source of complaint is the trouble and expense to which he has been put in investigating factual matters arising in the course of civil proceedings, his proper course is to seek costs in those proceedings.

29. Mr. Harris drew our attention to an authority, which was referred to by Mayo, J.A., on which he relies to show that someone who was not a party to criminal proceedings had been regarded as having a sufficient interest to challenge substantive decisions made in those proceedings. That authority was not shown to the Judge below. It is The King v. Williams and others (Justices of Swansea) [1914] 1 K.B. 608. That case is a peculiar case on its facts. The appeal was allowed by the Court of Appeal whereby the application for Judicial Review was refused.

30. What had happened was that, James Phillips was convicted under the name of John Phillips, of selling bread otherwise than by weight. The affidavit in support of the application for judicial review was made by his wife, Margaret Phillips. The first point to note is that Margaret Phillips said in her affidavit :-

"I am and was at the date of the matters hereinafter set forth a baker carrying on business under the name of J. Phillips."

It then appeared that the summons had been served on Margaret Phillips and was in the name John Phillips and not in her husband's name, James Phillips. On the hearing of the summons, the husband who was James Phillips was convicted under the name of John Phillips. The basis upon which the Court of Appeal allowed the appeal and said that the application could not go ahead was that the grounds of complaint, namely that one of the justices themselves had been a baker, was not taken at the hearing before the Magistrates and indeed, it was not shown in the affidavit that the Applicant had not been aware of that fact. The report does not actually say who the Applicant was. The judgments of the Court of Appeal deal with the case primarily on the basis that the Applicant was the party aggrieved but there was some flexibility to cover the situation that he may not have been. Rowlatt J. said in his judgment :-

"If the applicant claims as a member of the public the answer to his application is that the writ is discretionary and should not be granted in the present circumstances. If he takes up the position of a party aggrieved, then Reg. v. Justices of Surrey shews that he can by his conduct debar himself from his right ex debito justitiae. It is a very salutary rule that a party aggrieved must either shew that he has taken his objection at the hearing below or state on his affidavit that he had no knowledge of the facts which would enable him to do so."

And it is on that basis also that Channell, J. gave his judgment.

31. Atkin, J. said :-

"I agree. I do not say one way or the other whether the mayor was competent to take part in this conviction. The applicant must shew that he has not precluded himself by his conduct from claiming the special relief he asks for. He has failed to shew this, and therefore the rule nisi must be discharged."

32. It seems to me that both Rowlatt and Atkin, JJ. clearly considered that whoever was the Applicant, and it may have been Margaret Williams, as she was the affiant, was perfectly entitled as a party aggrieved to make that application but had been precluded because the objection had not been taken at the hearing. In those circumstances, this authority which does not, in any way, deal with non-parties to criminal proceedings applying for judicial review, does not, in my view, assist the applicant in any way.

33. In my view, also, this application should be dismissed.

Mayo, J.A.:

34. The appeal is dismissed.

35. After hearing submissions from Mr. Daniel Kwan who was present but not participating in the appeal and Mr. Harris we ordered that Mr. Kwan should have his costs from the date when the notice of appeal was served on him.

Representation:

Mr. Paul Harris instructed by M/S Barnes & Daly for Applicant

Kwan Tit-on, Daniel, 1st Respondent in person

Secretary for Justice, 2nd Respondent not appearing