THE QUEEN v. MAK FOON-THAN

bjbj HCMP000299/1984 IN THE SUPREME COURT OF HONG KONG 1984 No. 299 HIGH COURT (Miscellaneous Proceedings) BETWEEN THE QUEEN and MAK FOON-THAN Coram: Roberts, C.J. Date: 7th & 8th February, 1984. APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW ------------ RULING ------------ This is an application for leave to apply for judicial review by MAR Foon-than, who is awaiting trial in the High Court on an indictment filed by the Attorney General, after consent to the preferment of a voluntary bill had been given by the Chief Justice on 13th October, 1983 under section 24A(1) (b) of the Criminal Procedure Ordinance. Background The applicant was arrested on 3rd August, 1983, and charged with the murder of Jalil Hi Bin Ibrahim on 18th July, 1983. An important part of the Crown case consisted of admissions made by the applicant in four statements taken from him by police officers on 4th, 5th, 6th and 8th August, 1983. The Crown applied to a magistrate for dates to be fixed for committal proceedings, which were arranged for seven days beginning on 17th October, 1983. However, on that morning, Crown Counsel informed the magistrate that the Chief Justice had already consented to the preferment of a voluntary bill of indictment on 13th October. Application for such consent was filed in the High Court on 12th October. The application was heard ex parte by the Chief Justice, sitting in Chambers, on the following day. The reason given in the application was that the statements contained information about other persons which was not substantiated by other evidence and that it was desirable that such statements should not be made public. After hearing submissions made by the Crown Prosecutor, on behalf of the Attorney General in support of the application, and in amplification of the reasons given in the notice of application, the Chief Justice gave his consent for the signing of a voluntary bill. In furtherance of such consent, an indictment charging the applicant with murder was filed in the High Court on the same day. Form of relief sought The applicant sought two forms of relief - by an application to the Chief Justice for other forms of relief, in the exercise of what was said to be the inherent jurisdiction of the High Court; by an application for leave to apply for judicial review. The application for leave was contained in two applications, dated 30th January and 6th February, which listed, as the relief sought, three declarations, an order of prohibition and an order of mandamus. During the hearing before me, the applications for orders of prohibition and mandamus were withdrawn. I granted leave to the applicant to consolidate the applications for leave of 30th January and 6th February and to submit a fresh application, dated 8th February, from which references to prohibition and mandamus were deleted. Application for other relief The application for other relief sought the following - that the Chief Justice should set aside his order of 13th October, in which he gave consent to the preferment of a voluntary bill of indictment; that the indictment against the applicant filed by the Attorney General on 13th October, pursuant to the said application, should be quashed; that the date of 2nd March fixed for the commencement of the trial should be vacated. As to relief (a), counsel for the applicant was unable to indicate to me any authority which would justify me, even if I were so minded, in reviewing or reversing a consent which had been given some months' ago. In my view, as a matter of general principle, I was functus officio so far as that consent was concerned. Furthermore, even if it had been open to me at an earlier stage to reverse my consent, I do not see how such a step would be open to me when a voluntary bill had already been filed in pursuance of the consent then given. As to relief (b), no grounds were shown to me on which I could quash the indictment against the applicant, which was prima facie properly filed by the Attorney General, in pursuance of the consent order of 13th October. I therefore refuse to quash the indictment, though this does not prevent the defendant, at an appropriate stage, from taking such other steps as may be open to him, as they are in an ordinary case, to quash the indictment if it can be argued to be defective in any way. As to relief (c), I ordered that the trial date of 2nd March, 1984, be vacated and that it be refixed for 15th May, 1984. Application for judicial review Declaration 1. The main argument advanced in favour of this declaration, namely that the indictment was filed in breach of section 24A(1) of the Criminal Procedure Ordinance, was that the consent order was in excess of jurisdiction in that the order - (a) was made in breach of natural justice; (b) was made in breach of the general duty of fairness which lies on public officers, tribunals and courts; (c) that the considerations which were contained in paragraphs 2 and 3 of the Crown Prosecutor's application of 12th October were immaterial and should not have been given weight by the Chief Justice. The audi alteram partem rule The applicant argued that this rule applies to an application for consent to prefer a voluntary bill and that it was breached because the application was heard ex parte. However, in R. v. Raymond (1) the English Court of Appeal ruled that a defendant has no right to appear, either by himself or by someone on his behalf, before a High Court Judge who is considering an application for leave to prefer a bill of indictment against him under section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 and under the Indictment (Procedure) Rules 1971. Section 24A(1) of the Criminal Procedure Code, which follows closely section 2(2) of the 1933 Act, provides that no bill of indictment shall be preferred unless ............."(b) the bill is preferred by the direction or with the consent of a judge." Those parts of the English Indictment Procedure Rules (1971) which governs applications for a voluntary bill have not been re-enacted in Hong Kong, and the court in Raymond(1) placed some weight on the absence from those rules of any reference to the right of an accused to appear at the hearing of such an application. However, section 9(3) of the Criminal Procedure Ordinance imports into the law of Hong Kong the practice and procedure applicable for similar matters in England, in the absence of a local provision. There being no such provision, the Indictment (Procedure) Rules, 1971, will apply. Raymond(1) has recently been followed and approved in R. v. Soffe(2), from which I quote the following passage, from the judgment of the Court of Appeal, at p. 136 - "In Raymond (1981 72 Cr. App. R. 151) this Court considered whether the audi alteram partem rule applied to the procedure for preferring a bill of indictment pursuant to section 2(2)(b) of the Administration of Justice (Miscellaneous Provisions) Act 1933 and rules 6 to 9 of the Indictment (Procedure) Rules 1971, sometimes referred to as the 'voluntary bill procedure'. This Court held that the rule was inapplicable to the process of the preferment of a bill of indictment." I therefore see no merit in the argument that the audi alteram partem rule applies to an application for consent to prefer a voluntary bill. General duty of fairness The applicant submitted that the general principle, that there is a duty of fairness, which was broken by the circumstances in which that indictment was filed, applies to the voluntary bill procedure. The applicant relied heavily on the Australian case of Barton(3), in which a majority of the members of the High Court of Australia, in an appeal dealing with the charging of the appellants under two ex officio indictments, decided - that the decision of the Attorney General to file an ex officio indictment was not subject to judicial review; (b) that it was nevertheless open to a court to postpone or stay a trial if this appears to be necessary to prevent an abuse of process and to ensure a fair trial for the accused person; (c) by a majority of 3 to 2, that committal proceedings constitute such an important element in the protection of an accused that a trial held without them unless justified on "strong and powerful grounds", must necessarily be considered unfair; that it is inherent, in the assumption by the court of power to intervene in this manner, that it may enquire as to the grounds on which the consent of the judge was obtained. The High Court of Australia further averred that the courts in Australia had not hesitated to assert that they had powers to discharge a person if they were satisfied that there had been such an abuse of process as to constitute an unfairness to the defendant. The English authorities do not appear to go as far as this, either in general terms or in relation to voluntary bills. Indeed, the cases cited, which deal with such applications, make no reference to the principle at all. In R. v. Rothfield(4), the Court of Criminal Appeal decided that it was not for a judge of the High Court to enter into an examination of matters which had been before the judge when he exercised the discretion to give consent for the preferring of a voluntary bill of indictment. To quote the words of Mr. Justice Humphreys, at p. 106 - "Now; it cannot be made too plain, or stated too definitely, that this Court will not inquire into the exercise of the discretion of a Judge who is sitting and dealing with an application under the Administration of Justice (Miscellaneous Provisions) Act, 1933, so long as it is clear that he had jurisdiction to entertain the application." In a later passage, the judge emphasizes the view that the court should not enquire into the exercise of the discretion of the judge. If this is the rule, it does not seem open to the applicant to argue that a general duty to be fair entitles a court to examine the manner in which the application for a voluntary bill was dealt with, nor the reasons which led the Chief Justice to grant it. I thus doubt whether, on the basis of Rothfield(4), the broader approach adopted by the High Court of Australia is at present applicable under English law. I recognize, nevertheless, that there has in recent years, and certainly since Rothfield(4) was decided, a greater willingness on the part of superior courts to enquire into the exercise of discretion by inferior tribunals, so as to assure itself that a defendant was treated with fairness; and the proposition that there is a general duty of fairness has, become far stronger. I have to remind myself that, in approaching the question of an application for leave to apply for judicial review, it is necessary for the applicant at this stage to show no more than that he has an arguable case. As Lord Diplock observed in I.R.C. v. National Federation of Self-Employed and Small Businesses Limited(5) - "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." While, therefore, I confess that I was not greatly impressed by the arguments put forward on behalf of the applicant in favour of the proposition that it is open to a court to quash the voluntary bill of indictment on the grounds that it constituted unfairness to the applicant, both by reason of its very nature and by reason of the background to the signing of the bill, I concede that there seems to be just an arguable case within the test laid down by Lord Diplock. Declaration 2. This declaration asserts that the action of the Attorney General in applying for and obtaining consent for the preferment of the voluntary bill and in refusing when so requested by the applicant to reinstate committal proceedings, was an abuse of process, oppressive and unlawful. The main ground of complaint is that the preferment of such bill has deprived the applicant of the opportunity of attacking the Crown case in committal proceedings and of having the charge dismissed at that stage. In this I see no substance, since it is inherent in the nature of the voluntary bill procedure. It was further argued that the Attorney General had not shown that committal proceedings were demonstrably impractical or contrary to the interests of the proper administration of justice. I know of no authority which limits the use of the voluntary bill in the manner contended, though Barton(3) and the English cases make it clear that it is a procedure which should be used with great caution. However, it can be contended, as was the case in relation to the first declaration, that the residual duty of fairness was of such a nature as to support the second declaration. For this reason, I gave leave in relation to that declaration as well, since it was in a sense intimately connected with the first. Declaration 3. This seeks a declaration that the defendant is entitled to be served true and complete copies of the statements which he made to the police on 5th, 6th and 8th August, 1983. It is not in dispute that the versions attached to the bill of indictment had been edited, by the deletion of many passages from the original statements. I had no hesitation in granting leave to apply for this declaration. Without, of course, having had the benefit of argument on behalf of the Crown, it seems to me clear that any defendant is entitled, on his request, to an unedited copy of any statement which he is said to have made to a police officer, whether or not any use is to be made of it by the Crown. Although, as I see it, there is no obligation upon the Crown to present to a court an unedited version, it must remain open to an accused person to demand an unedited version and to make whatever use he thinks may be appropriate before or during the course of his trial. Summary of orders made Leave was granted to apply to the High Court for a judicial review in relation to the three declarations sought. (2) A date was fixed for the hearing of the application for judicial review by a High Court Judge on 27th February, five days being reserved for this purpose. (3) The trial of the applicant, previously fixed for 2nd March, was postponed to 15th May. (4) The applicant will be remanded in custody, should such an order be necessary, until trial or further order. (5) Any interlocutory applications which may be made in the proceedings for judicial review should be heard by a judge in Chambers, under Order 53 rule 8(1). (6) There should be no publication of the application for leave, nor of the substantive application, except for the results of them. I noted that both counsel informed me that they would have no objection to the same High Court Judge dealing with the application for judicial review as would later conduct the trial of the applicant, should this ensue. I also recorded my view that, though it is not for me to bind a discretion of the judge hearing the application for judicial review, this seems to be a matter which it was appropriate to hear in Chambers. Both counsel agreed that this was preferable. I should mention that, although the application for leave was ex parte, so that the Crown had no right to be heard, I did permit the Deputy Crown Prosecutor to address me in relation to the other applications made and to those subsidiary matters which arose after I had granted leave. Representation: D. Keane, Q.C., Zia Bey Muftyzade (D.L.A.) for Applicant A. P. Duckett, A.D.C.P. for Crown. (1) [1981] 72 Cr.App.R. 151. (1) [1981] 72 Cr.App.R. 151. (2) [1982] 75 Cr.App.R. 133. (3) 32 A.L.R. 449 (4) [1938] 26 Cr.App.R. 103. (4) [1938] 26 Cr.App.R. 103. (5) [1982] A.C. 617, 643. (3) 32 A.L.R. 449. 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