In re Tin Sau Kwong

In re Tin Sau Kwong

The magistrate had jurisdiction and discretion to permit withdrawal and substitution of charges during committal proceedings; his exercise of that discretion was not flawed or Wednesbury-unreasonable; and the court will not supervise the Attorney General's prosecution decisions except in exceptional, initially justiciable cases amounting to outrageous conduct.

Citation
In re Tin Sau Kwong
Parties
Applicant/accused: Tin Sau Kwong; Respondent/prosecution Authority: Attorney General; Magistrate/decision Maker: Mr Li
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
13 October 1995
Case Number
HCMP2998/1995
Procedural Posture
Judicial Review of Magistrate's Committal Decision / Application for Leave to Apply for Judicial Review (order 53, R.3)
Outcome
Leave refused; application for judicial review and declaration dismissed
Legal Topics
Withdrawal of Charges, Committal Proceedings, Nolle Prosequi, Justiciability of Prosecution Decisions, Wednesbury Unreasonableness, Abuse of Process, Magistrate Jurisdiction
Source Language
EN
Criminal Law Administrative Law Judicial Review Prosecutorial Discretion Withdrawal of Charges Committal Proceedings Nolle Prosequi Justiciability of Prosecution Decisions +3 more

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Parties

Tin Sau Kwong

Applicant/accused

Attorney General

Respondent/prosecution Authority

Mr Li

Magistrate/decision Maker

Procedural Posture

Judicial Review of Magistrate's Committal Decision / Application for Leave to Apply for Judicial Review (order 53, R.3)

Legal Issues

  1. 1 Whether a magistrate has jurisdiction to permit withdrawal and substitution of charges in committal proceedings
  2. 2 Whether a magistrate may require the Attorney General to enter a nolle prosequi
  3. 3 Whether the Attorney General's decision to re-charge is justiciable and reviewable by the court

Ratio Decidendi

The magistrate had jurisdiction and discretion to permit withdrawal and substitution of charges during committal proceedings; his exercise of that discretion was not flawed or Wednesbury-unreasonable; and the court will not supervise the Attorney General's prosecution decisions except in exceptional, initially justiciable cases amounting to outrageous conduct.

Court Disposition

Leave refused; application for judicial review and declaration dismissed

Orders

  • Leave to apply for judicial review refused
  • Application for declaration against the Attorney General refused