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Nicholas David Hunsworth v The Registrar Of The Supreme Court And Another

Judgment Cited authorities 6 Cited in Precedent Map Related
Vincent
Judgment Date16 August 1996
Year1996
Citation[1996] 2 HKLRD 446
Judgement NumberHCMP1250/1996
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001250/1996 NICHOLAS DAVID HUNSWORTH v. THE REGISTRAR OF THE SUPREME COURT AND ANOTHER

1996 M.P. No.1250

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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In the Matter of an Application for Judicial Review
and
In the Matter of an Application under Order 63 rule 4(1)(a) Rules of the Supreme Court

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BETWEEN
NICHOLAS DAVID HUNSWORTH Applicant
AND
THE REGISTRAR OF THE SUPREME COURT 1st Respondent
THE ATTORNEY GENERAL 2nd Respondent

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Coram : Hon Jerome Chan, J. in Court

Dates of hearing : 12 & 15 July 1996

Date of handing down judgment : 16 August 1996

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J U D G M E N T

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1. The applicant is a solicitor of Messrs Johnson Stokes & Master. On 30 January 1996, the applicant applied to the Registrar of the Supreme Court for a copy of the originating process in M.P. No.236 of 1996 that are ex parte proceedings taken out by the Attorney General for an order that a Letter of Request be issued to the Judicial Court of Macau for assistance in taking evidence to assist in the investigation of criminal activities that might lead to criminal proceedings in Hong Kong. The ex parte originating summons was duly provided to the applicant. However, the applicant was dissatisfied with the document provided in that a draft order that was stated to be "annexed" to the ex parte originating summons was missing. The applicant's efforts to obtain a copy of the draft order was unsuccessful. In the event, the applicant and the Attorney General went before P. Chan, J. to resolve the impasse in an inter partes hearing on 5 February 1996. To the applicant's dismay, P. Chan, J. rejected the applicant's arguments and refused access to the draft order. It was further directed by the judge that the draft order was to be sealed in an envelope not to be seen without leave of court.

2. Against that decision, the applicant appealed to the Court of Appeal. On 2 April 1996, by a majority decision, the Court of Appeal dismissed the appeal on ground that it could not be entertained. It was held by the majority of the court that the matter is one of public law and ought to be ventilated by way of judicial review against the administrative decision of the Registrar of the Supreme Court, and not by appeal from the decision of the judge.

3. Leave to issue judicial review was granted on 18 April 1996. Though application for leave was taken out almost at the end of the three month period, no issue was taken on delay.

4. Registrar of the Supreme Court, being the 1st respondent herein, indicated that he did not wish to attend these proceedings. Relevant papers were served on P. Chan J. who also indicated via the Judiciary Administrator that he has no wish to be involved in these proceedings.

5. The decision being judicially reviewed is the Registrar of the Supreme Court's refusal, dated 30 January 1996, to allow inspection and taking copy of the draft order filed on 22 January 1996 in M.P. No.236 of 1996. Though the ex parte originating summons referred to the draft order as being "annexed hereto", there was no dispute that it was not physically attached to the summons. It was only filed at the same time with the ex parte originating summons and the affidavit in support.

6. In considering the refusal by the Registrar of the Supreme Court, it is necessary to determine if the applicant had a right of access, as a member of the general public, to the draft order pursuant to O.63 r.4(1)(a) of the Rules of the Supreme Court. Upon establishment of a right, is there any discretion to refuse relief or impose conditions on the grant of relief in the judicial review?

Meaning of "Originating Process"

7. The applicant was applying for access to the draft order as a member of the general public. No special right or interest was relied on by the applicant in any form. The alleged public right was governed solely by O.63 r.4(1)(a) that provided:

"(1) Any person shall, on payment of the prescribed fee, be entitled during such hours as the Registrar may direct to search for, inspect and obtain a copy of any of the following documents filed in the Registry, namely --

(a) the copy of any writ of summons or other originating ,"

8. There is no statutory definition of "originating process"; nor had any party drawn my attention to any authority or dictionary reference on such term. Mr. Mitchell for the Attorney General did draw my attention to the case of Attorney General v. Sarah-Jane Limbrick & others QBD, draft judgment of Garland, J. dated 20 March 1996, which I shall return to infra.

9. In my view, "originating process" is the process that initiated the proceedings. In the context of documents, it is a reference to such documents as writ of summons, originating summons, notice of motion, or petition. It would be difficult to envisage any other form of documents save those exceptionally designed by the particular statutes to be the stipulated form for initiating those proceedings.

10. "Process" was defined in Jowitt"s Dictionary of English Law, 2nd ed., as:-

"the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed (Britt. 138)."

In the remaining lengthy explanation in the dictionary, emphasis was placed on the purpose of the document in citing the other party to appear. In its reference to the former process in common law actions, it has this to say :-

"Judicial process was that which issued out of the common law courts, either when the original writ was returned or without an original writs being issued at all." (emphasis added)

11. In the New Shorter Oxford English Dictionary, 1993 ed., "process" was defined as:-

"a mandate, summons, or writ by which a person or thing is brought to court for litigation"

12. I am convinced that "originating process" in the context of O.63 r.4(1)(a) is a reference to the documents issued with the intent of bringing another person to court for litigation.

Nature of an application under Section 77E

13. Attorney General v. L, [1990] 1 HKLR 195, concluded that an application under s.77E was civil in nature. However, with respect, no reason was given by the judge for his said ruling. The judge did note, in a different context before he made the said ruling, that "The jurisdiction exercised by the High Court Judge under s.77E is perhaps similar in some ways to that exercised by a magistrate issuing a search warrant: compare the observations of Lord Diplock in In re Racal Communication Ltd. [1981] AC 374 at p.380." Godfrey, J.A., has this to say on the same issue in M.P. No.489 of 1966:-

"I would, for my part, accept the Crown's submission that the proceedings initiated by this originating summons are proceedings in a 'criminal cause or matter'. The evidence the Crown seeks to obtain is sought with a view to the institution by the Crown of proceedings 'the direct outcome of which may be trial of [the person against whom the evidence is sought] and his possible punishment for an alleged offence by a court claiming jurisdiction to do so': see Amand v. Home Secretary [1943] AC 147, per Viscount Simon L.C. at p.156, and that, I would hold, is sufficient to justify the characterisation of the proceedings commenced by the originating summons here as criminal proceedings. It is irrelevant that no criminal proceedings against any person have yet been started: see Carr v. Atkins [1987] I QB 963. (The suggestion, which I made at first instance in Attorney General v. L. [1990] 1 HKLR 195, that proceedings such as those commenced by the originating summons here are civil proceedings, must be rejected.)"

Nevertheless, Godfrey, J.A. went on to find, in respect of the application before P. Chan, J., that "it is not a sufficient answer to the applicant's claim for the Crown to demonstrate that the originating summons here was an originating summons issued in a criminal cause or matter, the present application is indeed merely collateral."

14. Mayo, J.A. agreed with Godfrey, J.A. and further observed that the Attorney General did in fact "issue the originating summons for the letter of request pursuant to Order 5 rule 3 of the Rules of the Supreme Court." The Attorney General took out the present application under an "ex parte originating summons" in almost identical form as that of Form 11 under O.7 r.2. It is to be noted that the form used by the Attorney General was not identical to Form 11 in that there was no reference to any order in the Rules of the Supreme Court in the title. The reference in the title of "In the matter of an application under Order 5 rule 3 or Order 7 rule 2" as would usually be found in a civil cause or matter was absent. This difference is significant in that without such a reference to the particular Order in the title of the "ex parte originating summons", it would not be accurate to describe it as being taken out under any particular rule of the Rules of the Supreme Court. The highest one can put it was that the Attorney General had "borrowed" the format of Form 11 for his application under s.77E. It can be taken that the failure to refer to any order to the rules of Supreme Court was deliberate to indicate the distinctive nature of a s.77E application. I am therefore satisfied that there is no evidence to suggest that the Attorney General had any intention to, nor did he in fact, issue the present application as a civil process under any rule of the Rules of the Supreme Court. As there is no form provided in the Evidence Ordinance for...

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