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Yeung Chun Pong And Others v Secretary For Justice

Judgment Cited authorities 10 Cited in Precedent Map Related
Vincent
Judgment Date13 November 2006
Year2006
Citation(2006) 9 HKCFAR 836
Judgement NumberFACC3/2006
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC000003/2006 YEUNG CHUN PONG AND OTHERS v. SECRETARY FOR JUSTICE

FACC No. 3 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2006 (CRIMINAL)

(ON APPEAL FROM CACV NO. 102 OF 2005)

_____________________

Between :

YEUNG CHUN PONG 1st Appellant
TSE MAY WAH 2nd Appellant
CHIK KAM FAI 3rd Appellant
and
SECRETARY FOR JUSTICE Respondent

_____________________

Court : Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Sir Anthony Mason NPJ

Date of Hearing : 31 October 2006

Date of Judgment : 13 November 2006

_____________________

J U D G M E N T

_____________________

Chief Justice Li:

1. I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Bokhary PJ :

2. I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Chan PJ :

3. I agree with the judgment of Sir Anthony Mason NPJ.

Mr Justice Ribeiro PJ :

4. I agree with the judgment of Sir Anthony Mason NPJ.

Sir Anthony Mason NPJ :

Introduction

5. This appeal is brought by the appellants pursuant to the grant of leave by the Appeal Committee, the Court of Appeal having certified that there were two questions of great and general public importance involved in its decision allowing an appeal from Reyes J. The two questions are :

(1) whether a magistrate in committal proceedings under Part III of the Magistrates Ordinance, Cap. 227, has jurisdiction to entertain autrefois pleas; and

(2) whether a magistrate in committal proceedings under Part III of the Magistrates Ordinance has jurisdiction to entertain an application for a stay of proceedings on the basis of the rule against double jeopardy or is otherwise entitled to refuse to commit for trial on the basis of the rule against double jeopardy.

The history of the proceedings

6. In March 2002, the three appellants were tried in the Macau Criminal Court for two offences. They were convicted of the offence of illegal bookmaking and acquitted of the offence of money laundering. Both charges related to Hong Kong racing fixtures in 1999. The gist of the money laundering charge was that the appellants (among others) recycled the proceeds of their bookmaking operation through accounts intended for the receipt of monies from licensed casino activities.

7. In November 2003, the 1st and 2nd appellants were charged with the offence of conspiracy to deal with property known or believed to represent proceeds of an indictable offence, contrary to ss 159A and 159C of the Crimes Ordinance, Cap. 200 and s.25(1) of the Organized and Serious Crimes Ordinance, Cap. 455. Later, in September 2004, the 3rd appellant was charged with the same offence and was joined with the charge against the 1st and 2nd appellants.

8. The particulars of offence alleged that between 30 June 1998 and 3 September 1999, in Hong Kong, they conspired together with persons unknown to use a bank account at the Hang Seng Bank number 275-1-076874 in the name of Tse May Wah, to deal with property, namely HK$216,152,319, knowing or having reasonable grounds to believe that the said property, in whole or in part, directly or indirectly represented the proceeds of indictable offence.

9. The appellants contend that the offence charged in Hong Kong is based on substantially the same matters on which they had been convicted or acquitted of offences in Macau and that they are therefore entitled to rely on the Macau verdicts in support of the autrefois plea. The appellants’ case on this point would, if sound in law, give rise not to a plea of autrefois in the strict sense but to an extended plea of autrefois, resulting in the grant of a stay of proceedings where it is shown that the second offence arises out of the same or substantially the same set of facts as the first offence.

10. In the course of the very lengthy committal proceedings which followed the laying of the charges against the appellants, they argued that they were entitled to rely on the Macau verdicts to support a plea in bar of autrefois acquit or, alternatively, to use the Macau verdicts to maintain an application for a permanent stay of proceedings.

11. On 25 January 2005, Mr Candy, a Permanent Magistrate, ruled that he had no power to dismiss or stay the committal proceedings on the grounds of double jeopardy :

“… since the prosecution has not yet made an election whether the case should be tried summarily or in another venue, whether on indictment in the High Court or in the District Court.”

Although expressing dissatisfaction with the delay in the conduct of the case, the magistrate adjourned the case for three more months at the request of the prosecution.

12. On 15 March 2005, in proceedings for judicial review, Reyes J made an order of mandamus requiring the magistrate to consider the autrefois pleas of the three appellants.

13. A subsidiary issue, which arose before Reyes J, was the question whether in the event that he had held the magistrate had no jurisdiction to deal with the autrefois pleas, he would have considered the pleas himself. Reyes J stated that, had the question arisen, he would not have done so. If the magistrate had correctly refused to consider the autrefois pleas, there would have been no decision susceptible to judicial review by the Court of First Instance.

14. The respondent appealed to the Court of Appeal against the order for mandamus made by Reyes J. On 31 May 2005, the appellants filed a notice out of time objecting to the Court of Appeal hearing the appeal on the ground that, in the light of subsequent events to be mentioned shortly, it was of academic interest only.

15. On 22 July 2005, the Court of Appeal, though recognizing that the appeal raised issues which by then had become academic, delivered judgment in the appeal from Reyes J, setting aside the order for mandamus. On 10 November 2005, the Court of Appeal issued its certificate relating to a further appeal to this Court. On 2 March 2006, the Appeal Committee granted leave to appeal, notwithstanding that the appeal raised academic issues in the light of events now to be mentioned.

16. On 17 May 2005, after an application had been made on behalf of the Secretary for Justice under s.88 of the Magistrates Ordinance to transfer the charges against the appellants and another defendant Tse Kwai Ching to the District Court, the three appellants formally entered their autrefois pleas in that Court. A hearing to deal with the preliminary issues arising from these pleas and a stay application was set down for hearing on 25 and 26 July 2005 and the trial proper was scheduled to commence on 17 October 2005 with 15 days reserved. The dates for trial were later vacated.

17. District Judge Wright heard the preliminary issues on 25 and 26 July 2005. On 31 August 2005, the judge delivered judgment rejecting the autrefois acquit pleas and refusing a stay.

18. Reyes J then granted leave to judicially review the decision of Judge Wright. Subsequently on 10 November 2005, Reyes J refused an application by the respondent to set aside the order granting leave to review. On 30 March 2006, the Court of Appeal delivered judgment dismissing an appeal by the respondent against the refusal by Reyes J to set aside the order granting leave to review.

19. Before turning to the issues and the arguments advanced in this Court, it is convenient to state briefly the approaches taken by Reyes J in the Court of First Instance and by the Court of Appeal to the questions which arose for decision.

The judgment of Reyes J

20. Reyes J accepted that it is a fundamental right under the law of Hong Kong that a person should not be tried twice for the same offence: see Hong Kong Bill of Rights Ordinance, Cap. 383, (“BORO”), BOR art.11(6) implementing International Covenant on Civil and Political Rights (“ICCPR”) art.14(7) (as required by Basic Law art.39). Reyes J considered that the provisions of the Magistrates Ordinance are to be construed in the light of this fundamental right and that, so construed, the Ordinance authorizes the determination of an autrefois plea as early as possible, that is, in committal proceedings. Further, policy reasons – the saving of time and money – favoured that course as against a later determination at the trial. His Lordship relied upon the majority decision and speeches in R v. Horseferry Road Magistrates’ Court Ex parte Bennett [1994] AC 42 to support the proposition that examining magistrates have an implied power to protect the court’s process from abuse, that this power can be exercised in committal proceedings and that it is an abuse of process to charge a person twice for the same offence. Decisions in extradition cases, such as Chen Chong Gui v. Senior Superintendent of Lai Chi Kok Reception Centre [1998] 1 HKC 522, were distinguished.

The Court of Appeal judgment

21. The judgment of the Court of Appeal (Ma CJHC, Stock and Tang JJA) proceeded on a view of what Bennett decided which differed substantially from that taken by Reyes J. The Court of Appeal held that Bennett did not decide that an examining magistrate had an unrestricted jurisdiction to deal with allegations of abuse of process. The Court of Appeal pointed out that Lord Griffiths, who expressed the majority view of the House of Lords, restricted an examining magistrate’s power to :

“… matters directly affecting the fairness of the trial of the particular accused ...”

which is an issue different from whether it would be unfair to try the accused.

22. The Court of Appeal held that it was not legitimate, as Reyes J did, to expand the meaning of Lord Griffiths’ statement by reference to Lord Lowry’s view in Bennett (at 74C-D) that trying a person twice is an abuse of process. In fact Lord Lowry’s view on the power of committing...

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