George Tan Soon Gin v Judge Cameron and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 16 July 1992 |
| Date | 16 July 1992 |
| Court | Privy Council |
Hong Kong - Judicial review - Refusal to stay or postpone criminal proceedings - Dismissal of application for judicial review - Whether judicial review proceedings civil or criminal - Whether Court of Appeal having jurisdiction to entertain appeal -
The applicant, the chairman of a group of Hong Kong companies which collapsed in 1983, was charged with various offences arising out of the collapse of which he was eventually acquitted. In 1985 he was charged with other offences which were to be tried in the High Court of Hong Kong, but the prosecution encountered difficulties in bringing the case to trial. In 1988 the applicant was charged with six other offences, and in 1989 with two further offences which had been under investigation since 1983. The Attorney-General of Hong Kong decided that the 1988 and 1989 charges should be tried in the district court before the High Court trial of the 1985 charges. The applicant applied to the district judge for a perpetual stay of the prosecution of the 1989 charges on the ground of delay amounting to an abuse of process, and an order postponing the trials of the 1988 and 1989 charges until the conclusion of the High Court trial on the grounds that to try them before would inevitably prejudice the applicant's defence at the High Court trial. The district judge refused both applications. The applicant applied to the High Court for judicial review of those decisions but the application was dismissed. On appeal the Court of Appeal held that it had no jurisdiction under section 13(2)(a) of the Supreme Court OrdinanceF1 to hear the appeal since the proceedings before the High Court judge were criminal and not in any civil cause or matter.
On the applicant's appeal to the Judicial Committee against the ruling of the Court of Appeal and against the judgment of the High Court: —
Held, dismissing the appeal, (1) that the applications to the district judge and the application for judicial review of his decisions had all been made by the applicant in a criminal cause because they related to the manner in which the district court trials should proceed, and so his appeal was not from a judgment of the High Court judge in a civil cause or matter within section 13(2)(a) of the Ordinance; and that, therefore, since no other provision had conferred jurisdiction on the Court of Appeal to entertain the appeal, that court had correctly declined to hear it (post, pp. 256G, 260E–F, G–H).
(2) That the court's discretionary jurisdiction to stay criminal proceedings should be exercised very sparingly and only in exceptional circumstances; that, while the longer the delay was the greater was the likelihood that the prosecution was at fault and that the defendant had suffered prejudice and the less the prosecution could explain the delay the easier it would be to infer fault, the question whether the defendant had discharged the heavy burden of demonstrating that it would be an abuse of the process of the court for the proceedings to continue, was to be considered in the light of all the circumstances without applying shifting burdens of proof; and that, accordingly, since the district judge had correctly taken into account all the relevant factors, and had made no error as to the burden of proof, there were no grounds on which the High Court judge could have reversed the district judge's decision not to grant a perpetual stay of the 1989 prosecution (post, pp. 261B, 264E–F, G–H, 265A–B).
(3) That the existence of pending proceedings in a court of superior jurisdiction was a factor to be taken into account by a judge in deciding how in the interests of justice to exercise his powers to regulate proceedings in his own court; that the district judge had properly assessed the situation and had not erred in refusing to postpone the trials in his court until after the High Court trial; and that, accordingly, there had been no ground for interfering with his decision (post, pp. 265F–G, 266G).
The following cases are referred to in the judgment of their Lordships:
Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government[
Application by a Firm of Solicitors, In re[
Attorney-General v. Alick Au Shui Yuen (unreported), 3 October 1991; Court of Appeal of Hong Kong, Civil Appeal No. 149 of 1991
Attorney-General's Reference (No. 1 of 1990)[
Carr v. Atkins[
Connelly v. Director of Public Prosecutions[
Day v. Grant (Note)[
Hunter v. Chief Constable of the West Midlands Police[
Jago v. District Court of New South Wales(
Mills v. Cooper[
Reg. v. Bow Street Stipendiary Magistrate, Ex parte Director of Public Prosecutions(
Reg. v. Brentford Justices, Ex parte Wong[
Reg. v. Chief Registrar of Friendly Societies, Ex parte New Cross Building Society[
Reg. v. Derby Crown Court, Ex parte Brooks(
Reg. v. Heston-Francois[
Reg. v. Humphrys[
Reg. v. Kray(
Reg. v. Southampton Justices, Ex parte Green[
Reg. v. Telford Justices, Ex parte Badhan[
Reg. v. West London Stipendiary Magistrate, Ex parte Anderson(
Smalley, In re[
United States of America (Government of the) v. Bowe[
The following additional cases were cited in argument:
Application by Attorney-General, In re[
Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation[
Council of Civil Service Unions v. Minister for the Civil Service[
Hui Chi-ming v. The Queen[
Reg. v. Buzalek and Schiffer[
Reg. v. Derby Crown Court, Ex parte Brooks(
Reg. v. Gray (unreported), 25 April 1990, No. 13 of 1989,
Reg. v. Harris[
Reg. v. Independent Television Commission, Ex parte TSW Broadcasting Ltd., The Times, 30 March 1992,
Reg. v. Norwich Crown Court, Ex parte Belsham[
APPEAL (No. 10 of 1992) with leave of the Court of Appeal of Hong Kong, and with special leave, by the applicant, George Tan Soon Gin, from the judgment of the Court of Appeal of Hong Kong (Yang C.J., Silke V.-P. and Bewley J.) given on 29 November 1991, whereby they held that they had no jurisdiction to hear the applicant's appeal from the judgment of Barnett J. delivered on 13 May 1991 in the High Court [
At the close of the hearing before the Judicial Committee Lord Keith of Kinkel announced that their Lordships would advise that the appeal should be dismissed for reasons to be delivered later.
The facts are stated in their Lordships' judgment giving the reasons for their decision.
Graeme Hamilton Q.C. and James Guthrie for the applicant.
Clive Grossman, Deputy Director of Public Prosecutions, Hong Kong, and Graham Harris, Deputy Principal Crown Counsel, Hong Kong, for the Attorney-General of Hong Kong.
The district judge did not appear and was not represented.
29 June. The judgment of their...
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