When do judges refer matters to prosecuting authorities and regulatory bodies for consideration of criminal behaviour or regulatory misconduct?10Oct2018
When judges learn of a possible crime or professional misconduct during the trial of a matter, they sometimes refer the factual issues to the Secretary for Justice (“SJ”) and/or regulatory bodies for further investigation.
In most cases judges do not specify whether they are referring the matter pursuant to any particular role or guidelines. In fact, there is no publicly available rule or guideline stating when judges should generally refer the matter to the SJ or regulatory bodies except for the circumstances set out below.
For example, section 277(1) of the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32) provides that where a liquidator in a compulsory winding up has applied for directions and if it appears to the court that any past or present officer or member of the company has been guilty of a criminal offence on the application of any person interested in the winding up the court may decide to refer the matter to the SJ.
Also, section 9A(2) of the Legal Practitioners Ordinance (Cap. 159) provides that where a complaint is made to the Council of the Law Society but it does not submit the matter to the Tribunal Convenor of the Solicitors Disciplinary Tribunal within 6 months after receiving the complaint on application by any person or on his own initiative, the Chief Judge may submit the matter to the Tribunal Convenor if he considers that the Council ought to have done so.
Principles developed in the common law
Komal Patel v Chris Au
There are no hard-and-fast rule for judges to apply when deciding whether to refer matters that concern them during the progress of their judicial duties. Zervos J (as he then was) set out applicable principles in Komal Patel and Others v Chris Au and Others  5 HKC 442 when he gave reasons for his decision to refer matters to the Attorney General of Singapore as allegedly false evidence had been presented.
A number of fundamental principles were stated (444E). A judge may make a complaint or refer alleged wrongdoing to the relevant authorities arising from or connected to proceedings before the court. A judge has the same right and public entitlement to do so as any member of the public.
In cases where it is alleged that false evidence has been presented in Court, the public interest in upholding the integrity of the administration of justice requires referral to the authorities and, if necessary, and appropriate, the release of relevant information or material in the possession of the court.
TCWF v LKKS
In TCWF v LKKS (No 1)  1 HKLRD 896, the Court of Appeal (“CA”) considered the referral by a court to the head of the prosecuting authority.
In that civil case, the trial judge had made findings of criminal behaviour according to the civil standard of proof and ordered that the judgment be referred to the Director of Public Prosecutions (“DPP”).
The appellant sought to set aside the order but the CA refused to do so. The CA concluded that the act of referral by the judge to the DPP was not appealable and explained that
“[t]he act of the judge in referring the matter to the DPP is in substance no different from the referral made by any ordinary citizen … there is no doubt that it was open to the judge to refer the matter to the DPP”.
The CA further explained that
“[t]he long standing practice of the courts is that where an arguable case of serious misconduct is disclosed by evidence in a civil trial, the court will consider referring the matter to the prosecuting authority, as it is part of the court’s duty in upholding the rule of law”.
It was argued that the judge should simply have referred the matter to the DPP as a matter for investigation, without mention of any finding of criminal behaviour. That might tend to prejudice the DPP’s consideration and the way in which the matter was considered by the public prosecutors.
The CA disagreed and said that the trial judge stated clearly that he had made findings of criminal behaviour to the civil standard of proof. Without any embellishment, the judge directed the Registrar to provide a copy of the judgment to the DPP for such action as he considered appropriate. Hence, the CA held that the language in which the referral was made would not have influenced the professional judgment of the DPP.
The Family Court referred a matter to SJ when a wife lied in an application for substituted service of a divorce petition on the husband (YSC v YWK (unrep., FCMC 2247/2001, 20 July 2015)).
The Court of First Instance referred a matter to SJ, and the Law Society and the Bar Association when lawyers were involved in a champertous arrangement and deceit (Re TCM (unrep., HCMH 34/2008, 20 July 2009)).
The CA referred a matter to the SJ when a person made vulgar abuse against the court, particularly against Rogers VP (as he then was), which raised the issue of contempt (Phoon Lee Piling Co Ltd and Anor v The Hong Kong Housing Authority (unrep., CACV 303/2002, 2 May 2003)).
Mark Side / Billy Tang
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Disclaimer: This publication is general in nature and is not intended to constitute legal advice. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.