HKSAR v Chow Grasp Tung (2024) 27 HKCFAR 71 (Judicial Evaluation)

1. A collateral problem exposes to authorized scrutiny a public regulation act or choice in proceedings the first object of which isn’t to impugn the validity of that act or choice. The general public regulation problem, quite, is ‘collateral’, ‘oblique’, or ‘incidental’ to the principle problem underneath willpower, which would be the legal responsibility or guilt of the defendant. As a collateral problem is asserted outdoors the parameters of typical judicial overview, it’s neither topic to nor encumbered by the procedural peculiarities that underpin the latter, thus rendering it an ‘exception’ to the well-recognised rule of procedural exclusivity in O’Reilly v Mackman. Within the prison context, a collateral problem usually contests a public regulation act, the lawfulness of which constitutes an important ingredient of the offence with which the defendant is charged, counting on for instance the acquainted grounds of illegality, irrationality, and procedural impropriety. If profitable, the collateral problem will undermine the prosecution’s case and probably result in an acquittal.

2. The doctrine of collateral problem was just lately thought of by the Hong Kong Court docket of Ultimate Enchantment (CFA), the apex court docket of the jurisdiction, in HKSAR v Chow Grasp Tung. In a cut up choice by a slim margin of three-to-two, a majority of the CFA reaffirmed the rules governing the provision of collateral problem in prison proceedings laid down in R v Wicks and Boddington v British Transport Police, that are rooted in statutory interpretation. Moreover, the CFA explicitly recognised a discrete class of collateral problem, the place the problem stems not from statutory non-compliance or typical public regulation grounds (i.e. unusual collateral problem), however incompatibility with constitutional provisions within the Primary Regulation and Hong Kong Invoice of Rights, the Particular Administrative Area’s statutory constitution of rights incorporating the Worldwide Covenant on Civil and Political Rights (i.e. constitutional collateral problem).

3. Whereas the defendant ultimately fell in need of escaping conviction, the judgment…