A HIGH Court judge, who refused to release a prisoner, telling him he was in the wrong court and should have gone to the Court of Appeal, was yesterday described as effectively ''abdicating responsibility in the guise of deferring to the appellate court''. Daniel Fung QC, leading Philip Dykes, said that while Mr Justice Mortimer had accepted the prisoner's argument two months ago that the Governor's consent was needed for his prosecution, he had said the man was in the wrong court. But Mr Fung said the High Court was bound to consider matters such as the merits of an application and the speed with which an appeal could be brought. He was appearing in the Court of Appeal for Tse Sun-miu, 49, who was sentenced to three years' jail late last year for bringing illegal immigrants into Hongkong. Tse is appealing against Mr Justice Mortimer's refusal to give leave for a writ of habeas corpus and a judicial review of his prosecution in the District Court. Tse was asking to be released on grounds that the Legal Department did not obtain the Governor's consent before prosecuting him. About 200 similar cases are awaiting the outcome. Tse's test case arose because the District Court ruled last year there should be consent from the Governor, as well as the Attorney-General, before a foreigner, on board a foreign ship committing an offence in Hongkong waters, can be prosecuted.