LAU DIK SANG v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

HCAL 2770/2025

[2025] HKCFI 6382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2770 OF 2025

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D E C I S I O N

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A.  Introduction

1.  By Form 86 dated 11 December 2025, the Applicant seeks leave to apply for judicial review apparently so as to challenge the (1) a decision of the Commissioner of Customs and Excise (“Commissioner”) not to make disclosure of materials and information obtained from investigation into a complaint filed by him against a Mr Lui Yu Kin, also known as “Ken Sir” (“Mr Lui”); (2) a prosecutorial decision of the Department of Justice (“DoJ”) not to prosecute Mr Lui; and (3) the non-amendment of the Trade Descriptions Ordinance Cap 362 (“TDO”).

2.  The Form 86 names the Commissioner and Secretary for Justice as the 1^st and 2^nd Putative Respondents.

3.  Having considered the materials provided with the application, it seems to me that it can appropriately be dealt with on paper.

B.  Background

4.  I take the background from the matters set out by the Applicant in his application.

5.  On 31 January 2024, the Applicant attended a seminar (“Seminar”) on finance, stock and property investment held by the Hong Kong Small and Medium Owners Association, a programme of the Hong Kong Investment and Entrepreneurship Institute.

6.  At the end of the Seminar, Mr Lui promoted his Premium Membership Services (“Membership”) to the attendees, including the Applicant. The Applicant decided to join the Membership. After he paid the membership fees of HK$139,800, he found that it was vastly different from what Mr Lui had promoted, including:

(1)  The mode of membership fees payment was by 12 instalments (instead of 60) and 30% handling fees (i.e. HKD41,940) would be charged on request for refund.

(2)  During the promotion of the Membership, Mr Lui claimed that anyone joining the Membership would be given his Whatsapp number for asking him any question relating to stock, property or anything he is familiar with, and he would answer them as soon as possible. However, from February to August 2024, Mr Lui did not reply to any questions asked by the Applicant.

7.  In late 2024, the Applicant filed his complaint (“Complaint”) to the Customs and Excise Department (“C&ED”) about unfair trade practices allegedly committed by Mr Lui. The details of the Complaint need not be repeated herein.

8.  On 17 September 2025, the Applicant received an email from a C&ED officer to inform him that, regarding the Applicant’s Complaint, the DoJ had decided on 12 September 2025 not to prosecute Mr Lui.

9.  As is obvious, the Applicant was unhappy with the C&ED’s investigation progress and result and the DoJ’s prosecutorial decision. He filed complaints to the C&ED Complaints Investigation Group in late July 2025 and the Office of the Ombudsman on 20 November 2025 respectively.

10.  The Applicant’s affirmation also attaches copies of: (1) the email exchange between the Applicant and the C&ED officers regarding the Complaint; (2) his letter of complaint to the Ombudsman dated 20 November 2025; (3) the Ombudsman’s email of 5 December 2025 in reply to the Applicant; and (4) a letter dated 15 December 2025 from the Applicant explaining the interruption to the making of the affirmation and filing of documents to the Court due to his sickness.

C.  No Merit

11.  With respect, the application has no merit.

12.  First, is trite that an applicant for leave to apply for judicial review must identify on the Form 86 the public law grounds which the applicant says are of sufficient merit for the grant of leave. It is not for the Court to try to identify grounds for an applicant. However, I think the Form 86 has failed to identify any proper reasonably arguable public law grounds of review, on which relief is sought. Merely identifying that there was alleged non-disclosure of investigation materials and information by a law enforcement agency, unsatisfactory prosecutorial decision and the suggested necessity to amend the TDO does not identify any public law error. This is a breach of the mandatory requirements in Order 53 rule 3 of the Rules of the High Court.

13.  Nothing in the materials filed by the Applicant identifies any arguable public law wrong committed by the Commissioner and/or the DoJ. This alone is fatal to the application.

14.  Secondly, it is indeed rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, prosecutorial decisions made by the DoJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. Nothing in the materials filed by the Applicant puts forward any alleged ground of unconstitutionality.

15.  Thirdly, as can been seen from the materials filed, any complaint by the Applicant as to the alleged misinterpretation of section 17(2) of the TDO by the C&ED is untenable.

16.  Fourthly, regarding the Applicant’s assertion that the TDO is outdated and the victim’s right in respect of disclosure of information should be added to the TDO, any proposal for and the subsequent amendment to the TDO is a matter for the Administration and the Legislative Council. It is not a matter for the Court exercising its judicial review jurisdiction.

D.  Result

17.  The Applicant has failed to identify any reasonably arguable public law grounds for review with any realistic prospect of success.

18.  In those circumstances, the application for leave to apply for judicial review is dismissed.

19.  I make no order as to costs.