RE TSE SIU MAN

HCAL 68/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 68 OF 2008

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D E C I S I O N

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1.  The applicant applied for leave for judicial review against the Commissioner of Police for:

(1) a Mandamus to order the Commissioner to carry out  further investigation on a traffic accident on 8 July 2007;

(2) a Certiorari to quash the Commissioner’s decision in a letter dated 21 April 2008 that there was no conspiracy of perverting the course of justice in connection with the traffic accident on 8 July 2007.

2.  The applicant through her husband requested the respondent to be notified of the leave application and to adjourn the oral hearing in the belief that the prosecution against the applicant arising from the accident might be resolved in her favour.  I have not seen fit to do so.

Background

3.  The brief facts of the prosecution alleged that PW1 (the other driver) was driving along the first lane of Tonkin Street after stopping at the traffic light before the junction of Lin Cheung Road.  When she reached the junction, her car was hit on the offside rear by the near side front of the applicant’s car emergent from the junction.

4.  PW3, a bus driver who stopped on the second lane of Tonkin Street besides PW1 saw the accident from behind, and is called as an independent prosecution witness. 

5.  The applicant complained to the police that PW3 had framed her up.  The police wrote back on 31 April 2008 that there was no evidence of perverting the course of justice.

The applicant’s case

6.  The applicant complained of the following irregularities in the handling of the case:

(1) the police has initially given the wrong registration number of PW3’s bus;

(2) one page of PW3’s witness statement was missing from the prosecution bundle supplied;

(3) PW3 had five previous traffic convictions;

(4) PW2, PW1’s husband, had two previous traffic convictions; and

(5) the police investigation of the relationship of PW1 and PW3 consisted only of the simple question and a bad denial in PW3’s witness statement.

7.  The applicant has requested the police to obtain the video recording, if any, from the Asian Golf Club near the scene of the accident, but there was no result as yet.  The basis of this request was the belief that the course of the accident might have been captured.

Applicable principles

8.  The test for granting leave for judicial review is one of reasonable arguability meaning one which enjoys a realistic prospect of success, and is a higher threshold compared to the potential arguability test in the past, and the same test should be applied whether the issue is one of law, for example, statutory construction or fact, for example, procedural fairness involving investigation of facts (Chan Po Fun v Winnie Cheung [2008] 1 HKLRD 319 (CFA) per Li CJ at paras. 12-16).

9.  In Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223, the English Court of Appeal held that the court in judicial review proceedings is not a Court of Appeal, and can only interfere with an act of executive authority if it be shown that the authority has contravened the law.  Lord Greene MR referred to the errors of: (1) failing to take into account relevant consideration; and (2) Wednesbury unreasonableness.

On point (1), his Lordship said at p. 228:

“If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion it must have regard to those matters. Conversely, if the nature of the subject matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.”

And on point (2), at p. 230:

“It is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever come to it, then the court can interfere.”

10.  Save in exceptional circumstances, the judicial review jurisdiction will not be exercised where other remedies were available and have not been used (R v Epping & Harlow General Commissioners, ex parte Goldstraw [1983] 1 All ER 257, 262 per Sir John Donaldson MR, cited in Yeung Chun Pong v Secretary for Justice [2003] 3 HKLRD 1, 30 per Stock J at para. 64).

Discussion

11.  Although the application is taken against the Commissioner, the purpose of the applicant’s application is obviously directed towards the decision to prosecute her undertaken through the police.  She would have hoped to convince the police to accept her arguments and not to rely on the intended prosecution evidence. 

12.  Whilst the question of whether the decision to prosecute by the Secretary for Justice is judicially reviewable by reason of the freedom from interference clause under Art. 63 of the Basic Law is still a moot point (Bruce on Criminal Procedure: Trial on Indictment 2007, III [51]), considerations relating to the English Attorney-General’s discretion to prosecute and on the Court’s discretion to stay the prosecution is apposite here.  In England, the decision to institute prosecution is only amenable to judicial review in rare and exceptional cases, and the court will refuse to entertain a judicial review application where the complaint could be raised within the criminal trial and appeal process (R v DPP, ex parte Kebilene & ors [2000] 2 AC 326).  Without derogating from the duty to prevent abuse, the courts must remember the boundary between the court’s function and that of the prosecutor (Yeung Chun Bong ob. cit. para. 63).

13.  The applicant’s complaint is directed to the merits of the prosecution case.  The police has apparently acted upon the independent evidence of PW3.  Bearing the concealment of material evidence, it is up to the police to decide how an investigation is to be conducted, and what evidence will be relied on.  It is for the magistrate to find out whether any witness, say PW3, is worthy of belief.  None of the matters raised cannot be dealt with at the trial. 

14.  It is all too easy to levy the accusation of perverting the course of justice against the opposite party, but I see nothing untoward about the police handling of this case.

15.  In the premises, leave is refused.