NGUYEN VAN DUONG v. THE DIRECTOR OF IMMIGRATION

HCAL 2464/2025

[2025] HKCFI 5594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2464 OF 2025

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D E C I S I O N

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A.  Introduction

1.  The Applicant is the defendant in Shatin Magistrates’ Courts case number STCC 423/2019, being the prosecution of the Applicant on the charge of “Remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong”.

2.  In a letter dated 2 September 2025, the Applicant asked the Director to withdraw and cancel the prosecution against him for reasons which he explained in that letter. Those reasons can broadly be termed humanitarian or compassionate reasons.

3.  By letter of 17 September 2025, the Director informed the Applicant (“Director’s Decision”) that, after careful consideration of the Applicant’s letter dated 2 September 2025, the proposal in that letter could not be acceded to, and the ongoing prosecution and charge against the Applicant would be maintained and proceeded with.

4.  I note that the Decision letter references a court hearing date of 6 November 2025.

5.  By his Form 86 dated 5 November 2025 – i.e. the day before the Court hearing date – the Applicant seeks leave to apply for judicial review to challenge the Director’s Decision. The relief sought is (1) an order of certiorari quashing the Director’s Decision and (2) an order of mandamus compelling the Director to reconsider the Director’s decision.

6.  The Applicant’s supporting affirmation materially simply exhibits both (1) his letter dated 2 September 2025 to the Director, and (2) the Director’s Decision.

7.  Having considered the materials, it seems to me that this application can appropriately be dealt with on paper. This is my Decision.

B.  Analysis

8.  The application can be dealt with in short order.

9.  This is because in neither the Form 86 nor the affirmation is there any proper identification of any specific or proper grounds of review, in the identification of any alleged public law wrong. This failure to meet the mandatory requirement in RHC Order 53 rule 3(2)(a) is itself a reason to refuse leave to apply for judicial review. As has been stated on numerous previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant who seeks leave to apply for judicial review.

10.  Further, the subject of the intended challenge is directed at a prosecutorial decision. However, as the law now stands in Hong Kong, prosecutorial decisions made by the Department of Justice (“DoJ”) – and, by analogous application, by the Director – are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. That is a result flowing from Article 63 of the Basic Law. The power to control criminal prosecution has been constitutionally bestowed upon the DoJ and can be reviewed only on the basis that the DoJ has exceeded the constitutional limit of broad power given to it. There is no exhaustive list where it might be said the DoJ has exceeded the constitutional powers granted to it. But, examples include where it has acted under political instructions or acted out of bad faith.

11.  Neither of those examples is put forward in this case. Indeed, by the very limited nature of the ground on which the exercise of prosecutorial powers could be reviewed, it is clear that relief of the nature sought in this application is at best extremely unlikely. However, as stated, and in any event, the Applicant has also failed to propose any ground of review at all, let alone one which could be framed as unconstitutionality.

12.  I also note that the Applicant’s application identifies that the Applicant himself at least recognises that it was and is open to the Director to pursue the prosecution and charge, albeit that the Applicant hoped to have persuaded the Director not to do so, on broadly humanitarian and compassionate reasons.

C.  Result

13.  The Applicant has failed to identify any reasonably arguable ground of review with any realistic prospect of success.

14.  Therefore, the Applicant’s application for leave to apply for judicial review is refused. I make no order as to costs.