MA PUI TUNG v. DEPARTMENT OF JUSTICE

HCAL 15/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 15 OF 2008

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J U D G M E N T

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Introduction:

1.  This application for leave to bring proceedings for Judicial Review is brought by Mr Ma, in respect of three decisions:

(1)	a decision by the Director of Public Prosecutions, (DPP), advised to Mr Ma on 12 October 2007, not to prosecute a Mr Koo Hon Pang, (Mr Koo), for any criminal offences, upon the ground of insufficient evidence;
(2)	a decision by the DPP not to stop the Official Receiver from prosecuting Mr Ma for an offence arising from a bankruptcy order made against Mr Ma;
(3)	a decision by the DPP not to give reasons for the decisions about which Mr Ma complains.

2.  Mr Ma’s application for leave was supported by a 76 page statement setting out the grounds upon which he relies, together with two extensive affidavits and 36 exhibits, running to several hundred pages.  In support of the application for leave, Mr Ma has given to me a 28 page submission supported by 11 authorities.  In addition, several days prior to the hearing of the application for leave, Mr Ma filed a third affidavit with a further four exhibits.

3.  I have, prior to the hearing today, had a full opportunity to consider both the grounds upon which Mr Ma relies, to read all the affidavits and the exhibits, and the submission that he has made, together with the authorities.  In the course of the short oral hearing Mr Ma was able to clarify a number of questions I had in relation to the papers.

4.  In reaching my decision, I have regard to the decision of the Court of Final Appeal in Peter Po Fun Chan v Society of Accountants, (unreported FACV 10/2007, 30 November 2007), in which the test as to whether leave should be granted in judicial review proceedings was fixed as being that of the case being reasonably arguable.

The disciplinary complaints:

5.  Mr Ma’s concerns follow a defended hearing before a Disciplinary Tribunal of the Hong Kong Law Society, (the Disciplinary Tribunal), at which Mr Ma faced seven complaints.  After a comprehensive hearing over 38 days, six of the complaints were found proved, wholly or in part, and one was found not proved.  Following those findings, penalties, including costs were imposed on Mr Ma by the Disciplinary Tribunal.

6.  After the imposition of penalties and costs, Mr Ma commenced judicial review proceedings against the Disciplinary Tribunal, (HCAL 421/2001).  Those proceedings were dismissed by consent.  At the time that those proceedings were dismissed, Mr Ma consented to an order for costs being made against him.  Those costs were later fixed at $39,549. 

7.  Mr Ma did not pay those costs, and the Law Society commenced bankruptcy proceedings against him.  Following a hearing on 10 May 2004, at which Mr Ma was present and presented argument to the contrary, Chung J. made an order in bankruptcy on 17 May 2004.

The background to the complaints:

8.  The Law Society disciplinary complaints against Mr Ma arose as a result of civil proceedings in which Mr Ma acted for Mr Koo in 1996.  The conduct by Mr Ma of those proceedings lead ultimately to Mr Koo making various complaints to the Law Society, resulting in the charges faced by Mr Ma.

9.  A crucial witness in the disciplinary proceedings against Mr Ma was Mr Koo.  The Disciplinary Tribunal accepted the evidence of Mr Koo.  Their acceptance of that evidence was a crucial step in the Disciplinary Tribunal finding various of the charges proven against Mr Ma.  Mr Ma takes the view that Mr Koo perjured himself in the course of those proceedings and that consequently his conviction on the six charges was not justified. 

10.  If Mr Ma is right, and Mr Koo is successfully prosecuted for perjury, then arguably, the whole basis upon which the Disciplinary Tribunal made its decision would be called into question.  At the very least there would be an argument available to Mr Ma that the decision of the Disciplinary Tribunal should be set aside.  An inevitable consequence upon the setting aside of the findings against Mr Ma would be the setting aside of any monetary orders made as a result of those findings.  The question would then arise as to whether the disciplinary complaints should be reheard. 

11.  The bankruptcy order, being based upon a failure to pay costs pursuant to a consent order in separate judicial review proceedings, would not be affected by a setting aside of the findings against Mr Ma.  However, should the decision of the Disciplinary Tribunal be set aside an argument may be open to Mr Ma which may entitle him to reopen the judicial review proceedings against the Disciplinary Tribunal and to have the costs order reviewed.  In that case it may be open to Mr Ma to attack the bankruptcy order.

The decisions complained of:

12.  Following numerous complaints to various people, Mr Ma placed all of the information he had before the Department of Justice and sought the prosecution of Mr Koo for perjury, or any other offences, including the perversion of the course of justice, that might appear.  The Department of Justice referred the matter to the Hong Kong Police for investigation, following which recommendations were made to the Department of Justice.

13.  Upon consideration of all matters in his hands, the DPP, by Senior Government Counsel of the Department of Justice, on 12 October 2007, advised Mr Ma in the following terms:

“	The police have recently completed their investigations into your complaints.  The case has been reviewed and the further allegations of crime studied.  It is considered there is insufficient evidence to warrant commencing a criminal prosecution.”

14.  Mr Ma was not satisfied with that response and immediately wrote a series of letters to the DPP asking him to review the decision made.  These letters elicited a response on 21 November 2007, in the following terms:

“

It is noted that you hold certain views as regards the strength of the evidence in the case.  However, your allegations of crime have been considered by more than one counsel from this Department on more than one occasion.  As you are probably aware, when considering the institution of criminal proceedings, the policy is that a prosecution should not be started unless the prosecutor is satisfied that there is admissible, substantial and reliable evidence that a criminal offence known to law has been committed by an identifiable person.  A bare prima facie case is not enough to justify a decision to prosecute.  The proper test is one of reasonable prospect of conviction.  This decision requires an evaluation of how strong a case is likely to be when presented at trial, taking into account many factors including the availability and credibility of witnesses and their likely impression on the court.  Any defences which are plainly open to the defence must also be considered.

The above matters have been taken into account in assessing the evidence in this case.  The quantity and quality of the available evidence, after police investigation, is not quite the same as the quantity and quality of evidence as it may appear from the bundles of materials which you appear to have.  You may disagree with the decision and the view taken of the availability, quantity and quality of the evidence.  However as stated before, the decision has been taken that a prosecution is not warranted in this case.”

15.  Notwithstanding this explanation, Mr Ma still considers that criminal proceedings should be brought against Mr Koo.  Mr Ma contends that while the letter may convey the decision, it does not explain the reasons for the decision.  Hence this application for leave to issue judicial review proceedings.

The basis of Mr Ma’s complaint:

16.  It is clear from the papers before me that at the heart of Mr Ma’s concern is a deeply held conviction on his part that Mr Koo perjured himself before the Disciplinary Tribunal.  Mr Ma does not suggest any other basis upon which either his conviction by the Disciplinary Tribunal, or the subsequent bankruptcy order, might be interfered with.

Is a decision of the Secretary for Justice open to judicial review in Hong Kong:

17.  The plain answer to this question, at the present time, is that it is not.   In Keung Siu Wah v Attorney General [1990] 2 HKLR 238.  Fuad VP, the leading judgment says:

“

I entertain no doubt whatever that the decision to prosecute in the instant case, likewise is not subject to the judicial review process; such a decision does not fall within the criteria for a reviewable decision stated by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at pp 408-9.  Only the Attorney General has access to all the necessary information.”

And in the brief judgment of Penlington JA:

“

I also agree with the judgment of Fuad VP.  There is no doubt that any Court may refuse to hear proceedings which it regards as an abuse of the process (per Lord Parker in Mills v Cooper [1967] 2 QB 459 at 467) but the authorities are overwhelming that the decision of the Attorney General whether or not to prosecute in any particular case is not subject to judicial review.”

18.  That the decision in Keung Siu Wah is binding on the Court First Instance has been recently recognised by the Court of Appeal in Kwan Sun Chu Pearl v Department of Justice [2006] 3 HKC 207.

19.  In that decision Tang JA alluded to the question as to whether Keung Siu Wah should be followed, noting that it was an open question so far as the Court of Final Appeal was concerned, and that notwithstanding Young v Bristol Aeroplane Company Ltd [1944] KB 718 CA, the decision may be open to review by the Court of Appeal. 

20.  What is absolutely plain however, is that it is not open to me, not to follow Keung Siu Wah.  It being a decision of the Court of Appeal, it is binding upon me, unless it can be distinguished.

21.  Mr Ma has addressed argument to me in his written submissions in which he attempts to limit the decision in Keung Siu Wah to the question relating to the decision by the Attorney General to prosecute.  He seeks to distinguish Keung Siu Wah on the basis that in that decision the challenge was to a decision to prosecute, whereas his challenge is as to a decision not to prosecute.

22.  The distinction is one that is not open to be taken in this court.  That is plain from the passage cited from the judgment of Penlington JA, where he refers to both situations of decisions to prosecute, and not to prosecute.  That it is not open to be taken in this court is also clear from Kwan Sun Chu Pearl, where the point arose directly in the context of a decision not to prosecute.

23.  Mr Ma  contends that the decision in Keung Siu Wah should not now be followed, because since the resumption of sovereignty by the People’s Republic of China over Hong Kong on 1 July 1997, the right of the Director of Public Prosecutions to make decisions in relation to a prosecution is entirely statutory, and no longer part of the Royal Prerogative. 

24.  I am satisfied that the source of power to prosecute is irrelevant to the administration of the power by the Director of Public Prosecutions, and that it is not reasonably arguable to say that there has been any change in circumstances justifying a review of Keung Siu Wah.  In this respect I note that the decision in Kwan Sun Chu Pearl was made long after 1 July 1997, and there was no suggestion by the Court of Appeal that circumstances had changed so as to open the door for a review of Keung Siu Wah. 

25.  In any event, just as Tang JA was satisfied in Kwan Sun Chu Pearl that the application had no basis and was hopeless, so I am of the same view in respect of the decision by the DPP in this case not to prosecute. 

26.  There is nothing at all in the papers which indicates to me any basis upon which it may be said that it is reasonably arguable either, that the DPP did not correctly understand the law that regulates his decision, or that the decision was irrational in the sense of Wednesbury unreasonableness, or that there has been any failure to act with procedural fairness towards Mr Ma.

27.  For these reasons leave to commence judicial review proceedings against the decision of the DPP not to prosecute Mr Koo for any offence arising out of the evidence he gave before the Disciplinary Tribunal, is refused.

The Bankruptcy Order:

28.  The decision challenged by Mr Ma is a refusal or deliberate failure, by the Department of Justice: “to control and stop the Official Receiver from prosecuting Mr Ma for an offence under the illegal Bankruptcy Order No 19884/2003”.

29.  The Official Receiver has requested that Mr Ma should file what was described as ‘an annual return’ in relation to the bankruptcy.  Mr Ma, believing the bankruptcy to be illegal, has not filed that document.  The Official Receiver has commenced a prosecution against Mr Ma in Eastern Magistracy under ESS 21077/2007.  Mr Ma has written to the Department of Justice requesting that this prosecution be stopped on the basis that the bankruptcy is illegal.  He says he has received no formal reply to that request, and he treats the failure of the Department of Justice to reply as a refusal to stop the prosecution.

30.  It cannot be argued on any basis whatsoever that the bankruptcy order is illegal.  Mr Ma elected to bring quite separate proceedings against the Disciplinary Tribunal, which proceedings he compromised by a consent order involving the payment of costs.  He did not pay those costs.  He was heard by the court in the application to have him declared bankrupt, and his argument that there should be no bankruptcy order was rejected.

31.  That must be the end of the matter.  There is no reasonably arguable basis upon which the DPP ought to involve himself in the conduct of the bankruptcy by the Official Receiver.

The refusal of the DPP to give reasons:

32.  Mr Ma challenges a refusal on the part of the DPP to give reasons for the decisions he has made.  There is no evidence whatsoever to suggest that there has been a refusal to give reasons, in fact the letters from the Department of Justice to Mr Ma of 12 October 2007 and 21 November 2007, explain that the reason that a prosecution is not warranted is that it is considered there is insufficient evidence to warrant commencing a criminal prosecution.

33.  In any event, the attitude of the DPP to the giving of reasons for a decision to prosecute or not prosecute is well known.  It is the general practice of the DPP to refrain from giving reasons for decisions not to institute or continue with criminal proceedings, other than in the most general terms, absent exceptional circumstances.

34.  The question as to whether a DPP should be required to give reasons for such a decision was considered by the Court of Appeal of Northern Ireland in Re Boyle [2006] NICA 16, (unreported, 28 April 2006).  The court there concluded that there was no obligation on the Northern Ireland DPP to give reasons.

35.  I am satisfied that it is not reasonably arguable that the position should be any different in Hong Kong.  At paragraph 14 of the judgement in Re Boyle, the court cited the relevant passages from an affidavit filed on behalf of the DPP, explaining the position of the DPP in relation to the giving of reasons.  I have no doubt whatsoever that that explanation is equally appropriate in Hong Kong.  There is nothing in the argument made before me by Mr Ma to suggest otherwise.

Conclusion:

36.  I accordingly conclude that there are no reasonably arguable grounds upon which the decisions of the DPP about which Mr Ma complains, might be subject to judicial review.

37.  For these reasons the application for leave to bring judicial review proceedings is refused.