RE NG CHI KEUNG

HCAL 27/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 27 OF 2013

______________________________________

1.  The applicant applies for leave to judicially review decisions, said to be those of the Director of Public Prosecutions, first, to take over private prosecutions which the applicant had instituted against three persons with whom he formerly enjoyed business dealings and, second, to discontinue those prosecutions. In addition, he seeks a declaration that the Secretary for Justice (the Secretary) and/or the Director of Public Prosecutions (the Director) had breached their own policy in arriving at the decisions.

2.  The application for leave to apply for judicial review is accompanied by detailed and lengthy grounds upon which the relief is sought; a copy of the document referred to as "Brief Facts" which was laid before the Magistrate for the purposes of issuing the summonses for the criminal prosecutions; a copy of the "Skeleton Written Submissions" in support of those brief facts; four bundles of documents encompassing the material placed before the Magistrate as well as annexures to affirmations by the applicant and copies of correspondence with the Department of Justice. There is considerable duplication in the documentation which well exceeds 1100 pages.

The background to the application

3.  To appreciate the circumstances which gave rise to this application it is necessary only to extract from the letter dated 27 December 2012 from the Director to the applicant’s solicitors in which the decision to discontinue the private prosecutions was conveyed:

“I note by way of background that [the applicant] together with others is facing charges of conspiracy to blackmail Hui Chi-ming (Hui). This case has been set down for trial in the Court of First Instance in HCCC 66 of 2010.

In December 2011, [the applicant] lodged a complaint with the police alleging that Hui, Xie Xinhua (Xie) and Guo Weihua (Guo) conspired to make a false report to the police in relation to two incidents of theft of shares. On 20 July 2012, [the applicant], through your firm laid informations in the Magistrates’ Court for private prosecution against Hui, Xie and Guo. On 21 July 2012, the case was adjourned to 18 September 2012 as the Magistrate requested information as to whether or not prosecution action had been decided by the Department of Justice. On 13 September 2012, you were advised by the Department of Justice that on the information obtained as a result of the police investigation it was decided that no prosecution action would be instituted against Hui, Xie and Guo.

On 18 September 2012 the case was adjourned to 12 October 2012. By way of notice dated 10 October 2012 under section 14(3) of the Magistrates’ Ordinance, Cap 227, the proceedings were taken over by the Secretary for Justice on 12 October 2012. The summonses against the three defendants had not been served and the case was adjourned to 14 December 2012 to enable the complainant to provide further information to the police for investigation.

Under cover of a letter dated 16 October 2012, you submitted further materials which included a written submission by Mr. Daniel Marash, SC. By way of letter dated 5 November 2012, you made further submissions on your client's behalf which included a reference to comments by the Magistrate in the hearing of 12 October 2012. This was the subject of an exchange of correspondence from us on 23 November 2012 and from you on 6 December 2012.

The case was further adjourned to 28 December 2012.

The case has been carefully considered including the information and materials submitted by you and the representations you have made on your client's behalf. It has been decided to discontinue proceedings instituted by your client on the ground of sufficiency of evidence in that the test as to whether there is a reasonable prospect of conviction is not satisfied on the evidence. In evaluating the evidence and coming to this decision we have been guided by The Statement of Prosecution Policy and Practice 2009. We direct your attention, in particular, to paragraphs 7 and 11. I also refer to the recent Supreme Court case of R (Gujva) v Crown Prosecution Service [2012] 3 WLR 1227. The case turns essentially on the evidence of [the applicant], and after careful consideration of the available evidence, there are issues as to his credibility and reliability of his evidence that rendered the reasonable prospect test not satisfied.” [Emphasis supplied]

4.  It is clear from the applicant’s several affirmations, and some of the supporting documents, that there are matters of contention between him and Hui, Xie and Guo, as well as various others, arising from business matters occurring in or about 2007. This has given rise to both civil and criminal litigation: all are ongoing.

5.  It is unnecessary for the purposes of these proceedings to detail the various contentions behind the pending litigation although it is worth noting that three of the pending actions are HCCC 66/2010 which are criminal proceedings against the applicant and four other persons, none of whom is Hui, Xie or Guo, apparently as a result of a complaint by Hui; HCA 287/2010 which are civil proceedings, instituted by Xie against the applicant and another; HCA 1529/2011 which also are civil proceedings, instituted by the applicant against Hui, Xie, Guo and Others which allege, as the cause of action, the same facts as are relied upon by the applicant in his applications for the three summonses for private prosecution.

6.  Perhaps the most significant features, insofar as this application is concerned, that appear from the letter quoted above are: first, there was an investigation by the police and consideration by the Department of Justice between the applicant’s complaint being made in December 2011 and September 2012 when the decision not to prosecute the complaint was communicated to the applicant; second, the applicant applied, whilst that investigation was still ongoing, for the issue of the summonses to initiate the private prosecutions, having taken the view as expressed in his affirmation , that the police were “indecisive and slow”; third, the applicant was afforded further opportunities, of which he availed himself, of providing additional evidence and making representations once the decision not to prosecute had been communicated to him; fourth, despite such additional evidence being supplied, the decision was made to terminate the private prosecutions on the basis that there was not a reasonable prospect of conviction.

The preliminary submissions on behalf of the applicant

7.  The applicant raised a number of matters in his grounds prior to dealing with the particular decisions. I shall deal with those briefly.

8.  I accept the submission that decisions of the Secretary for Justice and Director of Public Prosecutions may be amenable to a judicial review although it is well settled, as the applicant appears to acknowledge, that this court will interfere with the proper exercise of the power to prosecute or to decline to prosecute only in exceptional circumstances: it will exercise its power of review sparingly. See, for example:

“20... the rule that ensures the Secretary's independence in his prosecutorial function necessarily extends to preclude judicial interference, subject only to issues of abuse of the court process and, possibly, judicial review of decisions taken in bad faith.”

per Stock JA (Ma CJHC and Kwan J, concurring) in Re: C (A Bankrupt) [2006] HKC 582 and, further:

“26. A private prosecution, once commenced, may be taken over by the Secretary and continued or discontinued as he sees fit. In the case of proceedings before a magistrate this is provided for by section 14 of the Magistrates’ Ordinance…” [Emphasis supplied]

9.  The applicant contends that there exists a real, if subtle, distinction between a decision to prosecute and a decision not to prosecute. The applicant was advised of the decision not to prosecute, consequent upon the police investigation, by letter dated 13 September 2012: he made no attempt to judicially review that decision. Neither decision in respect of which complaint is now made is a decision not to prosecute but rather, by the 1st Decision, one to take over three existing prosecutions and thereafter, by the 2nd Decision, one to discontinue those prosecutions. Whether a difference between a decision to prosecute and not to prosecute in fact exists does not appear to me to assist the applicant in these proceedings given the nature of the Decisions.

10.  The applicant also makes reference to s 14(1) of the Magistrates’ Ordinance, Cap 227, as providing a mechanism for the Secretary to "... have applied for a review and made any submissions on both evidence and law...". The submission suggests that the Secretary could have applied to the Magistrate to review his decision to issue the summonses. With respect, that section simply empowers the Secretary to intervene in review proceedings held before a magistrate pursuant to the provisions of s 104 of the Magistrates’ Ordinance: that this is so appears clearly from s 14(2). Be that as it may, even if the applicant were correct in his contention in this regard, whether to follow that course or whether to exercise his undoubted power to take over the existing prosecutions would be a matter for the discretion of the Secretary. The submission is of no assistance to the applicant.

The applicant’s submissions in respect of the 1st Decision

11.  Two grounds are advanced in support of the application relating to the 1st Decision although they are inextricably interlinked: first, that the Director failed to follow the Department's own Statement of Prosecution Policy and Practice (the Policy); second, that by virtue of that failure the decision is perverse and Wednesbury unreasonable.

12.  Paragraph 11 of the Policy relates to private prosecution and intervention by the Secretary, paragraphs 11.6 and 11.7 providing:

11.6   In considering whether to take over a prosecution the following factors are relevant:

(a) whether the public interest will be advanced if the prosecution is taken over;

(b) the wishes of the parties;

(c) whether the prosecution will be taken over to be terminated. If so, regard will be had to whether:

(i) the proceedings are vexatious or oppressive;

(ii) there are reasonable prospects of success;

(iii) a decision already taken by the Department of Justice will be thwarted;

(iv) there is any duplication of proceedings involving the same incident;

(v) the Department of Justice should offer no evidence or enter a nolle prosequi;

(d) whether there would be a fair trial;

(e) the seriousness of the charge;

(f) whether the proceedings are contrary to the public interest.

11.7  The public interest may at times override the individual interests or wishes of those who institute criminal proceedings. The taking over of proceedings is exceptional. A prosecution will not be taken over unless that course is approved personally by the Secretary for Justice.

13.  It is worth also noting the background against which decisions are to be made as appears in paragraph 7.1 of the Policy which reads:

The prosecutor must consider two issues in deciding whether to prosecute. First, is the evidence sufficient to justify the institution or continuation of proceedings? Second, if it is, does the public interest require a prosecution to be pursued?

as well as a paragraph 8.1 which provides:

When considering the institution or continuation of criminal proceedings the first question to be determined is the sufficiency of evidence. A prosecution should not be started or continued unless the prosecutor is satisfied that there is admissible, substantial and reliable evidence that a criminal offence known that the law has been committed by an identifiable person. The Secretary for Justice does not support the proposition that a mere prima facie case is enough to justify a decision to prosecute. The proper test is whether there is a reasonable prospect of a conviction. [Emphasis supplied]

14.  The test of “reasonable prospect of a conviction” imposes a higher standard than whether there is a prima facie case to answer.

15.  It is submitted that there are four respects in which the Policy has been breached. The first submission is that the applicant’s wishes had not been ascertained before the decision to take over the prosecution was made. Indeed, they were not, but given that he had indicated already his impatience with the investigation by taking out the summonses for the private prosecutions, his attitude was abundantly clear: to have done so would have been nothing more than window dressing.

16.  Second, it is submitted that there was no basis for concluding that the public interest would be advanced by taking over the private prosecution. Paragraph 11.6(a) requires the advancement of the public interest to be considered but does not require advancement of the public interest as a precondition to any private prosecution be taken over. It must be self-evident that it is in the public interest that proceedings which do not show a “reasonable prospect of a conviction” are not instituted or continued even if only from the prosaic aspect of preventing the waste of resources.

17.  Third, there existed no exceptional circumstances to justify taking over the prosecutions. This is to take out of context the second sentence in paragraph 11.7 which simply amplifies the sentence preceding it.

18.  Fourth, the submission is made that the 1st Decision was not approved personally by the Secretary but rather it was made by the Director. Insofar as the 1st Decision is concerned it cannot sensibly be argued that the Secretary did not act through the Director when the 1^st Decision was made. I deal more fully with the submission concerning delegation at §§49 to 59 below.

19.  In regard to the submission that, because of the supposed failures to follow the Policy, the decision was perverse and thus Wednesbury unreasonable what is notable is that the applicant chooses to ignore the provisions of paragraph 11.6(c) which specifically deals with considerations which come into play where a prosecution will be taken over in order to be terminated - the present situation. As can be seen from paragraph 12 above there are five particular matters which the Secretary is required to take into account, of which three are of particular relevance in these proceedings: whether there is “reasonable prospect of a conviction”; whether a decision already taken by the Department of Justice will be thwarted; and whether the Department of Justice should offer no evidence or enter a nolle prosequi.

20.  As has already been noted, it was made clear to the applicant from the correspondence that the view was taken that there was no “reasonable prospect of a conviction”.

21.  At the time when the decision was made to take over the three prosecutions, the decision not to prosecute had already been made by the Department of Justice: the private prosecutions would have thwarted that decision.

22.  The decision was taken to discontinue the private prosecutions which, necessarily, would have required consideration of whether there should be offered or a nolle prosequi entered.

The applicant’s submissions in respect of the 2nd Decision

23.   Three grounds are advanced as the challenge to the 2^nd  Decision these being that it is Wednesbury unreasonable; the policy of applying the test of “reasonable prospect of a conviction” in the case of private prosecutions is unlawful; the decision by the Director is ultra vires.

1. Wednesbury unreasonable

24.  The fundamental submission in regard to the decision being Wednesbury unreasonable is that it was made based upon a combination of errors. These are categorised as: (1) the evidence against Hui, Xie and Guo was overwhelming; (2) it was wrong to take the view that the case turns essentially on the evidence of the applicant; (3) it was wrong to take the view that there are issues as to the applicant’s credibility and reliability; (4) no independent legal advice was obtained; (5) the Policy had been breached.

25.  The applicant asserts that the evidence against Hui, Xie and Guo was overwhelming. That may well be his view of the matter. A more moderate submission would be to the effect that the evidence is at least sufficient to disclose a prima facie case for the potential accused to answer. That, however, is not the criterion which the Secretary is required to apply in terms of the Policy: see paragraph 13 above.

26.  Reliance appears to be placed on a comment passed by the Magistrate during the proceedings in which the Secretary took over the private prosecutions. I have the same material before me as did the magistrate. With respect, that comment was nothing more than a personal aside, an opinion expressed without the benefit of all the information available to the Secretary.

27.  The second submission is that it is wrong to take the view that the case turns essentially on the evidence of the applicant. In support of this, the applicant appears to rely on a passage in a judgment of To J in the civil proceedings under HCA 1529/2011 to the effect that the applicant has "... a strong prima facie case based on the documentary evidence." First, that passage needs to be seen in context: it was said when dismissing an application for leave to appeal an earlier decision dismissing an application by Hui to strike out the applicant's claim. In the course of the application for leave to appeal, a new argument was sought to be introduced: although leave to pursue that argument was refused by To J, he did address it and passed that remark. As To J noted when dismissing the application to strike out "In an application under order 18, rule 19, the burden of the party seeking to strike out pleading is notoriously high.".  Second, it is, obviously, an assessment made by To J on only the evidence before him and, like the magistrate, without the benefit of the full information available to the Secretary. Third, whether there is a prima facie case is not the test that is to be applied by the Secretary.

28.  The third submission is that it was wrong to make an assessment of the applicant's credibility and reliability. That was obviously a factor which should properly be taken into account in assessing the likelihood of success of any prosecution. It is correct that the Secretary did not spell out the concerns which he had in mind: he could hardly be expected to do so. It needs to be borne in mind, however, that the Secretary had the material available to him not only in respect of the private prosecutions but also in respect of the pending criminal proceedings against the applicant when arriving at his assessment.

29.  The fourth aspect is the fact that no independent advice from the private bar was obtained despite a suggestion by the applicant’s solicitors that this be done. This suggestion was made because in the civil proceedings before To J, Hui had been represented by the Secretary who, then, was still in practice at the private bar. The submission is that this would lead a fair-minded and informed observer to conclude that there was a real possibility of bias in the making of this decision: see Deacons v White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 at 330.

30.  The reality of the situation, as the applicant acknowledges in his written submissions, is that it was the Director acting on behalf of the Secretary who made the decision. The applicant then contends that this perception of  bias remains because the Director was subordinate to the Secretary who is accountable for the decisions taken by the Director and those acting for him. Insofar as this submission implicitly may call into question the independence or integrity of the Director, I firmly reject any such suggestion.

31.  In support of this submission the applicant relies upon the decision of the Privy Counsel in the Belize Bank Ltd v The Attorney General of Belize and Others [2011] UKPC 36 particularly at §45 where the Lord Kerr said:

The Board considers that the conclusion reached in this passage is not only tenable, it is irresistible. If appointment by the Minister created the appearance of bias, why should appointment by his specially chosen delegate not do so also? But the circumstance that the Minister was, in effect, statutorily obliged to make the appointment and could not insulate his decision from the charge of apparent bias by delegating that duty must inform the consideration of the fair-minded observer as to whether there was an appearance of bias.  [Original emphasis]

32.  The facts in that case may be shortly summarised. An amount of USD10 million was missing from the government coffers in Belize. There was a change of government after an election. The new Prime Minister, who also held the office of Minister of Finance, had been active prior to the election in agitating for an enquiry as to the whereabouts of those funds. The Central Bank of Belize issued a notice to Belize Bank Ltd, through which the funds had passed, against the issue of which notice it wished to appeal. The Act under which the notice had been issued prescribed a regimen of appeal which required, inter alia, the appointment of a three-person tribunal comprising two persons appointed by the Prime Minister plus the Chief Justice or a judge appointed by him. The Prime Minister appointed two persons upon the advice of a long-serving professional civil servant. Belize Bank ultimately appealed to the Privy Council contending that the appointment by the Prime Minister would create a perception of bias insofar as the two appointees were concerned.

33.  It is unfortunate that reference was not made by the applicant to the remainder of §45 which reads:

Put simply, irrespective of the minister’s already expressed view as to what should happen to the $10 million, the fact remained that he had to make the appointment. The fair-minded observer must take that into account in deciding whether the appointments that he made were tainted by the appearance of bias.  [Original emphasis]

34.  That qualification is particularly important in the present matter, for the applicant criticises the fact that it was the Director who made the decision and not the Secretary, saying that it was the Secretary who was obliged to do so. If the applicant's contention that because the Secretary had previously acted for Hui he is precluded from making an decision despite him being, according to the applicant, under a statutory duty to do so were to be correct then that would be tantamount to saying the Secretary could never make a decision in a matter in which, in a previous capacity, he had acted professionally. That simply cannot be so. It also makes a nonsense of the applicant's suggestion that the Secretary should have sought advice from the private bar.

35.  The extract upon which the applicant relies was said in the context of the facts of that specific case, which Lord Kerr makes abundantly clear at §48:

It is necessary to deal with only some of the cases that have been canvassed for a short review of these will demonstrate that the question whether the circumstances of appointment to a Board will give rise to an appearance of bias depends critically on the particular facts surrounding the individual appointment and that this question cannot readily be answered by analogy to other cases. [Emphasis supplied]

36.  The Privy Council went on to observe:

56…. In the present case, there is nothing to suggest that the two appointees of the Minister will be anyway constrained to act other than in accordance with their oath simply because they have been appointed by the Minister. This surely is the most important consideration.

57.  A dispassionate, neutral observer in the present case should and, in my view, would conclude that there is no reason to believe that these two professional men, against whom no imputation has been made, and who would have sworn an oath to perform their functions conscientiously, would fail to do so. [Original emphasis]

37.  In the present case one has a professional person in the form of the Secretary who has delegated a number of his powers to the Director, another professional person. The Director has acted upon that delegation and as a consequence has made a decision which is attributable to the Secretary: in this sense the Secretary “acted through” the Director but with the obvious filter, in the form of the Director, against any partiality, conscious or otherwise, that may have influenced the Secretary's decision because of his prior knowledge of Hui.

38.  The fifth criticism is that the policy had been breached by failing to seek the views of the applicant as to whether the private prosecutions should be discontinued. This is an entirely unrealistic submission. The answer, self-evidently, is that he would have wished them to continue. That would have been blindingly obvious to the Secretary.

2. Applicability of test of reasonable prospect of a conviction to private prosecutions

39.  The applicant contends that the application by the Secretary of the same test of “reasonable prospect of a conviction” to discontinuance of an existing private prosecution is "unlawful" in that it wrongfully frustrates his right to have access to the courts.

40.  There can be no doubt that an individual has a right to institute a private prosecution. Equally, there can be no doubt that such right is subject to the right of the Secretary to intervene in those proceedings: see s 14(1) of the Magistrates Ordinance. Relevant factors to the decision to discontinue a prosecution have already been set out in §§13 and 20 to 23 above.

41.  This submission is based upon obiter dicta of Laws Jin DPP ex parte Duckenfield [2001] WLR 55 together with the judgments of Lord Mance and Baroness Hale of Richmond JJSC dissenting from the majority in R (Gujra) v Crown Prosecution Service [2012] 3 WLR 1227.

42.  It is the fear of “emasculating” the right to bring a private prosecution, expressed by Lord Laws, that is the recurring theme in the two minority judgments.

43.  In R (Gujra) the majority, Lord Neuberger of Abbotsbury PSC, Lord Kerr of Tonaghmore and Lord Wilson JJSC, found, in terms, that the application of the test of “reasonable prospect of a conviction” to the discontinuation of private prosecutions was lawful.

44.  Lord Wilson specifically considered the observations of Lord Laws in Duckenfield and commented at §34:

If, as the last sentence suggests, it was a preliminary view of Laws LJ in relation to this unargued point that the effect of applying the reasonable prospect test would be to eliminate private prosecutions, he was… much mistaken.

45.  In his judgment Lord Neuberger noted, at §57,  that many of the factors which can be said to justify the "reasonable prospects of success" standard in public prosecutions apply to private prosecutions, including the unfairness to potential defendants to require them to face criminal proceedings unless there was a good chance of securing a conviction and the fact that court time should not normally be taken up dealing with speculative prosecutions. He also expressed the view that cost implications applied to a substantially similar extent and that although the Director's record of successful prosecutions would not be affected detriment may still be caused to public confidence in the justice system.

46.  He continued, at §60:

... in any case where the Director has not got around to deciding whether to prosecute, or has considered the facts and decided not to prosecute, a private prosecution could be initiated. If that prosecution comes to the Director's attention, he will then have to assess, or, if he has already done so, to reassess, whether there is a better than evens prospect of the prosecution succeeding, and whether it is in the public interest that it proceeds: if both those tests are satisfied, the prosecution will be permitted to proceed (either because the Director takes it over or as a private prosecution). That, in itself, gives the right to initiate private prosecutions an undoubted, indeed a virtually unlimited, function.

47.  I am satisfied that I should follow the majority decision.

48.  Where the Secretary, through his delegate, determined that there was no “reasonable prospect of a conviction” on the evidence, applying the test prescribed by a standing policy, a person then prosecuted on the same complaint and evidence by a private prosecutor would be justifiably aggrieved. It seems to me that that would be particularly so in the present case where two separate and distinct decisions, based upon a full police investigation and supplementary representations by the applicant, resulted in one decision not to prosecute followed by another decision to terminate the applicant's private prosecutions.

3. 2^nd Decision is ultra vires

49.  The applicant points to the fact that in the letter of 10 October 2012 to the Acting Principal Magistrate at Eastern Magistracy advising that the Secretary intervenes in the private prosecutions, the Director makes specific reference to the fact that he intervenes “…pursuant to section 14(1) of the Magistrates’ Ordinance and the delegation of authority by the Secretary…” to him, whereas the letter of the 27 December 2012 "was worded in a way which makes it apparent that the decision was made by the DPP and his colleagues."

50.  The applicant contends, therefore, that the Director acted ultra vires in arriving at the 2nd Decision.

51.  The issues of intervention in the private prosecutions and whether to continue them or not were ongoing. So was the correspondence between the parties. To contend that because the Director does not repeat the same formula as appeared in earlier correspondence demonstrates that he was not, or was no longer, acting on behalf of the Secretary is simply an unrealistic proposition.

52.  The applicant also points to the provisions of s 7 of the Legal Officers Ordinance, Cap 87, which indicates that the Secretary may authorise "... any legal officer to exercise and discharge any of the rights and duties which the Secretary... is... entitled to exercise or required to discharge."

53.  It is also to be noted that there was no challenge, until these proceedings, to the assertion by the Director in his letter of the 10 October 2012 that he had been authorised by the Secretary. It was plain from that letter that it was the Director who had made that decision. The Legal Officers Ordinance does not prescribe any particular formalities for the act of delegation by the Secretary - nor, for that matter, does the Interpretation and General Clauses Ordinance, Cap. 1.

54.  Government Notice 7523 dated 6 November 2002 was described as an "Authorisation by the Secretary for Justice". It confers on different ranking officers different authorities set out in three Schedules. The Director is authorised to perform the duties set out in all three of those Schedules. Schedule 3, which applies to the Director, Deputy Director and Senior Assistant Director has as its first item:

1. Institution of criminal proceedings

Section 14 of the Criminal Procedure Ordinance, Chapter 221

55.  The applicant submits that the power “…to withdraw a case or to enter a nolle prosequi under section 15(1) of the Magistrates Ordinance was not delegated by the Secretary”. The difficulty with the applicant’s proposition is that it bundles together two separate concepts: first, entry of a nolle prosequi; second, the withdrawal of a prosecution. It is incorrect to equate those two concepts with one another.

56.  I accept that neither the power to withdraw proceedings nor to enter a nolle prosequi was specifically referred to in Government Notice 7523. I recognise, too, that s 15(1) provides that "..the Secretary for Justice may enter a nolle prosequi by informing the magistrate in writing that the HKSAR intends that the proceeding shall not continue…" and that paragraph 17 of the Policy, which deals with the entry of a nolle prosequi, observes "A nolle prosequi may only be entered on the direction of the Secretary for Justice, as the power has not been delegated.".

57.  It is evident that the entry of a nolle prosequi is regarded by the legislation as a distinct act to be performed, a particular form of halting proceedings. Its performance prima facie is reserved to the Secretary, absent an act of delegation by him. It may well be, therefore, that a formal act of delegation of that power at any level of court should be made by the Secretary to other law officers, if that is the course to follow: conversely, there may be good reasons why that has not been done. However, in the context of these proceedings, it is unnecessary for me to make any specific finding on that issue.

58.  That is because no nolle prosequi was entered in respect of the three private prosecutions. What occurred before the magistrate on 28 December 2012 was that the prosecutor, acting on behalf of the Secretary, indicated that he withdrew the summonses against the three potential accused. The prosecutor was explicit in using the word "withdraw " - that he was withdrawing the summonses, noting that they had not yet even been served on any of the potential accused. That was the basis on which the magistrate dealt with the matter.

59.  It is not necessary for there to be any specific delegation by the Secretary of the power to withdraw proceedings. Significantly, whilst the Secretary derives his power to institute proceedings from the provisions of s 15 of the Criminal Procedure Ordinance, there is no provision which specifically confers the power on him to withdraw any proceedings which he may have instituted. It could not sensibly be suggested that such power does not exist. It is a power which is conferred on the Secretary by necessary implication which, in turn, is conferred upon those delegated by him to institute proceedings.

Conclusion

60.  No application is made in terms of Order 53, Rule 3(3) for an oral hearing.

61.  It is now settled that the test to be applied in deciding whether to grant leave to judicially review a decision is that the applicant must show a reasonably arguable case, one which enjoys realistic prospects of success. (PO Fun Chan v Winnie Cheung [2008] 1 HKLRD 319).

62.  The applicant’s case in my view is unarguable and has no prospects of success.

63.  The application is refused.