SEAN LEONARD v. COMMISSIONER OF POLICE AND OTHERS

CACV 239/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 239 OF 2007

(ON APPEAL FROM HCAL 61 OF 2007)

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

Background

1. On 6 March 2007 at around midnight the applicant was assaulted by a woman at a bar in Wan Chai.  The woman hit him from behind with her open hand on the back of his head.  The applicant reported the assault to the Police by calling ‘999’.  Later on, two police officers arrived at the bar and the applicant pointed out to them the woman who had assaulted him.  The applicant explained to one of the police officers about what the woman had done to him.  The applicant said that as the police officer did not seem to understand him, he reached around the back of the police officer and tapped him lightly with the fingers of the open hand to demonstrate what the woman had done to him.  The applicant said ‘That is what she did to me, only with much more force; do you understand now what happened?  Do you now know how I feel?  Please arrest her now.’

2. The applicant said that the police officer reacted ‘negatively’ to his demonstration and told him that he should not assault a police officer.  The applicant apologised to him.  The other police officer who was present started pushing and shoving him and making threatening statements.  Several more police officers arrived at the scene and the applicant was taken to the Wan Chai Police Station where he was detained until 7:45 a.m. the following morning.  

3. When the applicant arrived at the police station, he was interviewed by a uniform police officer who took a statement from him.  The applicant refused to sign the statement.  Later on the applicant prepared another statement which set out how he was assaulted by the woman and what had happened after the police arrived at the scene. 

4. The woman was later arrested by the police for assaulting the applicant.  She pleaded guilty on 30 March 2007.

5. On 4 April 2007 the applicant wrote to the Director of Public Prosecutions explaining that he did not assault the police officer as he was concerned about the police charging him with assaulting a police officer.

6. On 15 May 2007 the applicant was informed by the police that no charge would be brought against him on the allegation of assault on a police officer.  This was confirmed by a letter dated 18 May 2007.

7. On 21 May 2007 the applicant wrote to the Department of Justice (‘DOJ’) seeking its cooperation on removing the record of his arrest from the police and any other government record systems. 

8. On 30 May 2007 the applicant received a letter from DOJ dated 23 May 2007 which confirmed that he would not be charged with assaulting a police officer but DOJ refused to comment on his request for expunging the records of his arrest. 

Application for leave to apply for judicial review

9. On 31 May 2007 the applicant lodged a notice of application for leave to apply for judicial review seeking the following relief :

(1)	a declaration that the alleged arrest and detention were unlawful;
(2)	an order that the records referring to the unlawful arrest and detention of the applicant be expunged from the record systems of the police force and the government departments;
(3)	a declaration that the police officers that were present at the bar were in dereliction of their duty by failing to make an arrest of the woman who assaulted him;
(4)	a declaration that the police officers had perverted the course of public justice by contriving and conspiring to concoct false and baseless grounds to unlawfully arrest and detain the applicant;
(5)	damages in the sum of HK$1; and
(6)	costs.

The orders

10. Saunders J adjourned the application to open court and invited DOJ to attend the hearing.  Evidence was filed by DOJ two days before the hearing. 

11. On 22 June 2007 after hearing the parties the Judge made the following order :

‘	1.	The case will continue as if commenced by service of a writ;
	2.	Applicant shall file and serve a statement of claim within 21 days;
	3.	Respondents shall file and serve Defence 28 days thereafter; and
	4.	Costs reserved.’

The appeal

12. The applicant appealed against that order.  In the Notice of Appeal the applicant asked for the orders of the Judge to be set aside and leave be granted to him to apply for judicial review by this Court and to set down the case for the hearing of the judicial review application.  Alternatively he asked for orders in terms of the relief sought in his application for leave to apply for judicial review. 

The procedure

13. Application for judicial review involves a two-stage approach.  First, the applicant applies for leave to commence judicial review proceeding.  If the Judge refuses leave then that is the end of the matter subject to the right of appeal by the applicant.  If the Judge grants leave then the applicant proceeds to file the motion for judicial review. 

14. While the application for leave to apply for judicial review is usually considered on paper the Judge has the power to hear the matter in open court.  He also has the power to invite the putative respondent to appear.  This is what the Judge did in the present case.  He is entitled to proceed in that manner. 

Was leave granted?

15. At the beginning of the appeal this Court enquired with the parties as to whether leave in fact had been granted by the Judge.  We raised this because under O.53; r.9(5) of the Rules of High Court where the relief sought is a declaration, an injunction or damages and the Court considers that it should not be granted on an application for judicial review but might have been granted if it had been sought in an action begun by writ by the applicant at the time of making his application, the Court may, instead of refusing the application, order the proceedings to continue as if they had been begun by writ. 

16. This procedure is available only after the leave had been granted.  This is quite clear by the arrangement of the various rules in Order 53 : rule 3 deals with the application for leave to apply for judicial review; rule 5 deals with the application for judicial review after leave has been granted; rule 6 deals with the question of evidence; rule 7 allows the judge to award damages; rule 8 deals with the application for discovery, interrogatories, cross-examination etc. and rule 9 deals with the hearing of the application for judicial review.

17. According to the transcript of the proceedings the Judge at the beginning of the hearing had stated that ‘I am satisfied that you do have an argument that can properly be made’.

18. Bearing in mind that the Judge had said at the outset of the application for leave that he was satisfied the applicant had an argument that can properly be made and then went on to make the order of treating the application as if it had begun by writ, it would appear that leave had in fact been granted by the Judge.  This was accepted by Mr. Leung, counsel for the respondent.    

The narrow scope of the appeal

19. Proceeding on this basis this Court is no longer concerned with whether leave to apply for judicial review should be granted or not and this appeal turns on the narrow issue as to whether the Judge was correct to make the order as he did.

Jurisdiction

20. The applicant stated that the Judge had treated his application as if it was a hearing on the judicial review application proper.  We disagreed.  Although under the terms of rule 9(5) the order made by the Judge could only be made at the hearing of the judicial review application, we do not accept that he had in fact considered the merits of the judicial review at all. 

21. In the usual situation where leave to apply for judicial review was granted on paper and then the court proceeds to hear the judicial review application, it may then direct the proceedings to be continued as if it had begun by writ.  But in this case bearing in mind the presence of the respondent at the hearing of the leave application and the evidence before him, we are of the view that the Judge was entitled to make the order instead of deferring it until the actual hearing of the judicial review application. 

22. In our view he certainly had the jurisdiction to do so.  There is no respondent’s notice that the order made by the Judge was incorrect in this regard. 

Discretion

23. The only issue then is whether the Judge exercised the discretion properly when he, upon giving leave to apply for judicial review, also ordered the proceedings to be treated as if it had begun by writ.  The Judge made such an order on the basis that there were substantial factual disputes between the parties.  Although under rule 8 the court may allow cross-examination of the deponent of the affidavit, the Judge was correct when he said that generally in judicial review hearing the matter was conducted by way of affidavit evidence and it was only in rare cases when the Court hears evidence.  This is even a stronger case because according to the evidence adduced by the respondent the version of events advanced by the applicant was hotly disputed.  In the new affidavits filed for the purpose of this appeal the applicant and an independent witness further challenged the version of events put forward by the respondent.  This is clearly a case where the Court will be required to resolve substantial factual disputes in order to consider the validity of the applicant’s claim. 

24. The applicant stated that he was more concerned with the infringement of his civil rights than his claim for damages :  the claim for damages in the nominal sum of HK$1 is a matter of principle. 

25. In our view on the facts of this case, we are not prepared to say that the Judge had exercised his discretion wrongly by ordering the case to proceed as if it had begun by writ.  It was part of his case management function to do so.  The relief sought by the applicant are declarations (or in the nature of declarations) and damages.  He would not be prejudiced if at the end of the day, the Court declared that the records should be expunged instead of ordering the records to be expunged.  These are the appropriate remedies which can be properly dealt with in a civil action. 

26. On this basis we are not prepared to interfere with the discretion.  Accordingly we would dismiss the appeal. 

Costs

27. In the normal course of events costs should follow the event.  However, bearing in mind that the concession by the respondent that leave had been granted was only made at the hearing, we would make no order in respect of the costs of the appeal and the summons to adduce new evidence.