LEUNG WAI KUEN v. SECRETARY FOR JUSTICE

HCAL 3479/2019

[2019] HKCFI 2918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3479 OF 2019

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant complains about the failure and/or refusal of the Secretary for Justice to prosecute a medical practitioner (Dr Tang) of Princess Margaret Hospital for alleged false imprisonment, assault and battery, and seeks an order to compel her to prosecute Dr Tang.

2.  The following brief facts appear from a medical report signed by Dr Tang dated 23 August 2019 (“the Medical Report”) and various emails exchanged between the Applicant and Quatas Airways Limited dated between 22 January 2019 and 18 March 2019:

(1)  The Applicant travelled to Australia for a vacation and took a Quatas flight, QF 97, from Brisbane back to Hong Kong on 21 December 2018.

(2)  During the flight, the Applicant was alleged to have behaved in a disturbing manner, yelling aloud on the plane and causing disturbance to other passengers.  He was subsequently restrained on the plane by crew members, and sent to the A&E Department of North Lantau Hospital after the plane had landed in Hong Kong on 21 December 2018.

(3)  The Applicant was assessed by the psychiatry team during his stay in North Lantau Hospital, with an impression of suspected psychosis with persecutory delusion.

(4)  On 22 December 2018, the Applicant was sent from North Lantau Hospital to Princess Margaret Hospital.  He was assessed by Dr Tang.

(5)  In the Medical Report, the following is stated –

“Mr. Leung was noted to be un-cooperative in ward & was agitated. He refused further blood taking [sic] as well as vital signs checking by ward staff starting from 23/12/2018. He also refused to sign on the refusal-form. He kept requesting to be discharged. He kept scolding me for more than 1 hour when I assessed him on 24/12/2018. He threatened that if he was not discharged, he would sue me in the future & cause me trouble. He was subsequently restrained by security guard & ward staff.”

(6)  The Applicant was transferred to Kwai Chung Hospital in the evening of 27 December 2018.

(7)  On 22 January 2019, Quatas imposed a “No Fly Notification – 2 Years” on the Applicant, which means effectively that the Applicant is not permitted to travel on any flight operated by any member of the Quatas Group or the Jetstar Group for a period of 2 years expiring on 21 December 2020.

3.  Subsequently, the Applicant made a claim in the Small Claims Tribunal (SCTC 027746/19) against the Hospital Authority and Princess Margaret Hospital for false imprisonment.

4.  The Applicant further alleges that the passage in the Medical Report quoted in paragraph 2(5) above amounts to a confession by Dr Tang to having committed the offences of assault, battery and false imprisonment, and demands the Secretary for Justice to prosecute Dr Tang for those offences.  In a letter dated 11 October 2019 to the Applicant, the Department of Justice state, inter alia, that they do not have any power to investigate complaints against doctors, and refer the Applicant to lodge any complaint of professional misconduct with the Medical Council.  In a further letter dated 24 October 2019 to the Applicant, the Department of Justice repeat that they do not have any power to investigate complaints against doctors and are not vested with any investigative power, and that it is only upon receiving an investigation report from a law enforcement agency that the Department will be able to consider whether there are sufficient grounds to institute prosecution.  The letter concluded by stating that if the Applicant suspects that someone has committed a crime, he may contact the Police first.  The same points are repeated in the Department of Justice’s letter to the Applicant dated 4 November 2019.

5.  On 25 November 2019, the Applicant made the present application for leave to apply for judicial review.

6.  It is trite that the court, in an application for judicial review, cannot interfere with the prosecutorial decisions of the Secretary for Justice save on the ground that she has acted outside the constitutional limits of her power to control criminal prosecutions under Article 63 of the Basic Law.  No such ground exists, or arguably exists, in the present case.

7.  Furthermore, without full investigation of what actually occurred during the time when the Applicant was assessed by Dr Tang on 24 December 2018 at Princess Margaret Hospital, it is plainly not possible for the Secretary for Justice to be satisfied that any prosecution of Dr Tang for the alleged offences of assault, battery or false imprisonment, or other possible offences, would be justified.  The Department of Justice’s general practice of making prosecutorial decisions based on investigation reports from law enforcement agencies is well established and not unlawful.  It is not necessary to consider whether there could be any exception(s) to this general practice, because there are no special or exceptional circumstances in the present case as could possibly justify a departure from it.

8.  The application for judicial review is not reasonably arguable, and has no realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.