林建安 v. 大埔警區刑事調查隊第十二隊譚啟軒督察及另一人

HCAL 386/2023

[2023] HKCFI 2143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 386 OF 2023

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D E C I S I O N

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A.  Introduction

1.  The Applicant was the subject of a police investigation. He was arrested on 21 October 2018 and released on police bail the next day on the conditions of depositing with the police bail money of HK$100,000 (“Bail Money”) and reporting to the police on a monthly basis.

2.  The Applicant had failed to report since 17 February 2020. The police therefore applied to the Fanling Magistrates’ Courts for the forfeiture of the Bail Money in March 2022, which application was granted by order dated 25 March 2022 (“Forfeiture Order”).

3.  In his Form 86 filed on 13 March 2023, the Applicant – acting in person – sought leave to apply for judicial review of the police’s decision to apply for the forfeiture of his Bail Money and he sought the return of that sum.

4.  The two putative respondents identified in the Form 86 were the two police officers in charge of the investigation against the Applicant at different times. They have been represented in these proceedings by the Department of Justice (“DOJ”).

5.  On 25 April 2023, I granted leave for the DOJ to file an initial response and for the Applicant to file a reply. Both parties have utilized the leave granted to them filing an initial response or a reply, with supporting documents. The DOJ’s initial response was signed by Mr Wong Chin Yui, Acting Senior Government Counsel. The Applicant further sent a letter to the Court dated 26 July 2023, with the stated purpose of updating the Court with the latest development of the police investigation against him.

6.  Having considered all the materials before the Court, I am of the view that this application can be properly dealt with on paper.

7.  This is my Decision.

B.  Background Facts

8.  There is no need to go into the background facts giving rise to the police investigation against the Applicant, although both sides have elaborated on it in some detail. Such information does not inform how the Bail Money came to be forfeited. Subject to some details (some of which I shall set out below), the parties broadly agreed to the factual circumstances leading to the Forfeiture Order.

9.  The Applicant appeared to be ordinarily residing in Shenzhen. He had been complying with his bail condition by regularly travelling to Hong Kong to report bail since bail was granted up to his last reporting on 17 January 2020, on which occasion bail was extended to his next reporting date on 17 February 2020. It was undisputed that he had failed to report bail since 17 February 2020. It was also agreed that the police were able to maintain contact with him by phone call from February 2020 to August 2020, during which period the police were informed that the Applicant was stranded in Shenzhen due to the lockdown of the city arising from Covid-19.

10.  But the parties dispute what was said in a phone call made in July 2020 and what happened thereafter:

(1)  The Applicant said in the July 2020 phone call he was informed by the police that there was insufficient evidence to charge him and he only had to return to Hong Kong for a final reporting after the borders between Hong Kong and Shenzhen reopened and then the Bail Money would be returned to him.

(2)  But the police said the relevant officer had said no such things.

11.  The Applicant said he called the Police on his own initiative on 5 August 2020, 28 September 2020 and 30 September 2020. The first and the third calls went through and he explained why he was unable to come to Hong Kong. The relevant police officer showed understanding of the circumstances and allowed him to come to report bail only after the borders between the two cities re-opened.

12.  The police also said that the last phone contact was made on 10 February 2021, where the Applicant was warned that the police might apply to forfeit the Bail Money should the Applicant continue to fail to return to Hong Kong to report bail. The police also said further attempts to contact the Applicant were made by calling the Applicant’s number on 6 August 2021 and 3 February 2021, but to no avail.

13.  The Applicant said the call record in his phone does not show any missed calls from the Hong Kong police. He suggested that the relevant officers had dialed the wrong number or the calls were suspected to be made by fraudsters and were thus blocked by the “National Anti-Fraud Centre’s Application” (“國家反詐中心 App”) installed on his phone.

14.  The Applicant eventually came to Hong Kong from Shenzhen on 18 January 2023 via the Lok Ma Chau border at which point he was arrested but was released on police bail again the next day, again on the conditions of a cash deposit and regular reporting.

15.  The Applicant said he was unable to come to Hong Kong until then due to the border control imposed on the Shenzhen side. But Mr Wong pointed out that non-Hong Kong residents (to which category the Applicant belongs) had been allowed to enter Hong Kong upon production of a negative Covid-19 test certificate since September 2021.

16.  The Applicant said he was, however, unable to benefit from that arrangement because, according to the policies then imposed by the Shenzhen authority, he would need a valid travel document (such as an “Exit-Entry Permit for Travelling to and from Hong Kong and Macau” or “港澳通行證” which he had one) with an endorsement (“簽註”) from the authority. But his endorsement had expired since 2020.

17.  He had made enquiry with the Shenzhen authority for renewal of his endorsement but was told that such applications would not be processed under the then quarantine regime unless there were special or urgent needs for leaving Shenzhen. He personally attended the office of the relevant authority on 1 December 2021, explaining his need to return to Hong Kong to report police bail. As requested by the authority, he made a call to the Hong Kong police on the spot, and the police officer who picked up the call informed him that his case was still under investigation and did not request him to go to Hong Kong immediately for reporting. The Shenzhen authority was of the view that since his case was still under investigation, he had no special or urgent needs to go to Hong Kong and refused to renew his endorsement.

18.  The Applicant said it was public knowledge that major cities in China, including Shenzhen, had not opened their borders until December 2022. He also exhibited various documents showing that the change of border control policy only came about in late December 2022 or early January 2023. The actual date for opening-up of borders on both sides (Shenzhen and Hong Kong), he said, was 8 January 2023. He then immediately applied to renew his endorsement which was eventually granted on 16 January 2023.

19.  Apparently by the time Mr Wong filed his initial response dated 23 May 2023, the police investigation against the Applicant was still ongoing. He thus informed the Court so. But by his letter dated 30 July 2023, the Applicant informed the Court that he was informed by the police that advice had been sought from the Prosecution Division and no charge would be pressed against him due to insufficiency of evidence. He was officially and unconditionally released on 26 July 2023 and the bail money he deposited upon his arrest on 18 January 2023 had also been returned to him.

20.  I should also mention that the Applicant exhibited the call records from his phone, which record tallies with what he said about the existence or non-existence of certain calls, including a call dated 1 December 2021 which he said was made in the presence of the Shenzhen authority. But, of course, those call records would not reveal the content of the conversation.

21.  He also exhibited the WeChat messaging record with an officer surnamed Tsang. The record provided to me does not show the date of the messages but the Applicant said the conversation started around 18 March 2020 when his then handling officer – i.e. Officer Tsang – learned of his being stranded in Shenzhen and suggested to use WeChat to keep contact.

C.  The Arguments

22.  For reasons I shall explain below, there is no need to delve into the parties’ substantive arguments for the resolution of this case. But I shall set out parties’ arguments briefly for completeness.

23.  As I understand it, the Applicant’s complaints could perhaps be categorized into three broad grounds.

24.  First, he said the dropping of communication/contact between the police and himself resulted from the inadvertence (“疏漏”) on the part of the police. His WeChat had always been working properly, and the police could well have used the conversation started by Officer Tsang to reach him. He questioned why the case handlers subsequent to Officer Tsang did not try to reach him by WeChat. He seemed to believe the “inadvertence” was caused by the handing over of his case from the 1^st putative respondent to the 2^nd putative respondent upon the disbandment of the original investigation team handling his case. By “inadvertence”, he meant that his early understanding with the police that he only had to return to report bail after the pandemic was over and the borders were re-opened was apparently not passed on to the next handling officer when his case was transferred from one team to another. He questioned why the new handling officer did not utilise that WeChat communication channel which would surely have reached him. He also suggested that the police officers might have dialled the wrong number for those calls which the police said had been, made but which the Applicant neither received nor had a missed call record.

25.  Second, he said his inability to come to Hong Kong arose from the border control imposed by Shenzhen during the Covid-19 period, which was out of his control. He said the chronology shows that he did not try to abscond, but was genuinely prevented from coming to Hong Kong against his own wish by measures imposed by the Shenzhen authority.

26.  Third, he knew about two persons who also failed to come to Hong Kong to report bail for three years during the Covid-19 period but their bail money was not forfeited. The only difference between his case and the two other cases is that the police investigation team originally handling his case was disbanded (which necessitated the transfer of his case from the first putative respondent to the second one) while the other two cases were not subject to the same process. While not expressly said, it appears that he sought to raise a complaint of unfair treatment by drawing comparison with other cases.

27.  It might also be noted that, as pointed out by Mr Wong, the 2^nd putative respondent only picked up the applicant’s case in November 2022, long after the Forfeiture Order was made in March 2022.

28.  Mr Wong opposed granting leave on the following bases:

(1)  The Applicant has failed to set out his proposed grounds of review as required by Order of 53, Rule 3(2)(a)(iii). This alone is sufficient for the Court to refuse the application.

(2)  The decision the subject of the proposed review is not amenable to judicial review. The decision identified in the Form 86 is the police’s decision to apply for the Forfeiture Order. The police’s application was but an intermediary step leading to the Forfeiture Order. The decision to apply on its own was not a decision of a ‘decisive’ nature, or its effect has already been dissipated or overtaken by the subsequent development (i.e. the making of the Forfeiture Order). It is well established that the Court will not entertain an application for judicial review of a decision of this sort: see Financial Secretary v Felix Wong (2003) 6 HKCFAR 476; TVB v Communications Authority [2013] 5 HKC 593, etc.

(3)  In any event, there is no merit in the proposed review. It is undisputed that the Applicant was in breach of the bail condition imposed on him by failing to report. It was neither illegal nor unreasonable for the police to apply for forfeiture of the bail money in the circumstances. Such power is authorised by section 52(3A) of the Police Force Ordinance Cap 232. The Applicant offered no proper explanation as to why he had failed to make arrangements to enable him to come to Hong Kong, including by making use of the opening up of the border on the Hong Kong side since September 2021, that a warning had been given on 21 February 2021 that a forfeiture application might be made, and that the Applicant then became out of reach despite multiple calls made by the police in the 6-month period in the lead up to the forfeiture application. Mr Wong’s submissions were of course made based on the police’s version of the facts.

D.  Amenability of the intended subject of challenge

29.  I agree with Mr Wong that the police’s decision to apply for the Forfeiture Order is not amenable to judicial review for the reasons he submitted.

30.  I also accept that that was the decision identified by the Applicant in his Form 86 as the intended subject of challenge. But, I also note that towards the end of his supporting affirmation, he also prayed for the High Court to review his case in respect of the forfeiture of his Bail Money. His Bail Money was of course forfeited by the Fanling Magistrates’ Court, rather than by the police. The relief he sought in the Form 86 – the return of his Bail Money – could only arise from the quashing of the Forfeiture Order, not the police’s decision to apply for such order.

31.  I am prepared to consider this leave application on the basis that the real intended subject of challenge is the Forfeiture Order made by the Magistrate. However, such decision is still not amenable to judicial review.

32.  The Forfeiture Order was made by a Magistrate pursuant to powers granted by section 52(3A)(b) which permits a Magistrate to order any sum deposited with the police to be forfeited if a person fails to appear as required by the police.

33.  Section 113(1) of the Magistrates Ordinance Cap 227 (“MO”) provides that “any person aggrieved by any conviction, order or determination of a magistrate in respect of or in connection with any offence, who did not plead guilty or admit to the truth of the information or complaint, may appeal from the conviction, order, or determination, in manner hereinafter provided to a judge.” Section 114 provides that such appeal application must be made within 14 days of the conviction, order or determination. But section 114A also allows the extension of time if a Magistrate or a Judge is satisfied that there are good causes to do so.

34.  The Forfeiture Order – being a “conviction, order or determination” made by a Magistrate – is a decision to which the statutory appeal mechanism provided by section 113 applies.

35.  Indeed, the Applicant might have realised the availability of such statutory appeal mechanism by the time he filed his reply dated 5 June 2023. Among the documents he provided include a judgment dated 2 November 2006 made by DHCJ Barnes (as Barnes J then was) in HCMA 826/2006. There, in 2001, the applicant’s bail money was forfeited by a Magistrate upon the police’s application on the basis that the applicant had failed to report bail. In about 2006, the applicant applied to the High Court to overturn the forfeiture order on the basis that he was imprisoned in Shanghai during the period when he had failed to report bail in Hong Kong. Barnes J allowed him to appeal out of time and also allowed the appeal by overturning the Magistrate’s forfeiture order on the basis the failure to report bail was involuntary.

36.  Clearly the proper way for the Applicant to seek remedy is to appeal against the Forfeiture Order out of time under sections 113 and 114 of the MO. Judicial review is not available when there is an alternate avenue which is not yet exhausted.

E.  Result

37.  The application is dismissed with no order as to costs.