MA PUI TUNG v. DEPARTMENT OF JUSTICE

CACV 64/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 64 OF 2008

(ON APPEAL FROM HCAL NO. 15 OF 2008)

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J U D G M E N T

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Hon Rogers VP:

1.  This was an appeal from a judgment of Saunders J given on 25 February 2008.  The matter before the judge was an application for leave to bring judicial review proceedings.  The appellant’s application had been supported by a 76 page statement setting out the grounds upon which he relied.  There were 2 affidavits, which the judge described as extensive, to which there were 36 exhibits.  The judge called for an oral hearing and the applicant provided a 28 page written submission.  At the conclusion of the hearing of the judge refused leave to bring judicial review proceedings.

2.  The appellant appeals against that decision and, at the conclusion of the hearing, this court indicated that it would give its decision in writing.

Background

3.  This matter has a long history.  It goes back to an occasion when the appellant’s firm acted on behalf of a litigant, namely Mr Koo.  Mr Koo had been introduced to the appellant’s firm by a clerk, Mr Wong Yin Tak.  Some of the history of this matter can be seen in the judgment of this court in CACV 221 of 2003 handed down on 11 November 2003.  Those proceedings were an appeal from a decision of the Solicitors Disciplinary Tribunal which followed a complaint by Mr Koo.  The Tribunal reached the conclusion that the appellant had been guilty of a number of disciplinary offences which included failure to provide his client with a written record of fees and his failure to deliver a bill of costs to Mr Koo within a reasonable time of the conclusion of the matter, failure to keep his client properly informed of the true nature of a notice to act in person which Mr Koo had been asked by the appellant to sign, and failure to arrange for the attendance of a responsible representative throughout the proceedings, instead instructing Mr Wong to attend.

4.  It has been the appellant’s strongly submitted view that Mr Koo and Mr Wong had been guilty of giving false evidence against him.  For that reason the appellant had made application to the Secretary of Justice through the Department of Justice to have Mr Koo prosecuted for perjury.  The appellant had made submissions to the Department of Justice on more than one occasion and his application for leave to appeal to the Court of Final Appeal from the decision of this court in CACV 221 of 2003 was deferred so that further submissions could be made.  That process took a number of years.  The decision was taken on behalf of the Secretary for Justice that there would be no prosecution of Mr Koo and despite renewed application that decision was adhered to.

5.  At one stage, the appellant brought separate proceedings against the Solicitors Disciplinary Tribunal but those proceedings were compromised with a consent order that involved the appellant paying costs.  The appellant did not pay those costs.  As a result bankruptcy proceedings were instituted.  As part of those proceedings the appellant was required to file what was termed an annual return.  He failed to do so and a prosecution has been commenced against him on the basis of his failure to do so.

The application for judicial review

6.  The appellant sought judicial review in respect of the following decisions:

“1.    The Respondent’s decision is made on 12.10.2007 & 21.11.2007 and confirmed on 18.1.2008 not to prosecute one Koo Hong Pang, formerly named Koo Koon Yan (“Koo”) for any criminal offences on the purported ground of insufficient evidence.

2. The Respondent’s refusal and/or deliberate failure to control and stop the Official Receiver from prosecuting the Applicant for an offence under the illegal Bankruptcy Order No. 19884 of 2003 [ESS 21077 of 2007]

3. The Respondent’s refusal to give reasons and/or sufficient reasons for his decision not to prosecute Koo for any criminal offence but to allow the Official Receiver to prosecute the Applicant for refusal to submit to the illegal Bankruptcy Order.”

The judgment below

7.  The judge considered that on the basis of the decision of this court in Keung Siu Wah v Attorney General [1990] 2 HKLR 238 it was not open to review a decision of the Director of Public Prosecutions not to prosecute.  In doing so the judge also had regard to the more recent decision of this court in Kwan Sun Chu Pearl v Department of Justice [2006] 3 HKC 207.  However, the judge also went on to say that he considered that there was nothing at all in the papers which indicated any basis upon which it may be said that it could be reasonably argued either that the Director did not correctly understand the law or that the decision was irrational in the sense of being Wednesbury unreasonable or that there had been a failure to act with procedural fairness.

8.  In respect of the decision not to prevent the Official Receiver from prosecuting the appellant, the judge considered likewise that there was simply no merit in any argument put forward by the appellant.

This appeal

9.  As was pointed out in Kwan Pearl Sun Chu, the statement of the court in the case of Keung Siu Wah v Attorney General for example at page 255-6 that:

“…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.”

requires qualification.

10.  It is, no doubt, in extremely rare cases and only where the evidence points unquestionably to the desirability of there being a prosecution that a court should interfere with a decision of the prosecuting authority not to prosecute.  There are instances where an application for judicial review in respect of a refusal to prosecute has been allowed.  I would draw attention for example to R v Director of Public Prosecutions, ex parte C. [1995] 1 Cr.App.R. 136 and the note contained at pages 858-861 of the Criminal Law Review 2000 in respect of the case of R v Director of Public Prosecutions, ex parte Jones.  It must be emphasised, however, that those were cases where the facts spoke for themselves.  It is, perhaps, all the more important that a court should exercise extreme caution if consideration is given to questioning a decision not to prosecute because Article 63 of the Basic Law provides:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”

11.  On this appeal the appellant drew attention to various aspects of the evidence at the hearing before the Solicitors Disciplinary Tribunal and related documents.  Further submissions were made after the conclusion of the hearing.  None of the matters that were drawn to this court’s attention, in my view, amounts to anything which comes anywhere near a ground upon which a court could question the decision not to prosecute Mr Koo.

12.  Although the availability of alternative remedies is no longer considered an absolute bar to the grant of judicial review, where an alternative remedy exists the court should be slow and circumspect in permitting an application for judicial review to proceed.  It would appear that the theoretical possibility of a private prosecution may exist, although it has to be said that in the present case it is most unlikely that any private prosecution for perjury would be allowed to proceed.

13.  As regards the prosecution brought at the instigation of the Official Receiver based on the failure of the appellant to file an annual return, as the judge indicated, there is simply no basis for considering it is anything other than proper.

14.  In those circumstances, this appeal must be dismissed.

Hon Le Pichon JA:

15.  I agree with the judgment of Rogers VP.