LAU DIK SANG v. COMMISSIONER OF CUSTOMS AND EXCISE AND ANOTHER

CACV 36/2026, [2026] HKCA 306

On Appeal From [2025] HKCFI 6382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 36 OF 2026

(ON APPEAL FROM HCAL NO 2770 OF 2025)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicant’s appeal against the order of Coleman J dated 31 December 2025 dismissing the Applicant’s application for leave to apply for judicial review by a Form 86 filed on 15 December 2025.

2.  The Applicant has consented to this appeal being disposed of on paper without an oral hearing. The Applicant has also filed a document titled “Grounds of Urgency” dated 29 January 2026. In view of the fact that the Applicant is acting in person, the “Grounds of Urgency” is treated as the Applicant’s certificate of urgency in respect of his appeal. Having considered the materials before the Court, we are of the view that it is appropriate to determine the present appeal on paper, and proceed to do so on an expedited basis, with the Applicant’s grounds contained in his Notice of Appeal dated 14 January 2026 being treated as his written submissions in support of his appeal. The Applicant has, in addition, filed a document titled “Further Submissions” dated 13 February 2026, and some further submissions dated 24 February 2026. We have taken into account these additional submissions from the Applicant in our consideration of his appeal.

BASIC FACTS

3.  For the purpose of disposing of the present appeal, the relevant background facts can briefly be stated as follows.

4.  On 31 January 2024, the Applicant attended a seminar (“Seminar”) on finance, stock and property investment held by the Hong Kong Small and Medium Owners Association. According to the Applicant, at the end of the Seminar, one Mr Lui promoted his Premium Membership Services (“Membership”) to the attendees, including the Applicant. The Applicant decided to join the Membership, and paid the membership fees of HK$139,800. He later found out, however, that the representations made by Mr Lui at the Seminar were false or incorrect, in that:

(1)  The mode of membership fees payment was by 12 instalments (instead of 60), and 30% handling fees (ie HK$41,940) would be charged on request for refund.

(2)  Mr Lui claimed that anyone joining the Membership would be given his WhatsApp number for asking him any question relating to stock, property or anything he is familiar with, and he would answer them as soon as possible. However, from February to August 2024, Mr Lui did not reply to any questions asked by the Applicant.

5.  On 16 September 2024, the Applicant made a complaint of unfair trade practices against Mr Lui to the Customs and Excise Department (“C&ED”).

6.  Thereafter, C&ED investigated the Applicant’s complaint. In about February 2025, C&ED submitted the information provided by the Applicant and the results of its investigation to the Department of Justice (“DOJ”) for legal advice.

7.  By an email dated 12 September 2025, C&ED informed the Applicant that DOJ had made a decision not to commence prosecution of Mr Lui (“the Prosecutorial Decision”), and thus it would cease further investigation of the Applicant’s complaint. C&ED also informed the Applicant that, by virtue of s 17(2) of the Trade Descriptions Ordinance, Cap 362 (“the Ordinance”), it would not disclose to the Applicant any information obtained in the course of its investigation pursuant to the Ordinance, including the factors that it had taken into consideration for concluding its investigation of the Applicant’s complaint.

8.  The Applicant was not satisfied with the Prosecutorial Decision. On 16 September 2025, the Applicant wrote to C&ED requesting for information relating to the investigation, including the names and positions of those officers who had taken part or given advice in the investigation as well as other information that C&ED had obtained in the course of its investigation (“the Requested Information”).

9.  By a letter from the Complaints Investigation Group of C&ED to the Applicant dated 5 February 2026, C&ED maintained its decision not to provide the Requested Information in reliance upon s 17(2) of the Ordinance (“the Non-Disclosure Decision”).

10.  On 15 December 2025, the Applicant filed a Form 86 seeking leave to apply for judicial review. In the Form 86:

(1)  the Commissioner of Customs and Excise (“the Commissioner”) and the Secretary for Justice were named as the proposed respondents; and

(2)  the following was identified as being the “Judgment, order, decision or other proceedings in respect of which relief is sought” –

“1). Order of Disclosure

2). Judicial Review of DoJ’s decision

3). Amendment of Trade Descriptions Ordinance”.

11.  The Applicant failed, however, to set out in the Form 86 the relief sought or the grounds on which it was sought, contrary to Order 53, rule 3(2)(a)(iii) of the Rules of the High Court, Cap 4A (“the RHC”).

THE JUDGMENT

12.  The Judge dealt with the application for leave to apply for judicial review on paper. By a written decision dated 31 December 2025 (“the Decision”), the Judge refused to grant leave to apply for judicial review. His reasons are set out at §§11 to 16 of the Decision, as follows:

“[11] With respect, the application has no merit.

[12] First, is trite that an applicant for leave to apply for judicial review must identify on the Form 86 the public law grounds which the applicant says are of sufficient merit for the grant of leave. It is not for the Court to try to identify grounds for an applicant. However, I think the Form 86 has failed to identify any proper reasonably arguable public law grounds of review, on which relief is sought. Merely identifying that there was alleged non-disclosure of investigation materials and information by a law enforcement agency, unsatisfactory prosecutorial decision and the suggested necessity to amend the TDO does not identify any public law error. This is a breach of the mandatory requirements in Order 53 rule 3 of the Rules of the High Court.

[13] Nothing in the materials filed by the Applicant identifies any arguable public law wrong committed by the Commissioner and/or the DoJ. This alone is fatal to the application.

[14] Secondly, it is indeed rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, prosecutorial decisions made by the DoJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. Nothing in the materials filed by the Applicant puts forward any alleged ground of unconstitutionality.

[15] Thirdly, as can been seen from the materials filed, any complaint by the Applicant as to the alleged misinterpretation of section 17(2) of the TDO by the C&ED is untenable.

[16] Fourthly, regarding the Applicant’s assertion that the TDO is outdated and the victim’s right in respect of disclosure of information should be added to the TDO, any proposal for and the subsequent amendment to the TDO is a matter for the Administration and the Legislative Council. It is not a matter for the Court exercising its judicial review jurisdiction.”

THE APPEAL

13.  Dissatisfied with the Decision, the Applicant filed a Notice of Appeal dated 14 January 2026. Attached to the Notice of Appeal is a 5-page document, in which the Applicant raises 3 grounds of appeal, which may be summarized as follows:

(1)  DOJ’s Prosecutorial Decision is unjust and unreasonable (“Ground 1”);

(2)  C&ED’s reliance on s 17(2) of the Ordinance to refuse to provide the Requested Information is a “misinterpretation” of the Ordinance (“Ground 2”); and

(3)  the Ordinance is outdated, and the rights of victims of unfair trade practices “should be clearly included in it to avoid [C&ED] staff using this as a loophole and (intentionally) misinterpret section 17(2) for their benefits, and refuse to disclose any thing to the victim” (“Ground 3”).

DISCUSSION

14.  By way of preliminary observation, it is clear that the Applicant has failed to set out in the Form 86 the relief sought or the grounds on which it is sought, as required by Order 53, rule 3(2)(a)(iii) of the RHC. It has repeatedly been emphasized by the courts that the requirements of Order 53, rule 3(2)(a)(iii) are mandatory. The Applicant has not addressed this ground of decision by the Judge. On this ground alone, the Judge was entitled to refuse to grant leave to apply for judicial review.

15.  The 3 substantive grounds of appeal raised by the Applicant can be disposed of shortly.

16.  Under Ground 1, the Applicant complains that the Prosecutorial Decision is unjust and unreasonable. He relies on another “false trade description” case relating to renovation services where a person was fined HK$3,000 and given a prison sentence of 8 months, and argues that his case is more serious (see page 3 of the document attached to the Notice of Appeal). He alleges that DOJ seems to have applied “double standard”, acting in contravention of Article 25 of the Basic Law (“All Hong Kong residents shall be equal before the law”) and according favoritism to Mr Lui. He also alleges that the Judge’s decision is Wednesbury unreasonable.

17.  This ground has no merit. As rightly held by the Judge, it is well established that prosecutorial decisions made by DOJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality (see RV v The Director of Immigration [2008] 4 HKLRD 529, at §§66-76 per Hartmann J (as he then was); Re Leung Lai Fun [2018] 1 HKLRD 523, at §10 (CA); and Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, at §§34-35 per Alex Lee J).

18.  It is nothing to the point to say that the Prosecutorial Decision is unjust or unreasonable. For the avoidance of doubt, we should make it clear that we make no finding on whether the Prosecutorial Decision is just or unjust, or reasonable or unreasonable, since we do not have information on the basis on which DOJ came to that decision. What is clear is that the Applicant has failed to produce any materials which come close to establishing a case that the Prosecutorial Decision is unconstitutional. The mere fact that in another case, the full facts of which are not before this Court, a person has been prosecuted for and found guilty of the offence of “false trade description” is plainly no basis for saying that the Secretary for Justice has acted outside his constitutional limits in making the Prosecutorial Decision in the present case. The complaint that the Judge’s decision is Wednesbury unreasonable is completely misconceived. The principle of Wednesbury unreasonableness, being one of the established grounds of judicial review, has no application to a judgment of the Court of First Instance. Further, the Judge’s view that “prosecutorial decisions made by the DoJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality” is correct as a matter of law.

19.  Under Ground 2, the Applicant challenges C&ED’s reliance on s 17(2) of the Ordinance, arguing that “[t]he legislative intent of Section 17(2) of Trade Descriptions Ordinance prohibits disclosure of information to anyone irrelevant to the case, but parties concerned are allowed to get the information”. The Applicant argues that C&ED’s refusal to provide the Requested Information is contrary to or inconsistent with “The Victims of Crime Charter (2007, DOJ)”, “Treatment of Victims and Witnesses (2009, DOJ)”, and/or “Civil Service Code of HKSAR”. The Applicant also argues that “Customs staff’s refusal to disclose information and no reason given for DOJ’s dismissal of the case” is procedural impropriety, and contrary to the principle that administrative authorities should give reasons for their decisions, as held, allegedly, in Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority (1997-98) 1 HKCFAR 279.

20.  Section 17 of the Ordinance, so far as relevant, states as follows:

“Offences of obstruction and disclosure of information

…

(2) Subject to subsection (2A), any person who discloses to any other person -

(a) …

(b) any information obtained by him in pursuance of this Ordinance,

commits an offence unless the disclosure was made -

(i) in or for the purpose of the performance by him or any other person of functions under this Ordinance; or

(ii) in the case of paragraph (b) under the direction or order of a court.

(2A) A person does not commit an offence under subsection (2) by –

(a) disclosing information under section 16C(1) or (2) or under an order of the Court of First Instance made under section 16C(3);

(b) disclosing information under section 16D; or

(c) disclosing information under section 30F(1) or under an order of the Court of First Instance made under section 30F(2).”

21.  It is clear from s 17(2) that the prohibition against disclosure of information obtained by C&ED in pursuance of the Ordinance is applicable regardless of whether the person to whom disclosure is made or proposed to be made is a “party” or “non-party”, or “victim” or “non-victim”. Disclosure of such information is not exempted by the two exceptions mentioned in ss (2)(i) and (ii). Insofar as the statutory exemptions or defences under ss (2A)(a) to (c) are concerned:

(1)  Section 16C(1) relates to the situation where goods seized or detained under s 15 are, or are reasonably suspected by the Commissioner to be, goods to which a forged trade mark is applied, or to which a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied. In such a case, the Commissioner shall, wherever reasonably practicable, notify the owner of the trade mark or his authorized agent of the seizure or detention, as the case may be. Section 16C(2) sets out the type of information which may be disclosed by the Commissioner to the owner of the trade mark or to his authorized agent under ss 16C(1).

(2)  Section 16D provides that the Commissioner may, for the purpose of promoting international co-operation in the protection of intellectual property rights, disclose information obtained in pursuance of the Ordinance to the customs authorities of any “Convention country” (as defined in s 2(1) of the Ordinance).

(3)  Section 30F(1) provides that where goods are seized or detained pursuant to a detention order, the Commissioner may disclose to the owner of the trade mark specific information as set out in ss (a) to (d) thereof.

It is clear that none of the above statutory exemptions or defences has any relevance or application to the Applicant’s case.

22.  In our view, C&ED was entitled, and correct, to refuse to provide the Requested Information to the Applicant pursuant to s 17(2) of the Ordinance. The Applicant has not produced the documents relied on by him and referred to at §19 above, or identified the relevant provisions in those documents. He has failed to demonstrate the relevance or applicability of those documents to his case. In any event, those administrative documents, even if relevant or applicable, cannot override the statutory basis on which C&ED made the Non-Disclosure Decision.

23.  We also fail to see how it can be said that C&ED has failed to give reason for the Non-Disclosure Decision. Its express reliance on s 17(2) of the Ordinance as the reason for refusing to disclose the Requested Information is sufficient in the circumstances of this case. On the other hand, insofar as the Applicant’s complaint is against DOJ for not giving any reason for its decision not to prosecute Mr Lui, it is generally a matter for DOJ to decide whether to give reason for a prosecutorial decision, taking into account issues of fairness to the complainant and/or the accused. Anyhow, the relevant subject matter of the present judicial review is DOJ’s decision not to prosecute Mr Lui, not its failure to give reason for the Prosecutorial Decision.

24.  In respect of Ground 3, the Applicant argues that s 17(2) of the Ordinance is outdated and may be mis-used by C&ED staff “to shirk their investigative duties and shrink from their responsibility of omission and malpractice”. The Applicant says that the rights of victims of unfair trade practices should be protected, and the Ordinance ought to be “revised for the sake of public interest”. This ground is plainly unarguable. As correctly pointed out by the Judge, it is the function or responsibility of the Executive/Legislative branches of the Government to make or amend laws. The court has no power to review primary legislation save in very limited circumstances such as where the legislation is inconsistent with the provisions of the Basic Laws. It is simply no part of the court’s function to update or revise the Ordinance as suggested by the Applicant. In passing, we should mention that we see no evidence of C&ED staff failing in their exercise of powers or duties under the Ordinance in this case.

25.  In all, none of the Applicant’s grounds of appeal has merit.

DISPOSITION

26.  The Applicant’s appeal is dismissed. In relation to the issue of costs, neither Putative Respondent has taken any active step in this appeal, save that DOJ has, by a letter dated 16 February 2026, made some submissions to the Court concerning the Applicant’s “Grounds of Urgency”. In all the circumstances, we make no order as to the costs of the appeal.