ASHER MODEL MANAGEMENT LTD v. THE COMMISSIONER OF POLICE

HCAL 111/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 111 OF 2008

----------------------

----------------------

----------------------

---------------------------------------------------------

R E A S O N S   F O R   D E C I S I O N

-------------------------------------------------------

1.  Asher has sued Carroll (a senior police inspector) in the District Court for misfeasance.  The action is ongoing.  Asher complains against the Commissioner’s repeated deployment of Carroll in police teams conducting licence checks on the Beijing Club in Wellington Street.  Asher manages the Beijing Club.  Asher asked the Commissioner not to deploy Carroll on such licence checks.  But by letter dated 18 September 2008 the Commissioner refused to do so.  The Commissioner stated that Carroll’s deployment was “an operational decision”.

2.  Asher now contends that, in light of its District Court case, the continued deployment of Carroll gives rise to a sense of bias or apparent bias on its part.  On this basis, Asher applies for leave to review the Commissioner’s refusal of 18 September 2008.

3.  I refused leave to apply for judicial review.

4.  I think that the Commissioner rightly classified the decision whether or not to deploy Carroll on a police team as purely an operational matter.  I do not think that such decision is susceptible to judicial review.  It is not for the Judiciary to micro-manage the police force and say who should or should not be deployed on any particular mission.

5.  In my view, the question of bias (whether real or apparent) does not enter into the picture.  In carrying out a licence check, the police are not exercising an adjudicative or quasi-adjudicative function.  They are simply investigating whether or not licence conditions have been breached.  They may harbour suspicions in respect of the party being investigated.  They may be carrying out routine checks to confirm such suspicions.  Accordingly, in the context of a licence check, I do not see how the question whether a given officer is or is not acting impartially (or appearing to act impartially) can be a relevant consideration.