SIU SEE KONG t/a SIU AND CO v. COMMISSIONER OF POLICE AND ANOTHER

HCAL 726/2022

[2022] HKCFI 3228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 726 of 2022

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant or counsel [            ] in open court;

1.  Leave to apply for judicial review is dismissed; and

2.  No order as to costs.

Observations for the Applicant:

1.  By Form 86 dated 5 August 2022, the Applicant:

(a)  names as the proposed respondents the Commissioner of Police and the Secretary for Justice;

(b)  seeks leave to apply for judicial review against the “Decision of the Proposed Respondents in not prosecuting a solicitor firm[1] for perverting the course of justice”;

(c)  seeks the relief of “A declaration that the Proposed Respondents are erroneous in law in not prosecuting the said solicitor firm for perverting the course of justice”;

(d)  states the ground on which relief is sought as being “The said Decision of the Proposed Respondents is contrary to the Hong Kong Basic Law, Article 33, which states: All Hong Kong residents shall be equal before the law”.

2.  Upon directions from this Court, the Applicant has served his application upon the Department of Justice. Mr Simon Kwong, Senior Public Prosecutor, on 5 September 2022 filed his submissions on behalf of the Putative Respondents. On 13 September 2022, this Court received the Applicant’s reply (the “Reply”).

3.  The facts as revealed by the Form 86 are as follows. In November 2018, a client of the Law Firm (the “Client”) published in several local newspapers an advertisement making certain descriptions about the Applicant. The Applicant regarded those descriptions as “criminal libel” and reported the matter to the police. Subsequently, the Client started an action against the Applicant for libel. In August 2020, the Applicant made a sanctioned offer to settle that claim. On 21 August 2020, the Law Firm counter-offered to settle but with, amongst others, the term, as cited in §2 of the Form 86, that “The Applicant shall withdraw the said complaint to the police”. The Applicant considered the term to be perverting the course of justice and reported the matter to the police. He was subsequently informed of the decision of the Department of Justice declining to prosecute. It is that decision which the Applicant is seeking to challenge.

4.  In his Reply, the Applicant says that he is not “applying for mandamus compelling them to prosecute”, but “is simply asking for a declaration as pleaded”, and “concedes that even if any declaration is made herein, the Putative Respondents are entitled not to prosecute the [Law Firm].”

5.  In Re Leung Lai Fun [2018] 1 HKLRD 523, the Court of Appeal observed at §§10 and 12 as follows:

“10. Article 63 of the Basic Law provides that ‘The Department of Justice shall control criminal prosecutions, free from any interference’. As Hartmann J had pointed out in RV v The Director of Immigration (2008) 4 HKLRD 529, this provision includes the protection of the independence of the Department of Justice’s control of criminal prosecutions from judicial encroachment. It is only if the case belongs to those extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned. Otherwise the Court should not encroach on the right of the Department of Justice to control prosecutions. This is the major premise which is founded on principle.

…

12. In the present case, the documents and evidence submitted by Ms Leung did not show that the DPP had acted in obedience to political instruction when making the decision, or in bad faith. According to the legal principle discussed above, the Court should not grant her application.”

6.  In the present case, the documents and evidence submitted by the Applicant do not show that the Director of Public Prosecutions has acted in obedience to political instruction when making the decision, or in bad faith. This case is far from one of those extremely rare situations in which the Court will have jurisdiction to review the decision concerned.

7.  The Applicant in the Form 86 relies as his ground Article 33 of the Basic Law. That Article concerns the freedom of choice of occupation, which has nothing to do with the present application. The words cited by the Applicant belong to those of Article 25, which equally have no bearing upon this application.

8.  The Applicant avers at §4 of the Form 86 that the “[Prosecution] Code should be void and not have any effect if contrary to public interest or any law, which the Applicant avers to be the case.”

9.  No particular and basis have been provided as to which part of the Prosecution Code the Applicant avers are contrary to what public interest or what law. Such vague and un-particularized challenge is bound to fail.

10.  The Applicant’s intended application for the Declaration pleaded is not reasonably arguable. His application for leave is dismissed.

11.  Mr Kwong seeks costs. I have considered Leung Kwok Hung v President of the Legislative Council (No.2) (2014) 17 HKCFAR 841. The Applicant has not sought any oral hearing. It is this Court which invites submissions from the Department of Justice. Mr Kwong has filed his submissions which are of assistance. Whilst marginal, I am of the view that this case remains, albeit barely, within the parameters of those in which a citizen should “be able to seek relief without fear, if permission was refused, of being saddled with the respondent’s costs” at the stage of seeking leave. This Court’s grateful to Mr Kwong for his assistance. I make no order as to costs.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1