A v. SECRETARY FOR JUSTICE AND ANOTHER

HCAL 176/2018

[2020] HKCFI 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 176 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is an application for judicial review of the refusal of the Department of Justice (on behalf of the Government) to grant compensation to the Applicant under (i) Article 11(5) of the Hong Kong Bill of Rights (“HKBOR”), and (ii) the Government’s administrative ex gratia scheme (“the Ex Gratia Scheme”) for a wrongful conviction resulting allegedly from serious default by the police or other public authority.

THE APPLICANT’S CONVICTION

2.  On 21 October 2013, the Applicant was convicted of the offence of conspiracy to commit robbery after a jury trial in the Court of First Instance (HCCC 468/2012).  He was sentenced to 8.5 years of imprisonment by the trial judge.

3.  The prosecution evidence and the Applicant’s defence were summarized in the judgment of the Court of Appeal in CACC 400/2013 (“the CA Judgment”), reported as [2016] 5 HKLRD 406, which I shall gratefully adopt for the present purpose:

“1) Prosecution evidence

[5] The charge alleged that the applicant conspired with [X] to commit the offence of robbery between 1 March 2011 and 14 July 2011.

[6] The prosecution relied on 4 prosecution witnesses, who were robbed by a male respectively on 16 May, 13 June, 13 July and 14 July 2011 inside a lift of a building while on their way back to the office after withdrawing money from the bank.

[7] PW1 and PW2 said that they were robbed of $20,000 on 16 May 2011 and 13 June 2011 respectively. PW3 said that she was robbed of $2,000 on 13 July 2011. PW5 said that she was robbed on 14 July 2011, but the robber was unable to rob her of any money.

[8] In the present case, the prosecution also relied on PW4, that is, the [X] as alleged in the charge, to give evidence against the applicant.

[9] [X] was previously arrested by the police on 11 August 2011 and pleaded guilty to 3 counts of robbery in the High Court in June 2012, that is, the offences in relation to the robbing of PW1, PW2 and PW3. The prosecution agreed that the charge against [X] in respect of the robbery which took place on 14 July 2011 be dismissed.

[10] On 2 August 2012 [X] indicated to the police that he was willing to be a witness for the prosecution to testify against the applicant for conspiring with him to commit the 4 robberies. As [X] agreed to give evidence in the present case, the Secretary for Justice granted him immunity from prosecution as regards the robbery that took place on 14 July 2011.

[11] In the present case, [X] testified that he had plotted with the applicant to rob bank customers who withdrew money from the bank. Their arrangement was to have the applicant entered the bank first, and he would call [X] after he spotted a suitable money withdrawer. [X] would then follow these persons to their office, and rob them with a knife inside a lift. [X] admitted that, on 16 May 2011, he and the applicant had split the $20,000 obtained from the robbery he committed. He also stated that he and the applicant had split the money obtained from the robbery on 13 June 2011. [X] stated that no money could be obtained from the robberies on 13 and 14 July 2011. He stated that the four robberies were proposed by the applicant. [X] said that he had two previous robbery convictions. He knew how to commit a robbery and did not require the applicant to teach him what to do.

[12] PW7 was a police officer. He admitted that the applicant was his informer. Between July and August 2011, the applicant had provided information concerning some robberies involving [X], but the applicant did not specify the cases to which the information related. After PW7 received the information, he reported the same to his superior officer. PW7 denied that the applicant had tipped him off before each of the four aforesaid cases took place. He also denied that the applicant had contacted him during the course of these four cases.

2) The applicant’s defence

[13] On 24 August 2011 the applicant was arrested in connection with the offences of robbery, and the police allowed him bail on his own recognizance of $500. This went on until 15 March 2012 when the applicant was discharged unconditionally, and not subjected to any bail conditions.

[14] On 17 October 2012 the police re-arrested the applicant.

[15]    The applicant gave evidence in his defence.  The applicant stated that [X] had invited him to commit robbery together, but he refused.  The applicant knew a person named ‘Ah Fai’, who told him that [X] would commit robbery.  The applicant said that he and ‘Ah Fai’ entered into agreement to inform the police of [X]’s actions in return for remuneration.  The applicant said that he had contacted PW7 prior to and during the course of these 4 robberies and provided him with information on [X]’s actions.  PW7 instructed the applicant to look further into the matter, and to find out who [X]’s partner in crime was.  The applicant said that, in those 4 incidents, he did show up in the banks concerned, but he was there merely to look further into the matter and to comply with PW7’s instructions, in order to find out who [X]’s partner was.  He had absolutely no intention to commit any offence, nor was he there to look for targets to rob.”

THE APPLICANT’S SUCCESSFUL APPEAL

4.  On 28 November 2013, X sought leave to appeal against his sentence of 6 years’ imprisonment out of time.  His grounds were that, after he had been sentenced, he provided to the police particulars of his accomplice, namely, the Applicant, in three robberies in which he was involved, and that enabled the police to successfully arrest the Applicant.  He also acted as a prosecution witness to testify against the Applicant, and that resulted in the successful prosecution of the Applicant.  The Court of Appeal allowed X’s appeal and reduced his original sentence of 6 years’ imprisonment to one of 5 years.

5.  The Applicant also appealed against his conviction, contending that the prosecution had failed to disclose to him relevant materials (“the Telephone Records”) which cast serious doubts on the credibility X, being the main prosecution witness in his criminal trial, and the non-disclosure constituted a material irregularity in the trial.  The relevance of the Telephone Records, as well as the circumstances in which the non-disclosure came about, were described in §§18-21 of the CA Judgment, as follows:

“[18] … The applicant’s lawyers successfully obtained from the Department of Justice [X]’s telephone communication records covering the material times of the offences. However, the prosecution did not disclose these records to the applicant or his legal representative prior to the trial in the present case.

[19] [X]’s evidence was that, having found a robbery target in the bank, the applicant would call [X] to inform him of the target person’s features, and let [X] carry out the robbery. However, by referring to [X]’s telephone communication records obtained from the police, it can be seen that in the three robberies that took place on 13 June, 13 July and 14 July 2011, contrary to what [X] had claimed, the applicant actually did not have any telephone contact with [X] during the time he remained in the bank or even before the robbery took place.

[20] Mr Eric Cheung, solicitor representing the applicant, submitted that [X] clearly had the motive to frame the applicant. [X] once said in his evidence that it was his own speculation that the applicant provided information to the police to accuse him of committing the relevant robberies. Many of the key issues referred to in [X]’s oral testimony in court were self-contradictory, and there were repeated substantial inconsistencies between them and those in the version he stated to the police before the trial. When [X] was cross-examined on the inconsistencies between his evidence and his previous statements, he frequently exhibited an utterly unreasonable attitude, failed to provide logical explanations, and repeatedly admitted [to] lying to the police earlier. The relevant phone records were obviously in direct contradiction to what [X] said in his evidence, showing that he made up the facts to frame the applicant. The prosecution did have the duty to provide the relevant material to the defence. However, the prosecution did not do so, and up to the current moment, they had not explained why they did not do so.

[21]    Ms Anna Lai, counsel for the respondent, explained to us about the handling of the telephone communication material in the present case.  The police had requested for and obtained from the telecommunications company the telephone records of [X] and the applicant from June to July 2011 (the telecommunications company no longer retained the communication records for the month of May).  These records were saved in the office computer of an inspector formerly in charge of the case.  The police had sought legal advice from the Department of Justice in October 2011.  Both the documentary file and the accompanying comprehensive report submitted did not mention the investigation on the mobile phones of [X] and the applicant, nor the call records obtained.  In August 2012, when another inspector formerly in charge of the case sought legal advice from the Department of Justice, he prepared another comprehensive report dated 16 August 2012, which stated inter alia that due to the lapse of time, the call records of [X] and the applicant could not be obtained.  Having received enquiries from the solicitors firm concerning the phone records, the inspector currently in charge of the case looked up the documentary file of this case, and confirmed that it contained no printed copy of any telephone call records.  Subsequently, this inspector checked the office computer, and found from it the telephone call records provided by the telecommunications company earlier.  The police subsequently handed over a printed copy of the relevant telephone records to the solicitors firm.”

6.  The Applicant’s appeal was heard on 19 August 2015.  The Court of Appeal considered that the evidence of the 4 victims in the robberies could not directly link the Applicant to the offences, and the only evidence that could do so came from X, who was however a tainted witness, and his evidence must therefore be evaluated with care and prudence.  The Court of Appeal further considered that the Telephone Records “would substantively and materially affect the jury’s evaluation of whether [X]’s testimony was credible”, and that “[i]f the jury had access to such independent and objective material during the trial, it is very likely that they would not have accepted [X]’s evidence”.  The Court of Appeal concluded that the prosecution failed to discharge their duty to disclose relevant materials, such non-disclosure had deprived the jury of a full grasp of the facts necessary for arriving at the correct verdict, and the conviction was unsafe.  Accordingly, the Court of Appeal allowed the Applicant’s appeal and quashed his conviction (see §§25 and 28 of the CA Judgment).

THE APPLICANT’S CLAIM FOR COMPENSATION

7.  The Applicant had been remanded in custody since his arrest until he was granted bail by the Court of Appeal on 14 July 2015.  By that time, he had been remanded in custody for a period of about 33 months.

8.  On 10 February 2017, ONC on behalf of the Applicant wrote to the Department of Justice (“the DoJ”) seeking compensation under HKBOR 11(5).  On 17 March 2017, ONC further wrote to the DoJ seeking, on behalf of the Applicant, compensation under the Ex Gratia Scheme.

9.  On 7 November 2017, the DoJ wrote to ONC stating that the Applicant’s applications for compensation had been re-directed to, and considered by, the Deputy Solicitor General (Policy Affairs) (“the Deputy SG”)[1], and the applications had been rejected.  The following brief reasons were given for the rejection of the applications:

“It is important to note that ex gratia payments are only made in exceptional cases, and there is no general entitlement to recompense for wrongful conviction or charge. For example, compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge. Compensation may also be refused where there is serious doubt about the claimant’s innocence.

In determining whether or not the application submitted by you on behalf of the Applicant falls within the Guidelines, the grounds put forward by you on behalf of the Applicant, other information in relation to his case (including, in particular, the CCTV footages, the entire call records of the key Prosecution witness disclosed as unused materials, the cautioned statements of the Applicant, and the reasons for judgment given by the Court of Appeal dated 16 September 2015) have been considered in detail. Noting further and in particular that there was serious doubt about the Applicant’s innocence, the Deputy Solicitor General (Policy Affairs) was not satisfied that the application for compensation should succeed on the merits.

You are hereby informed that the application for compensation has been rejected.”

10.  On 27 December 2017, ONC wrote to the DoJ to seek clarification on whether the Applicant’s applications under both HKBOR 11(5) and the Ex Gratia Scheme had been rejected.  On 10 January 2018, the DoJ confirmed that was the position.  In what follows, the Deputy SG’s decision to reject the Applicant’s claim for compensation under HKBOR 11(5) shall be referred to as “the 1^st Decision”, and his decision to reject the Applicant’s claim for compensation under the Ex Gratia Scheme shall be referred to as “the 2^nd Decision”.

APPLICATION FOR JUDICIAL REVIEW

11.  On 6 February 2018, the Applicant made the present application for leave to apply for judicial review.  The following grounds of judicial review are advanced:

(1)     Ground 1: since all the conditions in HKBOR 11(5) are satisfied in the Applicant’s case, the Government has a mandatory duty to compensate him (§55 of the Form 86).

(2)     Ground 2: the refusal to compensate the Applicant on the ground that “there was serious doubt about the Applicant’s innocence” -

(a)     was unlawful;

(b)     was based on an error of law;

(c)     was based on an error of fact;

(d)     resulted from the taking into account of irrelevant considerations;

(e)     resulted from a failure to take into account relevant considerations; and/or

(f)     was Wednesbury unreasonable (§56 of the Form 86).

(3)     Ground 3: further or alternatively, the DoJ failed to give clear and sufficient reasons for refusing to compensate the Applicant, and it was entirely unexplained how there could be “serious doubt about the Applicant’s innocence” (§57 of the Form 86).

12.  On 8 February 2018, this court granted the Applicant leave to apply for judicial review.

APPLICANT’S CHALLENGE TO THE 1^ST DECISION

13.  HKBOR 11(5) states as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

14.  Four conditions must be satisfied before a person is entitled to claim compensation under HKBOR 11(5), namely:

(1)     he has by a final decision been convicted of a criminal offence;

(2)     his conviction has been reversed or he has been pardoned;

(3)     on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice; and

(4)     he has suffered punishment as a result of such conviction.

In addition, compensation is not payable if the non-disclosure of the unknown fact in time is wholly or partly attributable to the convicted person.

15.  The first condition which the Applicant has to satisfy in order to entitle him to compensation under HKBOR 11(5) is that he has been convicted of a criminal offence by a “final decision”.  For the purpose of Article 14(6) of the International Covenant on Civil and Political Rights (“ICCPR 14(6)”), the equivalent of HKBOR 11(5), it is the consistent view of the Human Rights Committee (“the HRC”) that a person cannot be regarded as having been convicted by a “final decision” if his conviction has been reversed or quashed on appeal in the ordinary course of the domestic appellate process.

16.  At §53 of General Comment No 32 on ICCPR 14 dated 23 August 2007, the HRC states the following:

“This guarantee does not apply if it is proved that the non-disclosure of such a material fact in good time is wholly or partly attributable to the accused; in such cases, the burden of proof rests on the State. Furthermore, no compensation is due if the conviction is set aside upon appeal, i.e. before the judgment becomes final, or by a pardon that is humanitarian or discretionary in nature, or motivated by considerations of equity, not implying that there has been a miscarriage of justice.” [underlining added]

17.  Two decisions of the HRC were cited in support of the above underlined proposition, namely, Irving v Australia (Communication No 880/1999, 15 April 2002), and Wilson v The Philippines (Communication No 868/1999, 11 November 2003).

18.  In Irving, the claimant was convicted of the offence of armed robbery on 8 December 1993 by a jury sitting in the District Court of Cairns, and sentenced to a term of imprisonment of 8 years. His appeal to the Queensland Court of Appeal was dismissed on 20 April 1994.  His application for legal aid to pursue an appeal to the High Court of Australia was repeatedly refused.  He then acted in person.  On 8 December 1997, the High Court of Australia granted him special leave to appeal, allowed the appeal on the ground that the original trial had been unfair, quashed his conviction and ordered a retrial.  Eventually, the Director of Public Prosecutions of Queensland decided that the claimant would not be retried, and entered a nolle prosequi.  The claimant then sought ex gratia compensation from the Queensland Attorney General for a miscarriage of justice occasioned by his wrongful imprisonment that had lasted for over four and a half years, but no compensation was paid.  On 5 October 1999, he submitted a communication to the HRC claiming to be a victim of a violation by Australia of ICCPR 14(6). Holding that the communication was not admissible, the HRC said, at §8.4 of its decision, that:

“As the decision of the Court of Appeal of Queensland was subject to appeal (albeit with leave) on the basis of the normal grounds of appeal, it would appear that until the decision of the High Court of Australia, the author’s conviction may not have constituted a ‘final decision’ within the meaning of article 14, paragraph 6. However, even if the decision of the Court of Appeal of Queensland were deemed to constitute the ‘final decision’ for the purposes of article 14, paragraph 6, the author’s appeal to the High Court of Australia was accepted on the grounds that the original trial had been unfair and not that a new, or newly discovered fact, showed conclusively that there had been a miscarriage of justice. In these circumstances, the Committee considers that article 14, paragraph 6, does not apply in the present case, and this claim is inadmissible ratione materiae under article 3 of the Optional Protocol.”[2]

19.  It can be seen that two grounds were given for the HRC’s decision that the claimant’s communication was inadmissible, the first of which was that the decision of the Queensland Court of Appeal could not be regarded as a “final decision” because it was still subject to appeal (albeit with leave) on the basis of normal grounds of appeal.

20.  In Wilson, the claimant, a British national resident in the Philippines at the material time, was convicted of the offence of rape by the Regional Trial Court of Valenzuela on 30 September 1998, and sentenced to death.  The conviction was based solely on the testimony of the girl, who admitted she was lying when she first made the allegation of attempted rape, and there were numerous inconsistencies in her trial testimony.  The claimant was then placed on death row in Muntinlupa prison.  On 21 December 1999, the Supreme Court, considering the case on automatic review, set aside the conviction, finding it based on allegations “not worthy of credence”, and ordered the claimant’s immediate release.  Upon his return to the United Kingdom, he sought compensation pursuant to the Philippine Republic Act 7309.  The claimant was awarded P14,000 (which he said should be P40,000 under the statutory scheme), and was further required to claim it in person in the Philippines.  Later, he applied for a tourist visa to go to the Philippines, but was informed that as a result of having previously overstayed his tourist visa and having been convicted of a crime involving moral turpitude (even though the conviction had been quashed), he had been placed on a Bureau of Immigration watch-list.  He submitted a communication to the HRC claiming to be a victim of a violation by the Philippines of (inter alia) ICCPR 14(6), complaining that the actual award of compensation for the miscarriage of justice was only one-quarter of his entitlement under the scheme, and that was almost wholly negated by the requirement to pay immigration fines and fees. The HRC held, at §6.6 of its decision, that the communication was not admissible:

“Concerning the claim under article 14, paragraph 6, of the Covenant, the Committee notes that the author’s conviction was reversed in the ordinary course of appellate review and not on the basis of a new or newly-discovered fact. In these circumstances, this claim falls outside the scope of article 14, paragraph 6, and is inadmissible ratione materiae under article 3 of the Optional Protocol.”

21.  There are other decisions of the HRC to the same effect.  In WJH v The Netherlands (Communication No 408/1990, 31 July 1992), the claimant was convicted of various offences, including forgery and fraud, by the Arnhem Court of Appeal on 24 December 1985.  The Supreme Court quashed the convictions on 17 March 1987, and referred the case to the Court of Appeal, which acquitted the claimant on 11 May 1988.  His request for compensation included damage for time spent in pre-trial detention.  The request was denied by the Court of Appeal on 21 November 1988, on the ground that it would not be fair to grant compensation since the claimant’s acquittal was due to a procedural error (in that the conviction was based on evidence that was later found to have been irregularly obtained).  The HRC held that the claimant’s communication claiming to be a victim of a violation by the Netherlands of (inter alia) ICCPR 14(6) was not admissible:

“The Committee observes that since the final decision in this case, that of the Court of Appeal of 11 May 1988, acquitted the author, and since he did not suffer any punishment as the result of his earlier conviction of 24 December 1985, the author’s claim is outside the scope of article 14, paragraph 6, of the Covenant.”

22.  In Uebergang v Australia (Communication No 963/2001, 29 June 2000), the claimant was convicted of two counts of false pretences in the District Court at Brisbane, and sentenced to a term of imprisonment of 2 years on 11 September 1997.  His appeal was allowed and his convictions set aside by the Queensland Court of Appeal on 27 February 1998, and he was released from prison on the same day.  His claim for compensation for a miscarriage of justice occasioned by his wrongful imprisonment for five and a half months was rejected by the Queensland Attorney General.  The claimant’s communication claiming to be a victim of a violation by Australia of (inter alia) ICCPR 14(6) was held to be inadmissible by the HRC:

“The Committee observes that the author’s conviction by the District Court on 11 September 1997 was overturned by the Court of Appeal on 27 February 1998. The Committee is, therefore, of the view that the author’s conviction was not a final decision within the meaning of article 14, paragraph 6 and that article 14, paragraph 6, does not apply to the facts of the instant case. This part of the communication is therefore inadmissible ratione materiae under article 3 of the Optional Protocol.”

23.  Lastly, in Anderson v Australia (Communication No 1367/2005, 15 November 2006), the claimant was convicted of the offence of conspiracy to murder and sentenced to 16 years of imprisonment by the Supreme Court of New South Wales on 8 August 1979.  His subsequent appeals were dismissed.  In 1985, fresh evidence emerged and pursuant to a judicial inquiry, the claimant was pardoned by the State Government of New South Wales on 15 May 1985.  He was released, having spent 7 years in jail.  An inquiry into his conviction uncovered evidence of police criminality, but no disciplinary action was taken against the police officers concerned.  His claim for ex gratia compensation was allowed, and he was paid $100,000 by the State Government by way of “rehabilitation compensation”.  In 1989, the claimant was arrested again and charged with the murder of three people in relation to a bombing incident which happened in 1978.  On 25 October 1990, he was convicted by the Supreme Court of New South Wales on three charges of murder and sentenced to an unspecified term of imprisonment.  He appealed to the Court of Criminal Appeal which, on 6 June 1991, quashed his convictions.  The claimant was then released from jail.  His further claim for compensation was, however, rejected by the Attorney General of New South Wales.  At §7.5 of its decision, the HRC held that the claimant’s communication claiming to be a victim of a violation by Australia of (inter alia) ICCPR 14(6) was inadmissible:

“The Committee observes that the author’s conviction by the Supreme Court of New South Wales of 25 October 1990 was quashed by the Court of Criminal Appeal on 6 June 1991. The decision of the Supreme Court of New South Wales was subject to appeal and did not therefore constitute a ‘final decision’ within the meaning of article 14, paragraph 6. The final decision was the decision of the Court of Criminal Appeal which acquitted the author. Accordingly, the Committee considers that article 14, paragraph 6, does not apply in the present case, and this claim is inadmissible ratione materiae under article 3 of the Optional Protocol.”

24.  In Nowak’s CCPR Commentary (3^rd revised edition, 2019), at p 422 (§130), it is stated that:

“The conviction must be final (‘définitive’) and may relate to any criminal offence (‘condemnation pénale’), i.e. to petty offences as well. If a person is convicted in first instance and acquitted on appeal, the right to compensation in Art. 14(6) is not applicable.”

25.  Mr Wilson Leung (for the Applicant) submits that the decisions in Irving and other cases mentioned above are wrong, that the interpretation put upon the words “final decision” in ICCPR 14(6) by the HRC is an “extremely restrictive interpretation which, in Hong Kong, would effectively limit compensation to cases where, after a ‘conviction’ in the Court of Final Appeal (in other words, the dismissal of a defendant’s appeal against conviction), the defendant is pardoned by the Chief Executive”, and that such restrictive interpretation would render the words “his conviction has been reversed” in HKBOR 11(5) completely otiose.  He submits that the correct interpretation is that “final decision” simply means a decision which is not an interim or interlocutory decision; in other words, it can include the situation where a defendant is convicted at first instance (eg in the Court of First Instance or the District Court), and subsequently his conviction is reversed by the Court of Appeal.

26.  While the HRC’s interpretation of the words “final decision” in ICCPR 14(6) is restrictive, it may be noted that that provision was regarded as being particularly controversial.  As mentioned in §3 of LC Paper No CB(2)2670/02-03(01) titled “Information Paper on matters arising from the Panel’s meeting on 28 April 2003: Payment of Compensation to persons wrongfully imprisoned (Item V)” dated June 2003:

“Human Rights texts (e.g. Nowak U.N. Covenant on Civil and Political Rights: CCPR Commentary, pp.269-271) note that the right to compensation was the most controversial provision of Article 14 (procedural guarantees in civil and criminal trials) when it was being drafted. The conditions for claiming compensation (namely, a subsequently acknowledged miscarriage of justice, absence of fault of the person convicted regarding belated disclosure of the miscarriage of justice, and serving a sentence because of the miscarriage of justice) represent compromises which enable the right to compensation to be included in Article 14. The restriction on compensation regarding the untimely disclosure of a newly discovered fact rules out, for example, cases in which a person allows himself to be convicted in order to avoid betraying another who was truly guilty (Nowak, p.271).”

27.  In R (Mullen) v Secretary of State for the Home Department [2005] 1 AC 1, at §§51-52, Lord Steyn referred to the travaux préparatories of the ICCPR in respect of article 14(6) and pointed out that many divergent views were expressed not on the desirability of a fundamental right to compensation but on the technical problems associated with finding a solution which could be accommodated across the spectrum of national systems.  There was, it would appear, no consensus of opinion on the meaning of various concepts (eg “miscarriage of justice) in that article eventually adopted by the State parties to the covenant at the time of its drafting.

28.  When considering the meaning of an article of the HKBOR that should be adopted by a Hong Kong court, it is important to bear in mind that the HKBOR is, after 1 July 1997, the means by which the relevant provisions of the ICCPR are applied to Hong Kong under Article 39 of the Basic Law.  The consistent views of the HRC as regards the meaning or interpretation of a relevant article of the ICCPR should, in my view, be regarded as being highly relevant and persuasive (see Koon Wing Yee v Inside Dealing Tribunal (2008) 11 HKCFAR 170, at §§99-101; Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381, at §59).  I also consider that I should give an article of the HKBOR the same meaning that the corresponding article of the ICCPR is currently being given by the HRC unless there is some good reason to depart from the HRC’s interpretation.

29.  Mr Leung places some reliance on the fact that the English legislation which seeks to give effect to the UK’s obligation under ICCPR 14(6), namely, Section 133(1) of the Criminal Justice Act 1988, omits the phrase “final decision” and instead expressly restricts compensation to situations where a conviction was quashed on an “appeal out of time” or on a reference by the Criminal Cases Review Commission to the Court of Appeal pursuant to Part II of the Criminal Appeal Act 1995.  I do not consider that one can draw any conclusion on the true meaning of the words “final decision” in HKBOR 11(5) (or ICCPR 14(6)) from the way in which the UK Parliament has chosen to define, or confine, the circumstances in which compensation is payable in England, save that it can persuasively be argued that those circumstances should not be narrower than what the words “final decision” truly mean because it can reasonably be assumed that the UK would abide by its international obligations under ICCPR 14(6).

30.  I have no hesitation in coming to the conclusion that the words “final decision” in HKBOR 11(5) ought to be given the same meaning that the HRC has consistently given to the same words in ICCPR 14(6).

31.  In the present case, the Applicant’s conviction on 21 October 2013 was quashed by the Court of Appeal in the ordinary course of an appeal.  Accordingly, he has not been convicted by a “final decision” within the meaning of HKBOR 11(5).  It follows that he is not entitled to claim compensation under that article.

32.  Having reached this conclusion, it is not necessary for me to consider the question of whether the third condition for compensation under HKBOR 11(5) (ie a new or newly discovered fact shows conclusively that there has been a miscarriage of justice), which was much debated at the hearing on 5 December 2019, is satisfied on the facts of the present case.

33.  There is one other matter that I should mention in passing.  In the present case, the Applicant has purported to apply for judicial review of the decision of the Department of Justice to refuse to grant compensation to him under HKBOR 11(5).  There is, however, nothing in the Hong Kong Bill of Rights Ordinance, or any rules or regulations, statutory or otherwise, that I am aware of, which empowers the Secretary for Justice (or any officer of the Department of Justice) to make a binding determination of a person’s entitlement to claim compensation under HKBOR 11(5).  The legal consequence or effect of the Department of Justice’s decision to refuse to grant compensation to the Applicant under HKBOR 11(5) is debatable.  Whether such decision can, or should, properly be challenged by way of judicial review based on the usual, or traditional, grounds of judicial review is also questionable.  Since these issues have not been fully argued by counsel, I shall refrain from expressing any final view on them.

34.  In all, I reject Ground 1, and Grounds 2 and 3 (in so far as they relate to the 1^st Decision), of judicial review.

APPLICANT’S CHALLENGE TO THE 2^ND DECISION

35.  The Ex Gratia Scheme is an administrative scheme operated by the Government with the aim of paying compensation to persons who have suffered miscarriage of justice, including persons who have been wrongfully convicted and spent time in custody, in accordance with a set of established guidelines, the details which have been summarized in LC Paper No. CB(4)486/12-14(06) (“the 2004 LC Paper), as follows:

“[3] As for the payment of ex gratia compensation (i.e. compensation NOT arising from any legal or statutory obligations) under the administrative scheme, the Solicitor General with the assistance of counsel within the Legal Policy Division of the Department of Justice is responsible for considering whether a particular case falls within the guidelines. If he decides that a case falls within the administrative guidelines, the amount payable is determined by the Secretary for Financial Services and the Treasury, taking into account the views of the Department of Justice and any other affected department of bureau.

[4] In short, the administrative guidelines for the payment of ex gratia compensation are summarised as follows:

(a) Compensation may be payable to a person convicted of a criminal offence who has spent time in custody and has received a free pardon because his innocence has been established or his conviction has been quashed following a reference to the Court of Appeal by the Chief Executive or an appeal out of time.

(b) Compensation may be payable where a person has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority.

(c) Aside from guidelines (a) and (b), compensation may be payable in outstandingly deserving cases.

(d) Compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge.

(e) Compensation may be refused where there is serious doubt about the claimant’s innocence.

(f) Compensation may be refused or reduced proportionately where the claimant is wholly or partly to blame for his misfortune.

(g) From the perspective of public policy or administration, extending compensation beyond guidelines (a), (b) and (c) to persons who have suffered loss in the ordinary course of the criminal process (for example, to those to whom guideline (d) applies) would have substantial cost and other resource implications. There would be a much larger number of potential claimants and a tribunal or some other special machinery would be required to investigate each case and distinguish the claimants who are very probably innocent from those who were lucky to escape conviction.

[6] Applications for ex gratia payments under the administrative scheme are handled by the Solicitor General with the assistance of counsel within the Legal Policy Division of the Department of Justice. Where necessary, outside independent counsel’s advice will also be sought. The Solicitor General is solely responsible for the final decision having regard to the administrative guidelines and all relevant circumstances of each case.”

36.  In the present case, the Deputy SG rejected the Applicant’s claim for compensation under the Ex Gratia Scheme because he considered, inter alia, that “there was serious doubt about the Applicant’s innocence”, applying the guideline referred to in §4(e) of the 2004 LC Paper.

37.  For the purpose of this application, the Deputy SG has made and filed an affidavit on 18 November 2019 (“the Affidavit”) to explain the materials that he had considered and his reasons for the 2^nd Decision.  As mentioned at §21 of the Affidavit, the Deputy SG had before him an internal note (“the Internal Note”) dated 26 October 2017 prepared by a senior government counsel (“the Senior GC”) of the Legal Policy Division of the DoJ to aid his consideration of the application.  It can be seen from the Internal Note that the following materials, amongst others, were considered by the Senior GC:

(1)     a photo album prepared from the CCTV footages of the relevant banks at the material times;

(2)     the transcript of two video recorded interviews of the Applicant by the police on 24 August 2011 and 18 November 2011 respectively;

(3)     telephone call records of the Applicant and X;

(4)     a call analysis prepared by the Applicant’s solicitors for the purpose of the Applicant’s criminal appeal;

(5)     an extract of the transcript of the evidence of X, the Applicant and a police constable (being PW7 referred to in the CA Judgment);

(6)     the CA Judgment; and

(7)     the Applicant’s affirmation filed on 2 July 2015 for the purpose of his application for bail pending appeal.

The Senior GC carefully analysed the above materials, including evidence which was not available to, or considered by, the Court of Appeal, and expressed the view that there was serious doubt about the Applicant’s innocence[3].

38.  At §22 of the Affidavit, the Deputy SG stated that he agreed with the reasons and analysis set out in the Internal Note, and also came to the view that there was serious doubt about the Applicant’s innocence notwithstanding that his conviction was quashed on appeal.  He summarized his essential reasoning for coming to that view at §§23 to 30 of the Affidavit, as follows:

“[23] First, the CCTV footages (which were played to the jury) showed that, prior to the robberies (including the last attempted robbery), X was never inside the relevant bank. On the other hand, on all occasions, the Applicant was inside the bank and not far away from the victims when they withdrew money at the counters. On each of the first three occasions, the Applicant was seen leaving the queue as soon as the victim was leaving or using the counter. On the fourth occasion, the Applicant and the victim finished using the counter more or less at the same time. On all four occasions, the Applicant and the victims left the banks in close proximity of time. The Applicant’s presence in the banks at almost the same time as the victims on all occasions was unlikely to have been a coincidence. The Applicant’s acts while inside the banks as captured by the CCTV suggested that the Applicant was in fact identifying targets and his acts cried out for an explanation.

[24] Second, the Applicant’s explanation given at trial, that he was at the banks at the time merely to look further into the matter in compliance with PC 2608’s instructions in order to find out who X’s partner or accomplice was, and he was not there to look for targets to rob, was unconvincing. His testimony that he had contacted PC 2608 prior to and during the course of the robberies was denied by PC 2608. The Applicant also claimed that he met PC 2608 on 13 July 2011 after the 3^rd robbery, but when the prosecution pointed out to the Applicant that PC 2608 was in fact in Japan from 10 to 14 July 2011, he immediately changed evidence and alleged that he could not remember correctly. There was serious doubt on the Applicant’s alleged cooperation with PC 2608. The Applicant’s acts while inside the banks as captured by the CCTV and the fact that the Applicant and each victim left the bank in close proximity of time cast further doubt on the Applicant’s version of the events.

[25] Third, the Applicant testified at trial that he and a person named ‘Ah Fai’ entered into agreement to inform the police of X’s actions in return for remuneration, and that on all four occasions he left the bank upon receipt of Ah Fai’s message that X had found the target victim. He claimed that he knew Ah Fai for at least six to seven years. However, the Applicant was unable to tell even the full name or the family background of Ah Fai. The Applicant did not provide any information on the identity of Ah Fai. The existence and/or the role of Ah Fai claimed by the Applicant are dubious.

[26] Fourth, while it is true that the call records contradicted one aspect of X’s testimony that the Applicant would call X after the Applicant spotted a suitable money withdrawer, the call records supported or were consistent with some of X’s testimony that, before each robbery, the Applicant called him concerning the planned robbery that day and that after the second robbery the Applicant called him concerning the sharing of the proceeds of the crime.

[27] Fifth, on the other hand, the call records were actually not in line with the Applicant’s testimony given at trial which was or at least gave rise to the impression that his telephone contacts with X were infrequent at the relevant period of time. He testified that he and X exchanged telephone numbers in around February or March 2011, and thereafter X occasionally called him while the Applicant had attempted to arrange part-time job for X but X stood him up. At the trial, the Applicant never mentioned his telephone contacts with X on the dates of the robberies, and only referred to two phone calls with X which took place a few days after the last attempted robbery. The call records, however, showed that in the period from 1 June to 25 July 2011, the Applicant and X had very frequent telephone contact almost every day (except 8 days) including the dates of the robberies on 13 June, 13 July and 14 July 2011 (there being no call records available for the first robbery on 16 May 2011). On 13 June and 13 July 2011, the Applicant even called X shortly after the robbery had taken place and for a few times.

[28] Sixth, after the Applicant had obtained the call records, he then sought to give an explanation for such frequent phone calls with X during that period of time, but his explanation was ludicrous and unconvincing. His explanation in any event failed to explain why he called X thrice on 13 June 2011 shortly after the second robbery, and four times on 13 July 2011 shortly after the third robbery. Had the call records been disclosed at trial, the Applicant would had been heavily cross-examined on it, and the call pattern as shown in those records would discredit him.

[29] By looking into all the evidence at the trial together with the un-disclosed call records as a whole, I had serious doubt about the Applicant’s innocence. His acts captured by the CCTV and his frequent call records with X including those calls almost immediately after the robberies were highly suspicious. I did not consider that the call records, had they been disclosed at the trial, would have helped to exonerate the Applicant, and accordingly his conviction did not result from the police’s default of not making disclosure of those call records, whether the default was serious or not.

[30]    The Court of Appeal quashed the Applicant’s conviction on the ground that the non-disclosure of the call records made the conviction unsafe.  While I had taken the judgment and the reasons of the Court of Appeal into account, I was solely responsible for the final decision in determining whether the Applicant’s case fell within the administrative guidelines for payment of ex gratia compensation having regard to the such guidelines and all relevant circumstances including but also apart from the Court of Appeal’s judgment.”

39.  It can be seen that the Deputy SG took into account, amongst other things:

(1)     the Applicant’s acts, conduct or behaviour inside the relevant banks as captured by the CCTVs at the material times[4];

(2)     his inconsistent evidence at the trial;

(3)     his unconvincing evidence about “Ah Fai”;

(4)     other aspects of the Telephone Records not focused upon by the Court of Appeal;

(5)     his frequent telephone contacts with X from 1 June to 25 July 2011; and

(6)     his subsequent “ludicrous and unconvincing” explanation for the frequent phone contacts with X during the aforesaid period of time[5]

in coming to the view that there was serious doubt about the Applicant’s innocence.

40.  When considering the Applicant’s complaint under Ground 2 of judicial review (in so far as it relates to the 2^nd Decision), the following principles should be borne in mind.  First, the Applicant has no legal entitlement to be paid compensation under the Ex Gratia Scheme.  Whether to grant compensation is a matter of discretion.  In an application for judicial review, the court does not conduct a merits review of the Deputy SG’s decision.  The Deputy SG’s exercise of discretion can only be challenged on the usual grounds of judicial review, ie illegality, Wednesbury unreasonableness, and procedural unfairness.  In Re McFarland [2004] 1 WLR 1289, Lord Scott of Foscote stated the following at §41:

“So, on the footing that the requisite parliamentary authority exists, the ex gratia payments are lawfully made under the prerogative power of the Crown. It is now well established that the Crown prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review: see R v Criminal Injuries Compensation Board, Ex p Lain [1967] 2 QB 864 and R v Criminal Injuries Compensation Board Ex p P [1995] 1 WLR 845. But the scope of the court's powers of intervention are, in my opinion, limited by the nature of the prerogative power in question. The Secretary of State for the time being is not bound by the statement of policy made by his predecessor. He is not bound to make an ex gratia payment to a person whose case falls within the current statement of policy and he is not bound to refuse a payment to a person whose case falls outside it. Provided the Secretary of State avoids irrationality in his decisions about who is and who is not to receive ex gratia payments, and provided the procedure he adopts for the decision-making process is not unfair, I find it difficult to visualise circumstances in which his decision could be held on judicial review to be an unlawful one.”

41.  Second, there are good policy reasons for the Government to be circumspect about making an ex gratia payment under the scheme.  In Re McFarland, supra, Lord Bingham of Cornhill stated the following at §§6-7:

“[6] In any liberal democratic state there will be those who are accused of crime and are acquitted at trial. There will also be those who are convicted at trial but whose convictions are quashed on appeal. All will suffer the stigma of being accused and the trauma of standing trial. Those convicted at trial are also likely to suffer some months of imprisonment before their appeals are heard. The question inevitably arises whether the state, which has initiated such unsuccessful, or ultimately unsuccessful, prosecutions should compensate those, or some of those, who are acquitted.

[7]     This is a difficult and sensitive question, for two main reasons. The first is that ministers, being accountable for the expenditure of public money, are rightly circumspect about making gratuitous payments to members of the public; and the need for circumspection is particularly great where the recipient may be a wholly innocent victim of mistake or misidentification or may be a serious criminal who is very fortunate to have escaped his just deserts. While the public might approve sympathetic treatment of the former, they would be understandably critical if significant sums of public money were paid to the latter.”

42.  Third, whether there is serious doubt about the Applicant’s innocence is essentially a matter for the Deputy SG to decide.  For this purpose, he is not bound by the judgment of the Court of Appeal. Obviously the Deputy SG should normally not depart from the reasoning which underlines the judgment of the Court of Appeal, although I would not go so far as to say that it is never permissible for him to do so.  In R (Adams) v Secretary of State for Justice [2012] 1 AC 48, Lord Kerr of Tonaghmore JSC said, at §§169-170, as follows:

“[169] In my opinion, the decision as to whether the statutory conditions have been fulfilled is one for the Secretary of State to make and he may not relinquish that decision to the Court of Appeal. True, of course, it is that the material on which the decision is taken will derive in most cases from the judgment of the Court of Appeal. True it also is that it would not be appropriate for the Secretary of State to depart from the reasoning that underlies that judgment unless for good reason it is shown to be erroneous but the Secretary of State must make his own decision based on all relevant information touching on the question whether there has been a miscarriage of justice. In the present appeals, Weatherup J [2009] NIQB 62 considered that it was open to him to examine the question whether there had been a miscarriage of justice not merely by reference to what the Court of Appeal had said but by taking into account the circumstances revealed by its judgment. At para 20 of his judgment he said:

‘Counsel for the respondent contends that there is nothing in the judgment of the Court of Appeal indicating that the applicants should not have been convicted. It should not be expected that a Court of Appeal will state in terms that an appellant should not have been convicted. The approach of the Court of Appeal on an appeal against conviction is concerned with whether that conviction is ‘unsafe’. In taking the cue from the Court of Appeal in determining a successful appellant’s entitlement to compensation it is necessary to have regard to the circumstances set out in the judgment of the Court of Appeal as well as the wording adopted in the judgment in relation to the position of the appellant.’

[170]    I agree with these observations and they appear, implicitly at least, to have been approved by the Court of Appeal. As Weatherup J stated, the task of the Court of Appeal is not to decide whether the appellant should have been convicted, much less to determine whether the appellant is innocent. It is to decide whether the conviction is safe. The decision whether there has been a miscarriage of justice (whatever meaning is to be given to that phrase) of necessity takes place on a different basis and on foot of consideration of issues beyond those which sound only on whether the conviction is safe.”

43.  Although what Lord Kerr said was in the context of the Secretary of State’s consideration of whether the statutory conditions for payment of compensation under Section 133 of the Criminal Justice Act 1988 were fulfilled, I consider that it is equally applicable in the context of the Solicitor General (or his delegate)’s consideration of the guidelines for payment of compensation under the Ex Gratia Scheme.

44.  In this connection, it is important to bear in mind that the focus of the Court of Appeal’s consideration in the Applicant’s appeal against his conviction was not whether the Applicant was “innocent” of the offence for which he had been convicted, but whether the prosecution had failed to discharge their duty to disclose relevant materials thereby rendering the conviction unsafe (see §25 of the CA Judgment).

45.  The Applicant’s complaint that the 2^nd Decision is “unlawful” or “based on an error of law” is obviously unsustainable.  The Applicant has given no basis to contend that it was unlawful of the Deputy SG to reject his claim for compensation under the Ex Gratia Scheme.  Neither has the Applicant identified any relevant error of law allegedly committed by the Deputy SG when he made the 2^nd Decision.

46.  The rest of Ground 2 goes, in substance, to the rationality of the 2^nd Decision.  At §68 of the Form 86, the Applicant refers to and relies upon (i) the CA Judgment, (ii) various matters referred to in §§15 and 44-48 of the Form 86, and (iii) the DoJ’s decision not to resist the appeal or request for a retrial, in support of the argument that the 2^nd Decision was based on an error of fact, or resulted from the taking into account of irrelevant considerations, or resulted from a failure to take into account relevant considerations, and/or was Wednesbury unreasonable.

(1)     In so far as the CA Judgment is concerned, it is plain the Deputy SG had taken that into account when making the 2^nd Decision (see §30 of the Affidavit).

(2)     In so far as the matters referred to in §§15 and 44-48 of the Form 86 are concerned, they essentially relate to the non-disclosure of Telephone Records, and the Court of Appeal’s reasoning as to why those records would seriously undermine X’s credibility and why the jury would “very likely” have rejected X’ evidence and acquitted the Applicant had they been adduced as evidence during the trial.  Those matters were, however, well taken into account by the Deputy SG.  More significantly, the questions for consideration by the Court of Appeal and the Deputy SG were different.  The question for the Court of Appeal was not whether there was serious doubt about the Applicant’s innocence, but whether the non-disclosure of the Telephone Records by the prosecution was a material irregularity and consequently the Applicant’s conviction unsafe.  The Court of Appeal’s conclusion that had the Telephone Records been disclosed, it was very likely that the jury would have rejected X’s evidence and acquitted him, in my view, be translated into a conclusion that there was no serious doubt about the Applicant’s innocence. The Court of Appeal did not express any view on that issue, and the Deputy SG was free to form his own view based on the totality of the information and materials before him.

(3)     Lastly, the DoJ’s decision not to resist the Applicant’s appeal or request for a retrial is not inconsistent with the Deputy SG’s view taken that there was serious doubt about the Applicant’s innocence. That the prosecution failed to disclose the Telephone Records was plain.  That the non-disclosure of the Telephone Records rendered the Applicant’s conviction unsafe was equally indisputable.  There was, so far as I can see, no realistic prospect of the prosecution successfully resisting the appeal.  As for the prosecution’s decision not to request for a retrial, the relevant consideration for such decision (namely, “whether the interests of justice so require”[6]) was different from whether there was serious doubt about the Applicant’s innocence.  The mere fact that there was serious doubt about the Applicant’s innocence would not be sufficient to justify a retrial, or give rise to a reasonable prospect of obtaining a conviction in a retrial.

47.  In his Skeleton Submission dated 26 November 2019, at §83, Mr Leung refers to §§35-54 of the Internal Note and argues that the materials relied upon by the Deputy SG -

“merely showed that there were points that could have been argued against the Applicant at trial … They do not prove that there was ‘serious doubt’ about the Applicant’s innocence. Ultimately, the Respondent’s reasoning is an impermissible attempt to use new materials (especially the Telephone Records, which were never used at trial, and on which the Applicant was never cross-examined) and speculative reasoning to circumvent the Court of Appeal’s statement that the ‘only evidence’ which could connect the Applicant to the offence came from X, whose evidence was highly discredited by the Telephone Records”.

48.  In my view, the Deputy SG was lawfully entitled to take into account materials which were not adduced at the trial (including materials not before, or not considered by, the Court of Appeal) in reaching his conclusion that there was serious doubt about the Applicant’s innocence.  I have already referred to the materials which the Deputy SG took into account in §§37-39 above.  The weight that should be given to such materials was a matter for the Deputy SG.  As earlier mentioned, the question which he had to consider was different from the question that had to be determined by the Court of Appeal.  I do not accept Mr Leung’s argument that the Deputy SG’s reasoning for coming to the view that there was serious doubt about the Applicant’s innocence amounted to, or constituted, an impermissible attempt to circumvent any part of the CA Judgment.

49.  In Mr Leung’s Supplemental Skeleton dated 4 December 2019, at §§16-42, he conducts a minute analysis and criticism of the reasoning process of the Senior GC and Deputy SG for their view that there was serious doubt about the Applicant’s innocence.  It is not with disrespect that I do not propose to deal with the detailed arguments raised by Mr Leung in this judgment, because they amount, effectively, to an attempt to draw the court into an impermissible merits review of the Deputy SG’s decision.  In my view, the highest that can be said is that there may be arguments for and against the view reached by the Deputy SG, which is far from being sufficient for the court to interfere with his decision in an application for judicial review.

50.  This having been said, I should mention I do not accept the Deputy SG’s view, expressed at §29 of the Affidavit, that the Telephone Records would not have helped exonerate the Applicant had they been disclosed at the trial, or that his conviction did not result from the police (or prosecution)’s default of not making disclosure of the Telephone Records. In view of the high standard of proof in a criminal trial, it is likely (or “very likely”, as put by the Court of Appeal) that the Applicant would have escaped conviction had the Telephone Records been made available to the defence at the trial[7]. My rejection of the Deputy SG’s view on this particular point does not, however, affect my view that the Deputy SG was entitled to come to the final conclusion that there was serious doubt about the Applicant’s innocence.  Even if the 2^nd Decision is remitted to the Deputy SG for fresh consideration, I believe that it is inevitable that he will come to the same conclusion.  Since the remedy of judicial review is discretionary, I would not be minded to grant any relief on the basis of this point.

51.  Mr Johnny Mok, SC has also objected to the Applicant’s reliance on the matters mentioned in Mr Leung’s Skeleton Submissions (§47 above) which have not been referred to in §68 of the Form 86 in support of Ground 2.  Mr Mok’s objection is sound.  The proper “discipline of law” in judicial review proceedings requires that all matters relied upon by an applicant in support of a rationality challenge against a public law decision must be clearly, and succinctly (in a few numbered paragraphs), set out in the Form 86, as stated by Litton PJ in Lau Kong Yung v Director of Immigration [1999] 3 HKLRD 778, at 815.  This requirement has recently been emphasized by the Court of Appeal in Chan Tsui Yan v Social Workers Registration Board [2019] HKCA 279, at §20.2 and 20.3, and by this court more than once, eg PVQ v Permanent Secretary for Security, HCAL 21/2017 (26 October 2017), at §48.  The same objection applies, with greater force, to the matters raised in Mr Leung’s Supplemental Skeleton (§49 above).  In my view, the Applicant’s rationality challenge against the 2^nd Decision must be confined to the matters raised in §68 of the Form 86.  This is an additional reason why I do not accept Mr Leung’s arguments referred in §§47 and 49 above.

52.  For the foregoing reasons, I reject the Applicant’s contention that the 2^nd Decision was based on an error of fact, or resulted from the taking into account of irrelevant considerations, or resulted from a failure to take into account relevant considerations, and/or was Wednesbury unreasonable.

53.  In relation to the Applicant’s reasons challenge under Ground 3, the Deputy SG’s essential reason for the 2^nd Decision was given in the DoJ’s letter dated 7 November 2017, namely, that there was serious doubt about the Applicant’s innocence.  In any event, the Applicant has now got the full reasons for the 2^nd Decision.  The Applicant has not been substantially prejudiced by the alleged insufficiency of reasons in the DoJ’s letter dated 7 November 2017 (see M v Permanent Secretary for Security [2019] HKCA 507, at §§9 and 15, where the Court of Appeal approved the approach of Au J, as he then was, mentioned at §4(2) of his Reasons for Decision).  Furthermore, having regard to the materials now before the court, there is no useful purpose in remitting the matter to the Deputy SG (or the Department of Justice) so that full reasons for the 2^nd Decision may be given to the Applicant.

54.  In all, Grounds 2 and 3 of judicial review, in so far as they relate to the 2^nd Decision, are rejected.

DISPOSITION

55.  Leave is granted to the Applicant to file his 3^rd Affirmation under the summons dated 21 November 2019.  The costs of and occasioned by that summons are to be treated as part of the overall costs of the application for judicial review.

56.  The application for judicial review is dismissed, with costs to the Respondents, to be taxed if not agreed, with certificate for two counsel.  The Applicant’s own costs are to be taxed in accordance with legal aid regulations.