RE NG SHEK WAI

CACV 213/20 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 213 OF 2016

(ON APPEAL FROM HCAL NO 64 OF 2016)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  On 17 February 2017, we handed down our judgment dismissing the applicant’s appeal against the decision of Andrew Chan J refusing him leave to apply for judicial review. Our judgment of 22 pages was written in Chinese, as the applicant, who is acting in person throughout, filed all his papers and submissions in Chinese.

2.  On 3 March 2017, he filed a notice of motion seeking leave to appeal to the Court of Final Appeal.  He lodged a written submission on 30 March 2017 pursuant to the directions of the court.  As the notice of motion and the submission are in English, we will give our judgment in English.

3.  The applicant seeks leave to appeal on two bases.  Firstly, he contended there are questions of great general or public importance involved in the intended appeal.  Secondly, he relied on the ground of grave injustice and invoked the “or otherwise” limb.

4.  Two questions said to be of great general or public importance were framed in the notice of motion:

“Q1: In a judicial review application, (a) may the Court on its own motion raise a new point and (b) shall the applicant be given full opportunity to address that new point?

Q2: (a) Is the classification of a report of fraud a pure question of laws [sic] and (b) if the police can take into account other factors, do the police have the burden of proof of the legitimacy of these factors?”

5.  The applicant sought an oral hearing for this application, this was because, as he alleged, this court did not provide him with “full opportunity to answer its new points and negative opinions”.  We have considered his written submission of ten pages, with a bundle of twelve authorities.  His submission is detailed and comprehensive and we have no reason to think he has not made his arguments fully.  We understand the points he made and do not find it necessary to ask for clarification of any of the arguments.  We exercise our discretion to determine his application for leave to appeal on paper.

Question 1

6.  The matters complained of as “new points” relate to §§45, 46, 58 and 61 of our judgment.  The applicant contended that if he had been informed in advance of the “new points” in our judgment, he would have raised new counter arguments to challenge the factual and legal bases of these “new points”.  In short, his complaint is that he was deprived of his right to a fair trial.

7.  In his appeal to the Court of Appeal, the applicant had also complained that he did not have a fair trial in the hearing before the judge.  We dismissed his complaint for the reason given in §63 of our judgment.

8.  He invoked the principle in Flywin Co Ltd v Strong & Associated Ltd (2002) 5 HKCFAR 356 and cited a number of authorities[1] in support of these submissions: that the court (whether first instance or the appeal court) should abide by the Flywin principle; that the court is not at liberty to take a new point, even if it is a pure question of law, and must abide by the principle of fairness; that the court can only raise a new point on its own motion when there is exceptional circumstance, and the parties should be given full opportunity to consider and respond; that in the context of judicial review, the court should not raise a new point in favour of the respondent and thereby substitute its own judgment or impose its own conclusion as if it were the primary decision maker, instead of reviewing the matter.

9.  He referred to the initial response of 5 August 2016 (“Initial Response”) served by the putative respondent (the Commissioner of Police), and submitted that because the putative respondent did not “plead” various matters in the Initial Response as reasons for his decision to classify the applicant’s complaint to the police as a “Miscellaneous Case” instead of a “Criminal Case” (“the Decision”; being the decision challenged in the application for judicial review in Form 86), the judge and the Court of Appeal had raised “new points” in their judgments in relying on those matters which have not been “pleaded” as reasons for the Decision.

10.  We do not think these are valid arguments.

11.  The Initial Response is not to be read as a pleading and looked at restrictively in the manner as submitted by the applicant.  On a fair and proper reading of the Initial Response, we do not think the matters complained of as “new points” could properly be regarded as such.  Those matters were all mentioned in the Initial Response.  The applicant was put on notice by the Initial Response of those matters.  He was at liberty to make such response on those matters as he saw fit to the judge and on appeal.  He had made very detailed submissions to the judge and before us.

12.  Properly read and understood, it could not be said that those matters did not form part of the reasons for the Decision.  Nor could it be said that the court was substituting its judgment for that of the primary decision maker instead of reviewing the Decision.

13.  In §§45 to 47 of our judgment, we made the point that the Decision was not a final decision that the police would permanently terminate its investigation into the applicant’s complaint and that is a reason why the court should exercise its discretion to refuse leave for judicial review of the Decision.  In making that point, we referred to the relevant contemporaneous documents (the email of the police to the applicant dated 22 December 2015; the memo of the police to the Building Authority dated 22 February 2016) and the relevant passages in the Initial Response at §§3(h), (j) and 6.  We do not think that is a “new point” for the reason given earlier.

14.  In §58 of our judgment, we dealt with the applicant’s argument that the materials he provided to the police were sufficient to establish the elements of fraud under section 16A of the Theft Ordinance, Cap 210.  We agreed with the judge that the Decision was not wholly unreasonable and expressed reservation of the contrary conclusion of the applicant, but we did not think it necessary to resolve this as we did not think the Decision was made in error of law or was Wednesbury unreasonable or was made out of improper motives.

15.  As to §61 of our judgment, the main point we made was that since the applicant had abandoned the failure to give reasons as a ground for judicial review, it is unnecessary for the court to deal with the alleged failure to give reasons, and if it were necessary to deal with the allegation it was incumbent on the police to explain why the information provided by the applicant was insufficient to support a conviction in fraud, we expressed agreement with the Initial Response that this is impracticable and infeasible as this would add greatly to the administrative burden of the police and hamper the discretion of the police in investigation.

16.  We fail to see how §§58 and 61 of our judgment could be regarded as raising “new points”.

17.  In our view, question 1 is a hypothetical question and is far removed from the facts of this case.  We refuse to grant leave to appeal for this question.

Question 2

18.  The applicant contended that the duty of the police to investigate a complaint of fraud is defined by the question of what is fraud and this is a question of law.  The classification of a complaint as a criminal or non-criminal case is a pure question of law; it is not at the discretion of the police. So part (a) of question 2 should be answered in the affirmative.

19.  He submitted that even if one were to ignore the reason given by the police that the information he provided showed no evidence of a crime, which he alleged was a “faked reason”, the police still has a burden of proof to establish the legality of the Decision.  Once he has established prima facie evidence of fraud, his right to protection from crime under Article 2 of the Hong Kong Bill of Rights and Article 6 of the Basic Law is engaged, and when the police refused to investigate, thereby restricting his right to protection from crime, the burden is on the police to prove the legality of the restriction of his right.  He prayed in aid Mok Charles Peter v Tam Wai Ho & Anr (2010) 13 HKCFAR 762 at §31.  Hence, part (b) of question 2 should be answered in the affirmative as well.

20.  We do not accept his arguments. For the reasons given in §§49 to 57 of our judgment, the decision of the police in classifying a complaint as a criminal case or miscellaneous case is not purely a question of law; this involves the exercise of discretion and professional judgment of the police, and there is not only one right answer or only one correct way of classifying or dealing with the complaint.  In support of this, we have referred to R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118 at 136 D to F and R (On the Application of Corner House Research & Ors) v Director of The Serious Fraud Office [2009] 1 AC 756 §§30 to 32, as well as this dictum in Matalulu v Director of Public Prosecutions [2003] 4 LRC 712 at 735 (approved in Corner House Research at §31 and Mohit v DPP of Mauritius [2006] UKPC 20 at §17): “the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is neither the constitutional function nor the practical competence of the courts to assess their merits.”

21.  Besides, as mentioned earlier, we do not regard the Decision as a final decision of the police not to investigate his complaint.  No exceptional case has been made out in this instance for the court to interfere at this stage with the exercise of the discretion and professional judgment of the police.

22.  We do not think the arguments advanced in support of question 2 are reasonably arguable.  We refuse to grant leave to appeal for this question.

“Or otherwise” limb

23.  The basis for invoking the “or otherwise” limb is that the applicant claimed he has suffered grave injustice and did not have a fair hearing on appeal.  He said he was denied the opportunity to make representation on the opposite opinion of the Court of Appeal before judgment was given, and the Court of Appeal should have asked him questions on various matters that it ruled against him.  He gave a litany of the errors of fact and law made by the Court of Appeal in §36 of his submission.  He complained that the Court of Appeal has not given a reason or sufficient reason for some of the rulings.

24.  Leave to appeal may be given on the “or otherwise” limb where exceptional circumstances are shown.  Suffice it to say we are not satisfied there is any basis to invoke this limb in the present situation.

25.  For all the above reasons, we exercise our discretion to refuse leave to appeal to the Court of Final Appeal.