KOO MING KOWN v. INDEPENDENT COMMISSION AGAINST CORRUPTION AND ANOTHER

HCAL 1972/2023

[2026] HKCFI 5247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1972 OF 2023

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JUDGMENT

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INTRODUCTION

1.  This is the rolled-up hearing of an application for leave to apply for judicial review and, if leave be granted, the substantive application.

2.  The decision sought to be challenged by the intended judicial review proceedings is that of the Independent Commission Against Corruption and/or the Secretary for Justice (“ICAC” and “SJ” respectively and “Respondents” collectively) refusing to prosecute one Siu See Kong (“Mr Siu”) for alleged offences under section 26 of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554) (“ECICO”) (“Decision”).

3.  More specifically, the applicant ("Mr Koo”) seeks an order of certiorari to bring up and quash the Decision and an order of mandamus directing the ICAC and/or the SJ to review the Decision and to prosecute Mr Siu for offences under section 26.

4.  Section 26, which criminalises the publication of false or misleading statements of fact about an election candidate[1], provides that:

“(1) A person engages in illegal conduct in an election if the person publishes a materially false or misleading statement of fact about a particular candidate or particular candidates for the purpose of promoting or prejudicing the election of the candidate or candidates.

(2) A candidate engages in illegal conduct in an election if the candidate publishes a materially false or misleading statement of fact about the candidate or candidates with whom the candidate is associated, or about another candidate or candidates, for the purpose of -

(a) promoting the election of the candidate or candidates with whom the candidate is associated; or

(b) prejudicing the election of the other candidate or candidates.

(3) For the purposes of this section, statements about a candidate or candidates include (but are not limited to) statements concerning the character, qualifications or previous conduct of the candidate or candidates.

(4)  In a prosecution for an offence of having engaged in illegal conduct under subsection (1) or (2), it is a defence to prove that the defendant believed on reasonable grounds that the statement was true at the time when it was made.”

5.  For the reasons explained below, I refuse leave.

MATERIAL BACKGROUND

6.  The relevant events leading to the Decision are as follows[2].

7.  Mr Siu, a practising solicitor in Hong Kong, participated as a candidate in the 2007 Legislative Council By-election and the 2015 District Council Ordinary Election (“Elections”).  His election banners, leaflets and ribbons referred to him as “蕭思江博士”.

8.  In around August 2018, it came to Mr Koo’s attention[3] that Mr Siu claimed to have acquired the degree of “Doctor of Philosophy in Management” (愛爾蘭歐洲大學暨北京外經貿大學管理系博士) through a study programme offered by the European University of Ireland (愛爾蘭歐洲大學) (“EUI”) in association with the University of International Business & Economics (Beijing) (北京外經貿大學) (“Alleged PhD”).  This was the only doctorate degree Mr Siu professed to hold. 

9.  According to Mr Koo, the Alleged PhD is in fact bogus.

10.  By letter dated 15 January 2019 by V Hau & Chow (“VHC”), Mr Koo’s former solicitors, Mr Koo complained to the ICAC that Mr Siu was in breach of section 26 of the ECICO in the Elections by publishing the statement that he held a doctorate degree in his promotional materials for the candidature, which statement was materially false and/or misleading.

11.  In response, during the period from January 2019 to July 2020, the ICAC:

(1)  carried out its own investigations including, among others, taking a witness statement from Mr Koo and conducting a cautioned interview with Mr Siu;

(2)  sought advice from the Department of Justice (“DOJ”) on the sufficiency of the evidence on Mr Siu’s alleged breaches of section 26; and

(3)  having received advice from the DOJ that there was insufficient evidence to substantiate the offences against Mr Siu, sought endorsement of its Operations Review Committee (“ORC”) that the ICAC would take no further action.

12.  The DOJ’s said advice to the ICAC was given by a then acting Senior Public Prosecutor (“SPP”) and endorsed by a then acting Senior Assistant Director of Public Prosecutions (“SADPP”) of the Prosecutions Division of the DOJ.

13.  From 24 August 2020 to 20 October 2020, the ICAC communicated the Decision to Mr Koo firstly by telephone and, upon Mr Koo’s requests, in person and in writing.  The information conveyed to Mr Koo included:

(1)  The ICAC had concluded investigation of Mr Koo’s complaint, with the outcome that there would be no prosecution against any person.

(2)  The relevant electoral documents, including electoral materials, had been disposed of by the Registration and Electoral Office and he ICAC was unable to retrieve sources of the material on the internet.

(3)  All aspects of the case had been investigated diligently and properly.

(4)  Details of the investigation could not be disclosed under the policies of the ICAC.

(5)  It is a defence to the section 26(1) and (2) offences under section 26(4) for an accused person to prove that he believed on reasonable grounds that the statement concerned was true at the time when it was made.

(6)  The Decision had been endorsed by the ORC which was made up of reputable members of the community independent of the ICAC.

14.  By letter dated 24 August 2023 from How & Co (“H&C”), Mr Koo’s new solicitors, to the ICAC, Mr Koo countered that there was sufficient evidence based on his research to substantiate a prosecution of Mr Siu under section 26 of the ECICO and asked for the ORC’s reasons for endorsing the Decision.

15.  By letter dated 12 September 2023 to H&C, the ICAC replied that the reasons for the Decision could not be provided[4] and that the SJ was the sole authority to make prosecutorial decisions under the Basic Law.

16.  By H&C’s letter dated 6 October 2023, Mr Koo provided to the ICAC copy of a statement made by Mr Siu to the police on 17 May 2019 in which Mr Siu said “he knew that the Alleged PhD was not recognised by any government” (“我知道該博士學位是無任何政府認可的”)[5]. Further, Mr Koo requested the ICAC to provide reasons should it maintain the view that there was insufficient evidence to prosecute.

17.  By letter dated 16 October 2023 to H&C, the ICAC informed Mr Koo that it had “no further comments or remarks on the matter”.

18.  By letter dated 17 October 2023 from H&C to the DOJ, Mr Koo invited the DOJ to review the Decision and to reply within 14 days (which expired on 31 October 2023).

19.  On 2 November 2023, Mr Koo initiated this application for judicial review to challenge the Decision.

20.  Subsequent to the commencement of these proceedings, by letter dated 22 November 2023 from H&C to the Prosecutions Division of the DOJ, Mr Koo demanded to be informed within 7 days whether Mr Siu would be prosecuted.  The Decision was then reviewed by a SPP[6] who advised that there was insufficient evidence to prosecute Mr Siu under section 26 of the ECICO.  Such advice was endorsed by an acting SADPP[7].

21.  Pausing here, I note that the decision not to prosecute Mr Siu was made by 2 SPPs separately and then respectively endorsed by 2 acting SADPPs.

22.  By letter dated 22 February 2024 to H&C, Mr Koo was advised by the DOJ that “having thoroughly considered the evidence in this case and in accordance with the Prosecution Code, we consider that there is no reasonable prospect of conviction against [Mr Siu]” and therefore “no prosecution will be instituted against him”.

23.  By letter dated 28 March 2024 from H&C to the DOJ, Mr Koo required the DOJ to supply “the facts and matters” in support of the Decision.

24.  The DOJ responded by letter dated 12 April 2024 to H&C that its legal advice was protected by legal professional privilege and would not be disclosed.

THE PROSECUTION CODE

25.  The parties disagree on the strength of the evidence that Mr Koo had provided to the Respondents and the failure of the Respondents to explain the Decision to Mr Koo. 

26.  As the SJ reviewed, and handled, Mr Koo’s complaint in accordance with the Prosecution Code (2013 edition) (“Code”), this is the appropriate point to identify the relevant provisions of the Code, which are as follows:

“Decision to prosecute

Paragraph 5: Section 15(1) of the Criminal Procedure Ordinance, Cap. 221 states

‘The Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of public justice do not require his interference.’

Paragraph 5.3: The effect of that provision [s 15(1) of the Criminal Procedure Ordinance] is to endorse generally accepted and longstanding international practice under the common law – that the decision to prosecute includes two required components.  The first is that the admissible evidence available is sufficient to justify instituting or continuing proceedings. The second is that the general public interest must require that the prosecution be conducted.

Sufficiency of evidence

Paragraph 5.4: There must be legally sufficient evidence to support a prosecution; that is, evidence that is admissible and reliable and, together with any reasonable inferences able to be drawn from it, likely to prove the offence.

Paragraph 5.5: The test is whether the evidence demonstrates a reasonable prospect of conviction.  To satisfy that test, a prosecutor must make prospective judgments about matters such as:

(a) the evidence available;

(b) any challenge that may be made to the admissibility and/or reliability of the evidence;

(c) the availability, competence and credibility of witnesses, and their likely assessment by the court;

(d) any contrary evidence that may reasonably be anticipated;

(e) likely defences to be raised;

(f) the way in which a reasonable tribunal of fact, properly instructed as to the law, will be likely to act on all of the evidence and arguments in the case.

Paragraph 5.6: A prosecutor will need to consider in relation to witnesses: the reliability of memory; any suggestion of exaggeration; any association with the accused (favourable or unfavourable); any motive not to tell the whole truth; availability; psychological or other personal characteristics (including in the case of a child or incapacitated witness); vulnerability to attack by the defence.

Paragraph 5.7: The public interest is not served by proceeding with cases that do not satisfy this test.  The resources required to prosecute must be reasonably applied only to proceedings that will be fair and that are likely to be effective.

Judicial Review

Paragraph 10.3: An independently made prosecution decision of the Secretary for Justice or his or her delegate, or decisions made during criminal proceedings may be judicially reviewed only in rare and exceptional cases.  This is also the case with decisions made at trial in order to avoid the fragmentation of the criminal trial process. An order of review can do no more than require the Secretary for Justice to reconsider the decision in the light of the court’s findings.

Publication of Reasons

Paragraph 23.2: Reasons for decisions made in the course of prosecution, or of giving advice, may be given where practicable, orally or in writing, to those having a legitimate interest in the matter or where it is otherwise appropriate. A legitimate interest includes:

(a) the interest of a court in knowing why a particular course of conduct has been taken;

(b) the interest of a victim of crime in the conduct of a case;

(c) the interest of any agency of government or an entity with a proper interest in knowing the basis of advice given;

(d) the interest of the community and the media in the open dispensation of justice where previous proceedings have been public.

Paragraph 23.4: There are circumstances in which the giving of reasons may be contrary to the public interest or otherwise inappropriate, including where to do so:

(a) may prejudice ongoing investigation or the integrity of law enforcement;

(b) may adversely affect the interests of a victim of a crime, a witness, a suspect or an accused;

(c) may adversely affect the administration of justice (especially in the case of a decision not to prosecute where public discussion may amount to a public trial without the safeguards of the criminal justice process);

(d) may expose information given confidentially or sensitive information, the exposure of which may give rise to legitimate concern to individuals;

(e) may be contrary to protections given by the Personal Data (Privacy) Ordinance (Cap. 486);

(f)  may be contrary to legal professional privilege (unless waived) or public interest immunity.”

GROUNDS FOR JUDICIAL REVIEW

27.  Mr Koo advances the following grounds for judicial review of the Decision:

(1)  The evidence available to the ICAC and the DOJ points unquestionably to the desirability of a prosecution against Mr Siu of an offence under section 26 of the ECICO.  In support, Mr Koo relies on the matters set out in his affirmation filed together with the Form 86 on 2 November 2003 including, in particular, the letter dated 15 January 2019 from VHC to the ICAC[8] (see [10] above) and the letter dated 17 October 2023 from H&C to the DOJ[9] (see [18] above).

(2)  The Decision is unconstitutional in that it would be a dereliction of duty and/or abuse of power on the part of the DOJ if it refuses to prosecute notwithstanding that the evidence “points unquestionably to the desirability of there being a prosecution”.

(3)  The Decision is tainted with procedural impropriety, in that both the ICAC and the DOJ merely asserted a conclusion of insufficiency of evidence without explaining why the evidence is considered insufficient.  There is simply no evidence that the ICAC and/or the DOJ had grappled with the assessment of the sufficiency of the available evidence against the elements of the offence under section 26.  In the absence of evidence, there is no basis for finding that it did.  The Decision is thus fundamentally flawed and irrational.

JURISDICTIONAL ISSUES

28.  However, it would be unnecessary to delve into the merits of these proposed grounds (save to the extent required to see if the decision not to prosecute may be “unconstitutional”[10]) if either of the following 2 questions going to the court’s jurisdiction to entertain the application for judicial review of the Decision, are answered in the negative.  They are:

(1)  whether the Decision, being a prosecutorial decision, is amenable to judicial review (“Amenability Question”); and

(2)  if so, whether Mr Koo has the standing to bring and pursue proceedings for such judicial review (“Standing Question”).

Amenability Question

29.  The parties have cited an extremely comprehensive body of case law on the amenability of prosecutorial decisions, the most notable of which are RV v Director of Immigration [2008] 4 HKLRD 529, Re Leung Lai Fun [2018] 1 HKLRD 523 (CA); and Kwok Cheuk Kin v 律政司刑事檢控專員梁卓然 [2019] HKCFI 2215.

30.  For present purposes, it is unnecessary, and therefore I do not propose, to go into the cases on amenability to which I have been referred in detail.  It is sufficient to set out the principles for which the cases are authority.

(1)  Article 63 of the Basic Law (“Article 63”), preserving prosecutorial independence which is a linchpin of the rule of law, provides that: “The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference”.

(2)  The interference guarded against by Article 63 includes the protection of the independence of the DOJ’s control of criminal prosecutions from judicial encroachment.

(3)  Prosecutorial decisions made by the DOJ (including those not to prosecute) are thus not amenable to judicial review on conventional administrative law grounds.

(4)  Such decisions are reviewable by the court only on the ground of unconstitutionality, i.e. where the DOJ has exceeded the constitutional limit of the broad control over criminal prosecutions given to it under Article 63.

(5)  There is not an exhaustive list of what constitutes unconstitutionality.

(6)  Established examples are where the DOJ acts (1) in obedience to political instructions or (2) out of bad faith or (3) where there is a rigid fettering of discretion.

(7)  The exceptional circumstances must be truly exceptional[11] and must demonstrate that the DOJ has acted outside of its very broad powers.

(8)  The requirement of unconstitutionality is not satisfied, without more, by contentions of “irrationality”, “Wednesbury unreasonableness”, “improper purposes not amounting to bad faith”, “consideration of irrelevant matters”, “failure to have regard to relevant matters”, “want of natural justice” or “mistaken view of the law or facts upon which a decision to prosecute or not to prosecute is based”, etc.

31.  There is no allegation in this matter that the DOJ had acted in obedience to political instructions or out of bad faith or had fettered its prosecutorial discretion.

32.  What Mr Koo contends is that the evidence placed by him before the DOJ is sufficient for the prosecution of Mr Siu for offences under section 26 of the ECICO and points unquestionably to the desirability of there being a prosecution.

33.  In so contending, Mr Koo relies on R v Director of Public Prosecutions, ex parte C [1995] 1 Cr App R 136; and Ma Pui Tung v Department of Justice, CACV 64/2008, unreported, 23 September 2008.

34.  It is sufficient to refer to what Rogers VP said at [10] of the judgment in Ma Pui Tung:

“It is, no doubt, in extremely rare cases and only where the evidence points unquestionably to the desirability of there being a prosecution that a court should interfere with a decision of the prosecuting authority not to prosecute.  There are instances where an application for judicial review in respect of a refusal to prosecute has been allowed.  I would draw attention for example to R v Director of Public prosecutions, ex parte C [1995] 1 Cr. App. R. 136 and the note contained at pages 858-861 of the Criminal Law Review 2000 in respect of the case of R v Director of Public Prosecutions, ex parte Jones.  It must be emphasised, however, that those were cases where the facts spoke for themselves.” (emphasis added)

35.  Is this case an “extremely rare” one?  Do the facts “speak for themselves”?  Does the evidence against Mr Siu “point unquestionably to the desirability of there being a prosecution”? 

36.  Emphatically NOT. 

37.  The basis upon which Mr Koo suggests that it is unquestionably desirable to have Mr Siu prosecuted is the supposed strength of the evidence he had collated against Mr Siu and supplied to the DOJ.  Counsel for the SJ has made detailed submission why the evidence produced by Mr Koo and ICAC’s own investigation does not constitute legally sufficient evidence to support a prosecution, in accordance with the Code. 

38.  I do not propose, as it is unnecessary, to evaluate such evidence.  It is not for the court to dwell on the merits of the Decision.  I also wish to add that the ICAC/ the DoJ have gone through the established procedures in following up on the case.

Standing Question

39.  In light of my conclusion on the Amenability Question, it is strictly not essential to address the Standing Question.

40.  However, in case this matter should go further, I will also answer the Standing Question against Mr Koo.  My reasons are briefly as follows.

41.  Section 21K(3) of the High Court Ordinance (Cap 4) provides that no application for judicial review shall be made unless the leave of the Court of First Instance has been obtained in accordance with the rules of court; and the court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest to which the application relates.

42.  In considering in this particular context whether the preservation of the rule of law requires standing be given to this particular applicant to ventilate the issues raised herein in light of the interest that Mr Koo has[12], I have had regard to the review of the law on standing by Chow J (as Chow JA then was) in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93 at [31] to [34].  His Lordship summarised the legal principles as follows at [34]:

“(1) Where the decision affects the applicant’s personal right or interest over and above that of the general public or a section of the public, the applicant should have little difficulty in showing a sufficient interest in the matter to which the application relates.

(2) Where, however, the decision does not have such effect and the applicant is effectively pursuing the application as a representative of the public interest, the court adopts a holistic approach by taking into account a host of relevant considerations, including the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challenges who have a greater interest in the matter, and the nature of the breach of duty against which relief is sought.

(3) In such a situation, the applicant is not to be regarded as having a sufficient interest merely because the issue raised by him is of public interest.  As observed by Dyson LJ (as he then was) in R (Feakins) v Secretary of State for Environment, Food and Rural Affairs [2004] 1 WLR 1761, at [23], “if a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest”.

(4) Equally, the applicant should not be regarded as having a sufficient interest merely because of the strong merits of the proposed challenge.  As pointed out by Lord Reed in his judgment in AXA General Insurance Ltd v HM Advocate quoted above, “the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted”.

(5) Although there has undoubtedly been a trend to liberalise the requirement of standing in judicial review, the need to show a sufficient interest in the matter to which the application relates, remains, in my view, an important filter application to keep judicial review within its proper bounds and to prevent abuse of the court’s process, particularly having regard to the explosive increase in the number of applications for judicial review and, more importantly, the complexities of applications seen in recent years in Hong Kong.

(6) Where the applicant does not have a personal right or interest in the subject matter of the judicial review but claims to make the application in a representative capacity, the court ought to be vigilant in examining whether he is genuinely advancing a public interest in making the application or is motivated by other reasons.  In R (Feakins) v Secretary of State for Environment, Food and Rural Affairs, Dyson LJ stated, immediately following the sentence quoted above, the following –

‘As Sedley J said in R v Somerset Country Council, Ex p Dixon [1997] JPL 1030, when considering the issue of standing, the court had to ensure the claimant was not prompted by an ill motive, and was not a mere busybody or a trouble-maker.  Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose.  It is an abuse of the process to permit a claimant to bring a claim in such circumstances.  If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing.’” (emphasis added)

43.  The above principles were endorsed by the Court of Appeal in Kwok Cheuk Kin (Leg Co), supra, at [25].

44.  In paragraph 15 of his 3^rd affirmation dated 2 April 2025, Mr Koo said:

“…I wish to emphasise that in the ICAC’s public education campaigns, it always encourages the public to report corruption and illegal conduct in public elections under the [ECICO]. I therefore reported to the ICAC that Siu knowingly represented his bogus doctorate degree in his election campaigns. Yet, the ICAC ended its investigation without reasonable and adequate explanation to me as the complainant in this instance despite my repeated requests through my lawyers.”

45.  This is the only evidence by Mr Koo explaining why he takes up this matter.  He does not claim to have been affected by Mr Siu holding himself out as having a PhD degree in either of the Elections back in 2007 or 2015.  He plainly has no personal interest in the matter raised in this application.  I do not accept the argument that being the complainant, without more, could cloak Mr Koo with personal interest to pursue judicial review.  Counsel’s assertion in oral submission at the hearing that Mr Koo is pursuing the application as a representative of public interest also does not get off the ground because the matters that the court should consider in a holistic approach, as set out in the [42] above, including the merits (or rather the lack thereof) of this application would not favour Mr Koo.

46.  In the premises, Mr Koo has no standing to challenge the Decision, even if it is amenable to judicial review (which it is not).

DISPOSITION

47.  For the foregoing reasons, I dismiss Mr Koo’s application for leave to apply for judicial review of the Decision. 

48.  I also order Mr Koo to pay the Respondents their respective costs of these proceedings (including costs previously reserved) to be taxed, if not agreed, on a party and party basis with certificate for 2 counsel.

49.  Lastly, I thank counsel for their assistance.