NG CHI KEUNG v. SECRETARY FOR JUSTICE

CACV 32/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 32 OF 2013

(ON APPEAL FROM HCAL NO. 27 OF 2013)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for the Judgment of the Court):

Introduction

1.  This is an appeal from the refusal, by Deputy Judge Wright on 7 February 2013, of leave to apply for judicial review of two decisions taken by the Director of Public Prosecutions: the first decision in October 2012, to intervene and assume conduct of three private prosecutions initiated by the applicant; the second, in December 2012 to discontinue those private prosecutions.

2.  On 30 April 2014, we allowed the appeal, and gave the applicant leave to apply for judicial review of those decisions.  We said we would give reasons later.  This we now do.

Background

3.  It is unnecessary for present purposes to delve into the factual background in detail.  It suffices to say that at all material times the applicant was a registered dealer representative and dealing director of a securities company.  In July 2012, he laid informations before a magistrate against three men alleging against them that they made reports to the police falsely alleging that he had dishonestly appropriated 50 million shares in a listed company, and that they had thereby conspired to pervert the course of public justice.  Two of the men held share trading accounts with the applicant's company and it is said that they held the shares in question as nominees of the third, a man named Hui.  The applicant's answer to the reports made against him is that the shares were transferred to a man named Koon pursuant to a lawful agreement.

4.  The applicant’s informations constituted the last in a series of related actions: there were a number of civil proceedings launched against the applicant by Hui and one of the other men, and a civil action commenced by the applicant against his accusers.  In addition to that, as a result of a report by Hui to the police, the applicant, Koon and another were charged in June 2009 with conspiracy to blackmail and theft; this resulted in a trial in the Court of First Instance which concluded on 25 March 2014 with the acquittal of the applicant and the other defendants.

5.  Since the criminal allegations against the applicant appeared to be set against the same factual matrix as his complaints against the three men, we decided, when this matter came before us ex parte on 19 March 2014, to await the outcome of the criminal trial to see whether that outcome had any bearing upon the applicant's proposed judicial reviews.  We invited the putative respondent to assist the Court with submissions as to the consequences of the outcome of the trial and this he has done.  He opposed the grant of leave.

The proposed challenge

6.  The application for leave presents a plethora of suggested flaws in the two decisions of the Director.

7.  It is suggested that in coming to the first decision, namely, to intervene and assume conduct of the prosecutions, the Director failed to follow the Statement of Prosecution Policy and Practice promulgated by the Department of Justice in that the applicant's wishes were not sought; that there was no basis for concluding that the public interest would be advanced by taking over the private prosecutions; that there were no exceptional circumstances to warrant taking them over; and that the course adopted was not approved personally by the Secretary for Justice.

8.  It is then said that the second decision, to discontinue the private prosecutions, was Wednesbury unreasonable because it was based on a clearly erroneous assessment of the strength of the evidence and was in any event tainted by an appearance of bias - no actual bias is suggested - in that the Secretary had himself previously acted for one of the parties and the fact that the decision was actually taken by the Director did not cure the taint.

The main ground

9.  We have not had to address these various grounds - their individual strengths and weaknesses will no doubt be considered upon the review, if the main ground (as we shall, for convenience, label it and next address) fails.

10.  That ground is one which attacks the lawfulness of the Policy in so far as the Policy dictates that in deciding whether to take over a prosecution, one of the factors which is relevant is whether the prosecution will be taken over to be terminated and in deciding that latter question, regard is to be had to a series of matters including "whether… there are reasonable prospects of success.”

11.  That is the test - reasonable prospects of success (rather than whether there is a prima facie case) - which was applied in this case.  It is not the only issue to be considered under the Policy but it is the sole factor relied upon in the Director's letter of 27 December 2012 which communicated the second decision to those acting for the applicant.  The relevant paragraph reads as follows:

“The case has been carefully considered including the information and materials submitted by you and the representations you have made on your client's behalf. It has been decided to discontinue the proceedings instituted by your client on the ground of sufficiency of evidence in that the test as to whether there is a reasonable prospect of a conviction is not satisfied on the evidence. In evaluating the evidence and coming to this decision we have been guided by The Statement of Prosecution Policy and Practice, 2009. We direct your attention, in particular, to paragraphs 7 and 11. I also refer to the recent Supreme Court case of R (Gujra) v Crown Prosecution Service [2012] 3 WLR 1227. The case turns essentially on the evidence of [the applicant], and after careful consideration of the available evidence, there are issues as to his credibility and the reliability of his evidence that rendered the reasonable prospect test not satisfied.”

12.  The applicant’s contention is that the application of the reasonable prospect of success test emasculates the constitutional right of  the individual to access to the courts and is therefore unlawful.

13.  There is respectable support for this contention. 

Gujra

14.  In England and Wales, the Director of Public Prosecutions has the power to take over a private prosecution and thereafter to discontinue it.  Before 2009, the test or part of the test which he applied was whether the evidence clearly failed to disclose a case sufficient for the accused to be called upon to answer.  In 2009, that policy changed to a reasonable prospect of success test; more exactly, that a prosecution should not be continued unless it was more likely than not that the defendant would be convicted. 

15.  In Gujra, the Crown Prosecution Service, pursuant to a power conferred by the Prosecution of Offences Act 1985, and in application of the new policy, took over three private prosecutions brought by the claimant and discontinued them.  The claimant sought judicial review of the decision and one of the grounds was that the policy was unlawful because it improperly restricted the statutory right of a citizen to launch a private prosecution.  The Divisional Court dismissed the claim and he appealed to the Supreme Court.

16.  The majority (Lord Neuberger PSC, Lord Kerr and Lord Wilson) dismissed the appeal, holding that the application of the reasonable prospect test did not constitute an elimination of the right to initiate private prosecutions.  There were, however, two dissenting judgments, those of Baroness Hale and Lord Mance.  The judgments serve to highlight several issues of significant principle which the present application for leave seeks to raise. 

17.  On the side of the applicant’s argument may be gleaned:

(1) the comments of Lords Wilberforce and Diplock in Gouriet v Attorney General [1978] AC 435 at 498, cited in Gujra (para 90) that the right of access to the courts for the purpose of instituting and pursuing private prosecutions was "a valuable constitutional safeguard against inertia or partiality on the part of authority" and "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of … authorities to prosecute offenders.”;

(2) the suggestion by Laws LJ in Ex p Duckenfield [2000] 1 WLR 55 at 66 that the notion that the DPP "would stop a private prosecution merely on the ground that the case is not one which he would himself proceed with … would amount to an emasculation” of the statutory right to bring a private prosecution and that the very premise of that right "must be that some cases will go to trial which the DPP himself chooses not to prosecute.” (Gujra para 34);

(3) the general principle that: “ Parliament legislates against the background of rights which the common law treats as fundamental or constitutional.  The legislation is to be construed as displacing such rights only so far as it contains clear and specific provision to this effect” (Gujra at para 108);

(4) the consideration that one reasonable prosecutor might take the view that a reasonable court was unlikely to convict whereas another reasonable prosecutor could take the view that such a court was likely to convict on the facts of the case, so that the effect of the policy was to “leave the victim (who… knows whether or not she is the victim of crime) to the chance of which among many no doubt entirely reasonable prosecutors handles her case.” (Baroness Hale at para 131 Gujra); and

(5) the contention that “ the protection against unjustified prosecution lies… with the courts” (evidence before the Royal Commission on Criminal Procedure 1981, cited at Gujra para 105).

18.  Amongst the considerations underlying the majority judgments are the following:

(1) that it is surely more relevant to the aptness of a prosecution whether that prosecution is likely to result in a conviction than whether it is likely to survive a submission of no case to answer (para 35);

(2) that “a prosecution which lacks a reasonable prospect of success draws inappropriately upon the resources of the court” (para 36);

(3) that "a defendant would have a legitimate grievance about  subjection to criminal prosecution at the instance of a private prosecutor in circumstances in which, by application of lawful criteria to the strength of the evidence against him, there would be no public prosecution” (para 36); and

(4) that the lawfulness of a decision to intervene in order to discontinue is amenable to judicial review (para 37).

19.  We stress that this does not purport to be an exhaustive analysis of the reasoning either way or even a precis of all the arguments.  It is no more than suffices to assess whether the application for leave discloses a reasonably arguable case.

Conclusion

20.  It seems to us impossible correctly to conclude that the reasoning of the minority in Gujra does other than illustrate a reasonably arguable case.  Not only is that self-evident from the stature of the arguments’ proponents but also from the prima facie cogency of the arguments themselves.  In his judgment refusing leave, the Deputy Judge, having referred to Gujra, concluded that he was "satisfied that I should follow the majority decision”; but he failed to say why the reasoning of the minority did not give rise to a reasonably arguable case and he failed to analyse the assertions of illegality in the context of the Hong Kong setting; a setting which has its own specific constitutional provisions and its own sensitivities to prosecutorial decisions.

21.  The two relevant provisions of the Basic Law are articles 35 and 63.  Article 35 provides that Hong Kong residents shall have the right to access to the courts, and article 63 says that the Department of Justice "shall control criminal prosecutions, free from any interference.” It seems obvious that the one cannot be read with a blind eye to the other and the question of how the one sits with the other strikes us as an important constitutional question.  That fact and the obvious respectability of the dissenting views in Gujra persuaded us that the point raised as to the lawfulness of the policy clearly warranted the grant of leave.