KWAN PEARL SUN CHU v. DEPARTMENT OF JUSTICE

CACV 314/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2005

(ON APPEAL FROM HCAL NO. 56 OF 2005)

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J U D G M E N T

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Hon Yeung JA:

1.  I would dismiss this appeal for the reasons given by Tang JA.

Hon Tang JA:

2.  The applicant has applied for an order of mandamus to compel the Department of Justice to reverse its decision and its advice to the police not to persecute one Wong Kwun-wai, in relation to the applicant’s allegation that Wong had assaulted her in the evening of 22 June 2004 in Hung Leng Village in the New Territories.

3.  The applicant’s allegation is allegedly supported by a video recording of the event of that evening which has been produced as a DVD.  We have watched the DVD and agreed with Hartmann J that its content does not provide any real support for her allegation.

4.  The judge refused leave.

5.  First on the basis that on the authority of Keung Siu Wah v Attorney General [1990] 2 HKLR 238, a decision of this court, which is binding on him, that the decision of the Department of Justice whether or not to prosecute is not amenable to judicial review.

6.  Secondly, taking into account the development of the law since Keung Siu Wah, especially in England, that judicial review might be available if dishonesty, bad faith, or some other exceptional circumstance could be shown (see the case of R v Director of Public Prosecutions ex parte Kebeline (HL) [2000] 2 AC 326), the judge would also refuse leave because the applicant could not show that this application possessed any exceptional circumstance.

7.  I agree with the decision of the judge.  Whether Keung Siu Wah v Attorney General precludes judicial review in relation to the decision of the Department of Justice not to prosecute whatever the circumstances is an open question so far as the Court of Final Appeal is concerned and it may be that despite Young v Bristol Aeroplane Co Ltd [1944] KB 718 CA, the matter is open to review by this court.  It is however unnecessary for me to express any definite view on the matter because I am of the view that even if judicial review is available here as in England, this is not a case for leave.  The application has no basis and is hopeless.

8.  Today, the applicant, through her consultant Mr Man, repeated her allegation of dishonesty against the police, in relation to the Department of Justice’s claim that they had her medical report when the decision not to prosecute was made.  I do not believe I need to do any more than to repeat what the judge said in his judgment at paras. 11 and 12, which read:

“11.   Mr Man has today, in very emotive terms, attempted to show that there has been some sort of collusion between the police and the Department of Justice, indeed that counsel in the Department of Justice have not been honest in saying that they had available to them all the evidence in coming to their decision.  Mr Man has said that when the police file was considered by the Department of Justice, counsel would not have had the medical documents before them even though they have insisted that such documents were in the file.  Mr Man has a formal typed report which bears a date after the decision of the Department of Justice not to prosecute.  There appears to be a misunderstanding.  Mr Saw has shown me a medical examination form typical of the type that is sent to the Department of Justice by the police when advice is sought.  That form, he has said, was sent with the original police file.  The form is handwritten, clearly a copy of the original form made out by the doctor at the hospital at or about the time the applicant was treated.  It speaks for itself, making it clear that, on original examination at the Accident & Emergency Department, there were injuries to the right ankle showing tenderness, swelling and possible haematoma; that they were fresh, and that the allegation made by the applicant was that the injuries resulted from an assault.  That handwritten form is no different from Mr Man’s later typed letter.

12.    Suffice to say that I am satisfied there is nothing in the allegation made that counsel have lied in respect of medical evidence.  It seems to me that the applicant and Mr Man have made their allegations out of desperation.  While I appreciate their deep feelings, it seems to me that they have lost all objectivity.”

9.  Mr Man has also attempted to show that there was a further misrepresentation before the judge and that there was confusion between the medical examination form and the medical report.  However, he does not contend that the contents of two documents are different.  I am convinced that there is nothing in this point.

10.  It is obvious that the applicant feels very strongly about the matter, but strong feeling is not a substitute for evidence, so I would dismiss this appeal.