郭卓堅 v. 元朗區指揮官李偉文先生 AND OTHERS

HCAL 2216 & 2842/2019

[2020] HKCFI 461

HCAL 2216/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2216 OF 2019

________________________

AND

HCAL 2842/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2842 OF 2019

________________________

___________________

D E C I S I O N

___________________

1.  In these applications for leave to apply for judicial review, the Applicants complain about the “inaction” or “delayed action” of 3 police officers in relation to what is commonly referred to as the “7.21 Incident”, in particular their failure to take prompt action at attend  Yuen Long Station to stop or prevent innocent civilians from being attacked by some “white-clad” assailants:

(1)     In Mr Kwok’s Form 86 in HCAL 2216/2019 dated 5 August 2019, Mr Kwok asked the court to find that the 3 police officers were guilty of the offence of “misconduct in public office”, and/or some other unidentified offence(s) under the Police Force Ordinance, Cap 232.

(2)     In Mr Yip’s Form 86 in HCAL 2842/2019 dated 27 September 2019, Mr Yip asked the court to find that the 3 police officers’ negligence or inaction constituted “police misconduct” which should be censured and corrected.  In his letter dated 3 January 2020, Mr Yip applied to amend the relief sought, and asked the court to order the Police to publish an apology to the public, including the victims of the 7.21 Incident, in a newspaper.

2.  The court has received the Initial Responses of the Putative Respondents dated 4 October 2019 and 20 November 2019, and further responses or comments of the Applicants dated 21 December 2019 and 3 January 2020 respectively.

3.  The intended applications for judicial review are procedurally flawed and misconceived.

4.  First, the Applicants have failed to follow the proper procedure under Order 53, rule 3(2)(a) of the Rules of the High Court, Cap 4A, which requires the grounds of judicial review to be set out in the Form 86.

5.  Second, the Applicants do not have a sufficient interest in the matter to which the applications relate.  The Applicants were not involved in the 7.21 Incident themselves.  They do not even claim to have been present when the 7.21 Incident occurred, or personally seen or witnessed what occurred at Yuen Long Station in the evening of 21 July 2019.  It is apparent from their affirmations that their knowledge of the incident is based purely on some newspaper reports of the incident.  Mr Kwok says that he is a permanent member of the Democratic Party, while Mr Yip claims to be just an ordinary Hong Kong citizen and resident.  It is clear that there are other persons directly involved in, or affected by, the 7.21 Incident who are in a much stronger position than either Mr Kwok or Mr Yip to take proper civil action against the Police, eg a writ action for damages assuming that they have a good cause of action against the Police (see paragraph 8 below).

6.  Third, the civil court in an application for judicial review cannot determine whether a person is guilty of a criminal offence, including the offence of misconduct in public office.  The question of whether a person is guilty of a criminal offence can only be determined by a criminal court, applying the appropriate standard of proof (ie beyond a reasonable doubt).

7.  Fourth, the civil court in an application for judicial review has no original jurisdiction to determine whether a police officer is guilty of misconduct (whether by reason of his negligence, inaction or otherwise), or power to make an order to require the Police to publish a public apology.  The judicial review court can only determine whether a decision which is amenable to judicial review is unlawful or Wednesbury unreasonable, or has been reached in a procedurally unfair manner.

8.  The court is aware that there are existing civil proceedings commenced by 7 individuals who claim to be victims of the 7.21 Incident against the Commissioner of Police seeking damages for personal injuries (HCPI 26/2020).  The court has not made any findings on the substantive merits of the complaints against the Police in respect of the 7.21 Incident.  Nothing stated herein should be taken to affect the claims in HCPI 26/2020, which will have to be determined in accordance with the usual procedures of the court.

9.  The intended applications for judicial review are not reasonably arguable and do not have any realistic prospect of success. Accordingly, the applications for leave to apply for judicial review are dismissed, with no order as to costs.