韓仁生 v. 警務處處長

HCAL 1006/2022

[2023] HKCFI 1218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1006 OF 2022

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REASONS FOR DECISION

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A. Introduction

1.  By his Form 86 dated 27 September 2022, the Applicant seeks leave to apply for judicial review to challenge the result and classification of a complaint made by him against the Police.  The putative respondent is the Commissioner of Police (“Commissioner”).

2.  The complaint arose in the following circumstances:

(1)  On 1 September 2014, the Applicant took a bounced cheque of $600,000 to the Police, to report a case of obtaining property by deception.

(2)  The drawer of the cheque was a Mr Cheng, and the cheque had been provided for goods said to have been sold to Mr Cheng by the Applicant.

(3)  To assist in the investigation, the Applicant handed over the bounced cheque to the Police.

(4)  On 2 March 2017, the Police informed the Applicant that the criminal investigation had been completed, but the conclusion was that there was insufficient evidence to substantiate any criminal charge against anyone.

(5)  The Police then gave the cheque to Mr Cheng, on 2 May 2017.

(6)  The Applicant learned of that fact, when in March 2020 he made inquiry as to the whereabouts of the cheque.

(7)  On 17 April 2020, the Complaint Against Police Office (“CAPO”)  received the Applicant’s letter complaining about the Police giving the cheque to Mr Cheng.

(8)  On 9 December 2021, CAPO notified the Applicant that his complaint was classified as “no fault”.

3.  It is that decision (“Classification”)  which is the intended target of the judicial review challenge in these proceedings.

B.  Events after the Classification

4.  However, there were further events which occurred after the Classification.

5.  The events included as follows:

(1)  On 15 December 2021, the Applicant requested CAPO to review the Classification, but did not supply any additional materials.

(2)  On 26 April 2022, CAPO advised the Applicant that having reviewed the case, and in light of the fact that no new evidence or views had been expressed by the Applicant, CAPO concluded that the investigation result – and so the Classification – should remain unchanged.

(3)  On 22 August 2022, the Applicant referred to his 15 December 2021 letter, suggesting that he was yet to hear back from CAPO and requesting his case to be given fair treatment.

(4)  On 31 August 2022, CAPO replied that it had notified the Applicant of the result of his request on 26 April 2022, but that CAPO was writing again to inform him of the result.

(5)  On 27 September 2022, the Form 86 was issued by the Applicant in these proceedings.

(6)  On 30 September 2022, I gave directions for the Commissioner to file an initial response to the application.

(7)  On 3 November 2022, the Commissioner filed the initial response.

(8)  On 6 March 2023, I directed an expedited rolled up hearing of the application for leave to apply for judicial review and the substantive application for judicial review.

(9)  On 14 April 2023, CAPO wrote to the Applicant to inform him that, upon thoroughly reviewing the relevant evidence and after taking legal advice, CAPO had reclassified the Applicant’s complaint as “substantiated” (“Reclassification”), and that appropriate disciplinary action would be taken.

6.  I note that, amongst other things, CAPO has stated in the 14 April 2023 letter that:

(1)  the relevant police officer did not have any basis to think that the person who drew the cheque (i.e. Mr Cheng)  was the owner of the cheque, and that the police officer’s decision to return the cheque to that person (i.e. Mr Cheng)  was not safe; and

(2)  the Superintendent at the relevant police station agrees with CAPO’s findings.

7.  As a result, on 18, 20 and 24 April 2023, the Department of Justice also informed the Applicant of CAPO’s Reclassification of his complaint, and invited the Applicant to withdraw this present application.

8.  The Applicant has refused to withdraw the application.

9.  Therefore, the ‘rolled up’ hearing went ahead on 5 May 2023.  The Applicant appeared in person, and made oral submissions in support of his written submissions previously filed.  The Commissioner was represented by Mr Anthony Chan of Counsel.

10.  At the end of the hearing, I dismissed the application, with reasons to be handed down later (and to permit the reasons to be translated into Chinese, for the benefit of the Applicant).

11.  These are my Reasons for Decision.

C.  Application has been Rendered Academic

12.  In his skeleton submissions filed for the hearing, Mr Chan submitted that the Applicant’s grievance underpinning the present application has been effectively addressed by CAPO’s Reclassification of the Applicant’s complaint from “no fault” to “substantiated”, with appropriate disciplinary action to be taken.

13.  Therefore, he submitted that the present proceedings have been rendered academic, on the basis that they entirely lack utility because the Applicant has effectively achieved all that he could possibly achieved by applying for judicial review.

14.  I agree.

15.  The Applicant did not specify in his Form 86 the relief sought by him.  But, in any event, in fact, the likely maximum relief that the Applicant could have achieved in these proceedings would have been an order quashing the original Classification and a direction requiring CAPO to reconsider the matter (but probably without the Court dictating to CAPO what should be the result of any reconsideration).

16.  It is settled that, generally, the courts do not have jurisdiction to give an advisory opinion on hypothetical facts or disputes which have become academic.  However, it is also correct that, even if the real dispute that drove the parties to litigation are no longer in existence, if the relevant facts giving rise to the dispute were real and had actually taken place, the court has jurisdiction to hear and determine the question in issue. But, in deciding whether or not to do so, the court will closely examine the relevance or utility of any decision, and will hear the case where there is good reason in the public interest for doing so.

17.  I see no good reason why, in the public interest, the Applicant should be permitted to pursue the present proceedings, when (1) the Applicant has achieved all potential likely practical relief, (2) the factual basis for his application has fundamentally changed, (3) in effect, the main basis of the Applicant’s grievance prompting these proceedings has fallen away, and (4) the application has been rendered academic.

18.  Nor is it necessary or appropriate in the public interest to examine this case, so as to anticipate any future complaints, which should be considered on their own merits against their own particular circumstances.

D.  Timing of Application

19.  Mr Chan also makes complaint about the delay in bringing these proceedings by a Form 86 dated 27 September 2022 in relation to an intended challenge to a decision made some nine months earlier on 9 December 2021.

20.  Mr Chan says that the Applicant’s request for review on 15 December 2021, and CAPO’s reconsideration notified by letter dated 26 April 2022, cannot ‘reset the clock’.  Nor, he says, can CAPO’s later reiteration of that point in the letter dated 31 August 2022 (following the Applicant’s further letter of 22 August 2022).

21.  There is perhaps some force in the submissions. However, it seems to me that the question of any delay in bringing these proceedings is – perhaps save as to the question of costs – as academic as the substance of the application.  Therefore, I do not think I need to express any concluded view – though I might not have thought the delay necessarily fatal in this case, when measured against the merits.

E.  Result

22.  In the circumstances outlined above, the Applicant’s application for leave to apply for judicial review is dismissed.

23.  There is, therefore, no need to go on to consider any question of a substantive judicial review hearing.

24.  I note that the Applicant declined to withdraw the application after his underlying complaint was revisited by CAPO and reclassified.  Therefore, the rolled up hearing went ahead, and that gave rise to the incurring of costs by the Commissioner.

25.  However, on the chronology I have identified above, it might be thought that (only)  the bringing of the application has prompted CAPO to look again at the situation raised by the Applicant’s complaint, with the benefit of taking legal advice, and that has led to the reclassification of the complaint as being “substantiated”, with appropriate disciplinary action to follow.

26.  Therefore, as to costs, it seems to me in the broad exercise of my discretion that the appropriate order to make is that there be no order as to costs.

F.  Postscript

27.  Though not necessary or central to the above reasoning, I think it appropriate to record some of the submissions made by the Applicant at the hearing.

28.  Amongst other points, he said that:

(1)  he felt that that the Police had appeared biased against him, from the very beginning when he first reported his complaint about the bounced cheque;

(2)  after the original termination of the investigation initiated by the Applicant, his complaint to the Police Commander led to being given the cheque to give it to a different investigation team to continue the investigation;

(3)  whilst that investigation proceeded, the Applicant pursued the other party (i.e. Mr Cheng)  for repayment;

(4)  in the end, Mr Cheng agreed to make repayment, but insisted on getting back the original cheque before making the repayment;

(5)  when the Applicant asked for the return of the cheque, he was originally told that the Police were looking for it, but was later told that they had given the cheque to the other party (i.e. Mr Cheng);

(6)  having requested the Police to identify the basis, or the general police order, under which the cheque was returned to Mr Cheng, the Applicant received no reply;

(7)  the Applicant therefore wonders whether handing over the cheque (which was the Applicant’s property)  to another person without the Applicant’s consent was “theft”;

(8)  even when he complained about that matter, the Applicant found the officers dealing with the complaint to be “problematic”;

(9)  meanwhile, Mr Cheng has apparently become bankrupt and the account on which the cheque was drawn has been closed or cancelled;

(10)  therefore, in effect, giving the cheque to Mr Chen enabled the Applicant to be cheated.

29.  I acknowledge that some of these matters – and, in particular, the fact that giving the cheque to Mr Cheng with no basis for thinking he was the owner, and without the Applicant’s permission – might well be regarded as at least a significant contribution to the Applicant’s apparent failure or inability to have obtained repayment.

30.  The Applicant also stated that he considered the CAPO Classification of “no fault” as being problematic as well.  It might well be thought the Applicant is right, now that the Classification has been reconsidered following the commencement of these proceedings, and the Reclassification of “substantiated” has occurred, for the reasons given by CAPO in its 14 April 2023 letter (see above).

31.  However, these matters do not change the position that these proceedings have become academic, because any relief as might have been obtained by these proceedings has in effect already been obtained.  If there is to be any further relief, pursuit of that relief does not lie in these proceedings.