D v. DIRECTOR OF PUBLIC PROSECUTIONS

HCAL 88/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 88 OF 2015

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DECISION

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1.  This is an application for leave to judicially review the decision of the Director of Public Prosecutions not to prosecute an alleged case of indecent assault.

2.  The facts giving rise to the case as disclosed by the papers concern the applicant, a domestic helper, being allegedly indecently assaulted on various occasions by her then male employer inside a small domestic flat.  She at the time worked for a couple and lived in the flat together with them and their family.  The alleged incidents of indecent assault involved the husband exposing his genitals and masturbating himself behind her. 

3.  The first occasion took place in the early evening on 26 February 2014.  The applicant was tending to the couple’s three-year-old daughter when the husband came up behind her and exposed his genitals and masturbated himself.  They both had their back to him but she could see what he was doing from the reflection on the television screen which was not on at the time.  Not long after, he did this again in the kitchen.  He came up behind her and exposed his genitals and masturbated himself.  She could see what he was doing from the reflection of the glass cabinet. 

4.  The applicant was very frightened and on both occasions she dared not turn around and confront him as she feared that he would sexually assault her. 

5.  This pattern of behaviour by the husband continued the next day on 27 February 2014.  In the early afternoon, the applicant was tending to the three-year-old daughter when she saw from the periphery of her vision the husband touching his genitals. 

6.  On the following day, 28 February 2014, the applicant was eating lunch when the husband came up behind her.  She could sense that he was staring at her and she could hear him breathing heavily. 

7.  After each of these occasions, the applicant immediately contacted friends, telling them what had happened and expressing her concerns and fear. 

8.  The applicant was advised to take a video recording to capture and provide proof of what the husband was doing.  So on 3 March 2014, she placed her phone on the microwave in the kitchen with the video recording function turned on.  The video footage captured the husband exposing his erect penis a short distance behind her which he directed towards her while she was working in the kitchen.

9.  The matter was then disclosed to the wife by the applicant in the company of a social worker and later after the video recording had been shown, the husband apologised to the applicant for his conduct in the presence of the social worker.  She then resigned from her employment with the couple.

10.  The matter was reported to the police on 8 March 2014 but soon after in a letter dated 24 April 2014, the applicant was advised by the police that upon legal advice there was insufficient evidence to support a charge and that there would be no prosecution action at that stage.

11.  There followed a letter dated 26 May 2014 from Mr Andrew Bruce, SC, to the Director of Public Prosecutions requesting that the case be reconsidered and setting out the relevant evidence and legal principles for the offence of indecent assault.  In a reply letter dated 3 February 2015, it was stated, amongst other things, that: “The totality of the evidence is equivocal as to whether (the husband) knew or appreciated the risk that your client could and did see his acts from the reflection of the TV or glass of the cupboard.”  This brought an immediate detailed response from the solicitors for the applicant dated 6 February 2015, suggesting that the wrong test for recklessness had been applied in consideration of the case.  In a reply dated 18 February 2015, it was stated, amongst other things, that in practical terms, there was little difference between them on the test of recklessness and the totality of the evidence was equivocal as to whether the husband was reckless in acting as he did, although this was only in reference to the first incident.

12.  The applicant seeks leave to apply for judicial review of the Director’s decision refusing to prosecute on 3 and 18 February 2015. 

13.  It has been explained that the brief delay in filing the notice of application for leave for judicial review was a result of legal aid being granted to the applicant on 4 June 2015, having applied for legal aid on 21 April 2015.  Given those circumstances and the relative brief delay involved, I grant an extension of time to apply for leave.

14.  The issue of whether there was an alternative remedy available to the applicant by the means of a private prosecution was addressed.  Whilst the applicant could potentially take out a private prosecution, she would not be able to obtain legal assistance for it, and in any event, the Director could in accordance with his view not to prosecute take over the prosecution and terminate it.  See sections 14 and 15 of the Magistrates Ordinance, Cap 227.

15.  In deciding this application, I need to be satisfied that the grounds for judicial review are reasonably arguable as propounded in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

16.  Mr Gerry McCoy, SC, and Ms Emma T C Tsang, for the applicant, made a number of criticisms about the decision not to prosecute as contained in the two letters of 3 and 18 February 2015. 

17.  Mr McCoy argued that the contents of the letters were superficial and did not condescend to any reasons.  He pointed out that the letters assert a conclusion of insufficiency of evidence but no reasons are given as to why the evidence is considered insufficient.  He also pointed out that the focus of the second letter seemed only to be on the first incident alleged by the applicant and there appeared to be little if any appreciation or evaluation of the separate incidents or analysis in terms of similar fact evidence.  He submitted that the decision not to prosecute was wrong based on the materials and the policy of the prosecution authority.  He argued that the decision constituted an error of law when on the materials only one answer was possible and yet another one was reached.  See Edwards v Bairstow [1965] AC 14. 

18.  Mr McCoy’s most strident criticism was that the decision misunderstood or misapplied the test for recklessness and as a consequence was clearly wrong.

19.  Mr McCoy referred to the test of recklessness as elucidated in Sin Kam Wah & Anor v HKSAR (2005) 8 HKCFAR 192 which in the circumstances of an assault involves the defendant having foresight of the possibility that the complainant would apprehend the immediate and unlawful application of violence and taking that risk.  He explained that no specific intent was required and that as long as the defendant is subjectively reckless as to the circumstances, that is, sufficient mens rea for the substantive offence and also for an attempt to commit it.  He further explained that a reckless indecent assault would be satisfied if the defendant engaged in indecent conduct towards the victim, which the defendant realised may create in the victim a reasonable fear of immediate physical contact of an indecent nature by the defendant against the victim, and which in fact had that result, even though the defendant did not actually intend that result.  See R v Court [1989] 1 AC 28.

20.  Mr Duncan argued that it is not reasonably arguable that the Director has erred in his understanding of the law.  He submitted that the decision not to prosecute was made on the basis of evidential, not legal, considerations.  He referred to the comments in the letters that the decision was based on the totality of the evidence but this was in relation to whether or not the husband was reckless and it is in my view reasonably arguable that the Director has erred in his understanding and application of the law in this respect.  The question is then whether this led to a perverse decision not to prosecute.  See R v Director of Public Prosecutions, ex p C [1995] 1 Cr App R 136; R v Director of Public Prosecutions, ex p Manning [2001] QB 330 and R (Pullen) v Health and Safety Executive [2003] EWHC 2934 (Admin). 

21.  A key issue in this application is whether the decision of the Director not to prosecute is amenable to challenge by judicial review.  Mr McCoy argued that it is, or at least it is reasonably arguable that it is, whereas Mr Duncan argued that it is not, except for the rare situations as stated in RV v Director of Immigration [2008] 4 HKLRD 529.

22.  The case of Keung Siu Wah v Attorney General [1990] 2 HKLR 238 has been relied upon as the authority for the proposition that the decision whether or not to prosecute is not subject to judicial review.  That decision was considered in the context of a new constitutional order as provided by the Basic Law in RV where Hartmann J in a review of authority here and elsewhere concluded that:

“65.  I am bound therefore by the judgment of the Court of Appeal in Re C (Bankrupt) to recognise that art.63 of the Basic Law enshrines the independence of the Secretary for Justice to control criminal proceedings as he thinks best and that, in the exercise of that power, the Secretary is free of both political interference and “judicial encroachment”.

66.  But it seems to me that the judgment of the Court of Appeal recognises that today the power of the Secretary for Justice to control criminal prosecutions is a constitutional power.  It is a power bestowed by the Basic Law and defined by that Law.  As such, it must be exercised within constitutional limits.  In that fundamental respect, the source and nature of the power must be different from the source and nature of the power as it was exercised when the Court of Appeal gave its judgment in Keung Siu Wah v A-G.

67.  If the power must be exercised within constitutional limits, it seems to me that it must be for the courts, in any given case, to determine whether the exercise of that power has exceeded the constitutional limits or remained within them.  Put another way, the limits of the constitutional power are defined by the constitution itself.  Any definition of those limits must therefore require an interpretation of the Basic Law and that is a function of the courts.  In this regard, see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4 (at p.25):

‘In exercising their judicial power conferred by the Basic Law, the courts of the Region have a duty to enforce and interpret that Law. ... In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law.’

68.  In my judgment, it must therefore be the case that, since the Basic Law came into effect, this Court has the power to determine whether the Secretary for Justice, in his control of criminal prosecutions, has, or has not, acted within the limits of his constitutional power.  The means for that determination is judicial review.  To come to this conclusion is not a defiance of binding precedent, it is recognition of a new constitutional order and the duties of our courts in respect of that new order.

69.  The more difficult question, in my view, is the determination of what are the constitutional limits, remembering that the Secretary for Justice must be able to control criminal prosecutions free of judicial encroachment.

70.  In addition, any interpretation of the Basic Law, which requires a purposive approach, must recognise that continuity is integral to an understanding of its structure.  By way of illustration, art.8 provides that:

‘The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region.’

71.  Clearly, the Secretary would act outside of his powers if it could be demonstrated that he has done so not on an independent assessment of the merits but in obedience to a political instruction.  Article 63 specifically forbids such interference with the exercise of his powers.

72.  Equally plain, in my view, is the conclusion that the Secretary would act outside of his powers if he acted in bad faith, for example, if one of his offices instituted a prosecution in return for payment of a bribe.

73.  I am also of the view that a rigid fettering of his discretion would fall outside of the Secretary's constitutional powers; for example, a refusal to prosecute a specific class of offences detailed in a statute lawfully brought into law.  Such an action would undermine the constitutional functioning of other organs of state: the Executive and the Legislature.

74.  It is not possible, of course, to foresee and classify every circumstance in which this Court can hold, without impermissible encroachment, that the Secretary has acted outside of his constitutional powers. There be exceptional circumstances that arise.  But this proviso is not to be read as somehow acting to reduce the role of the Secretary to that of an ordinary administrator.  The prosecutorial independence of the Secretary is a linchpin of the rule of law.  That is the way it has been prior to the Basic Law and the way it now remains.  The exceptional circumstances of which I speak must be truly exceptional and must demonstrate that the Secretary has acted outside of his very broad powers, powers that, as Viscount Dilhorne said (see para.60 above), he exercises free of direction by his ministerial colleagues and free also of the control and supervision of the courts.

75.  In summary, I am satisfied that, under the Basic Law, the Secretary’s control of criminal prosecutions is amenable to judicial review but only to the very limited extent that I have described.”

23.  Hartmann J referred to the judgment of Stock JA (as he then was) in Re C (A Bankrupt) [2006] 4 HKC 582 and to his observation at paragraph 22 that:

“… There is also authority for the proposition that ‘dishonesty, bad faith or some other exceptional circumstances’ might found a basis for challenge in the courts of the exercise in a particular case of a prosecutorial prerogative: see R v DPP, ex p Kebilene & Others; though in this regard see also Kwan Pearl Sun Chu v Department of Justice.”

24.  From the above, it would appear that the principle as stated in Keung Siu-wah has been qualified and reviewed in a new constitutional and modern context.  It is noteworthy that there had been comments by the Court of Appeal questioning the limitation to the circumstances to challenge a decision not to prosecute by judicial review.  See Kwan Sun Chu Pearl v Department of Justice [2006] 3 HKC 207 at paragraphs 5-7, per Tang JA (as he then was) and Ma Pui Tung v Department of Justice,CACV 64/2008, 23 September 2008, unreported, at paragraph 10, per Rogers VP. 

25.  Mr McCoy in his submissions relied on a line of recent authority that has held that the decision not to prosecute is amendable to judicial review but that the power to do so is one to be sparingly exercised.  He relied on the Privy Council decision of Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343 which he argued disapproved Keung Siu Wah.  See also Matalulu v Director of Public Prosecutions [2003] 4 LRC 712; [2003] 2 HKC 457.  Mr Duncan on the other hand made references to passages in the authorities that he submitted limited the circumstances in which a review of a decision not to prosecute could take place.

26.  Without wanting to descend to detailed analysis of the legal arguments submitted by the parties on this issue, it would appear to me that the question of amenability to judicially review a decision of the Director not to prosecute is reasonably arguable both as a matter of principle and in the circumstances of this case.  It is reasonable arguable at least whether the decision not to prosecute in this case comes within the exceptional circumstances as stated by Stock JA in Re C (A Bankrupt) or has exceeded the constitutional limits as stated by Hartmann J in RV. 

27.  In light of the foregoing, I am satisfied that the grounds of review are reasonably arguable and that leave should be granted.  I direct that the matter be set down for a substantive hearing, as soon as reasonably possible.