LAM WAI WING v. THE CORONER’S COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION

HCAL 2408/2025

[2025] HKCFI 5661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2408 OF 2025

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D E C I S I O N

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A.  Introduction

1.  This application for leave to apply for judicial review and the application for interim relief arise in relation to Coroner’s Court death inquest proceedings, relating to the death of the late Mr Chan Fai Wong (“Deceased”), in which proceedings the Applicant was an interested party.

2.  The Deceased was a taxi driver. In the evening of 11 November 2012, he was involved in a scuffle or altercation with his passengers at the Kowloon side entrance of the Western Harbour Tunnel. During the incident, the Deceased fell to the ground and claimed to have hit his head. The Police were called, and the Deceased was arrested. During the arrest, police officers including the Applicant attempted to bring the Deceased into a police vehicle. The Deceased resisted, and the officers managed by force to handcuff him and to carry him into the vehicle.

3.  The Deceased was subsequently hospitalised, where an MRI scan revealed a cervical dislocation and spinal cord injury. In particular, the Deceased suffered from right C5/6 facet joint dislocation and left C5/6 facet joint subluxation with spinal cord compression and oedema. Whilst serial halo traction successfully reduced the C5/6 facet dislocation, the Deceased later developed C5/6 disc prolapse causing persistent cord compression. Only conservative treatment could be adopted and, sadly, his condition deteriorated into tetraplegia, and he died of bronchopneumonia on 12 December 2012.

4.  There have since been two death inquests, inquiring into the circumstances leading to the death of the Deceased. One issue arising has been whether the Applicant, whilst carrying the Deceased, deliberately applied a chokehold to his neck, thereby causing the cervical injury that led to his death.

5.  The first death inquest was held between 2 and 24 October 2018 before Coroner Ms Ada Yim and a jury. The jury returned a verdict of ‘unlawful killing’ by a majority of 3-2. On 13 March 2020, the Applicant sought leave to apply for judicial review of that verdict. He also sought an interim injunction to prohibit the initiation of prosecution against him pending the determination of the judicial review. On 7 May 2020, leave was granted for the application for judicial review by Li J, but the interim injunction was refused. On 23 December 2022, Wong J allowed the substantive judicial review application, quashing the jury’s verdict and ordering a fresh inquest.

6.  The second death inquest was conducted between 4 June and 31 July 2025 before Coroner Mr Raymund Chow. The jury returned a verdict of ‘unlawful killing’ by a majority of 4-1.

7.  Now, by Form 86 dated 28 October 2025, the Applicant seeks leave to apply for judicial review so as to challenge the second verdict. He also seeks interim relief in the form of an injunction restraining the Department of Justice from taking any further step in the prosecution of him until after the determination of this application for judicial review or until further order. The Form 86 also asks for an oral application for leave.

8.  I gave directions for today’s hearing to be fixed to deal with the application for interim relief. At the hearing, the Applicant has appeared in person. The Secretary for Justice (“SJ”) (acting in his prosecutorial capacity) has been joined as Putative Interested Party, and has been represented today by Mr Wilson Lam, Senior Public Prosecutor. He has done so with the benefit of written skeleton submissions. The Putative Respondent’s presence has been excused.

9.  Though originally fixed to deal with the application for interim relief, at the beginning of the hearing I indicated to the Applicant that the hearing could be treated also as his requested oral hearing of the application for leave to apply for judicial review.

10.  The Applicant then asked me to adjourn the whole hearing, that is both his application for leave to apply for judicial review and his application for interim relief, pending his seeking legal assistance and representation. He explained that since the second verdict was given at the end of July 2025, he has been carefully considering his position with his department (i.e. the Police Force, in which he is still a serving officer), but that the hoped-for documents have not yet been provided.

11.  As a result, the Applicant filed his Form 86 shortly before the expiry of the long stop three-month period ordinarily applicable to the commencement of an application for leave to apply for judicial review. However, on the same day, the Applicant sought legal assistance which request is apparently being processed through the Civil Service Bureau. The Applicant told me that he anticipated the legal assistance might be approved within one to two months.

12.  In response, Mr Wilson Lam indicated that the SJ had no submission to make as to whether the application for leave to apply for judicial review should be adjourned. But he submitted that the application for interim relief could and should be dealt with today.

13.  Having carefully considered the matter, it seemed to me to be appropriate to permit an adjournment of the application for leave to apply for judicial review. Notwithstanding that it is now several months since the impugned verdict was given, and these judicial review proceedings seem to have been launched simply because the Applicant does not like the verdict, rather than because he has found in the documents any proper basis to challenge it, I accept this matter is of significant importance to everyone concerned, not just the Applicant.

14.  Lest it be thought that applicants for leave to apply for judicial review can file a short Form 86, which fails to comply with the mandatory requirements, but is hoped to be treated as some kind of ‘placeholder’ until a proper application is filed, that is simply not correct. Ordinarily, applications must be made in time and fully formed. But, in the present circumstances, I exercised my discretion to permit a little more time and so to adjourn the oral hearing of the application for leave to apply for judicial review. In order that this matter does not simply proceed on an open-ended basis, I fix 10 am on 28 January 2026 as the date for the oral hearing of that application (with one hour reserved).

15.  However, I was satisfied that the application for interim relief was sufficiently stand-alone or separate that it might appropriately be dealt with today.

16.  The hearing proceeded on that basis. Though he had seen Mr Wilson Lam’s skeleton submissions, the Applicant had no submission to make as regards the application for interim relief. Mr Wilson Lam was content to adopt those skeleton submissions for the purposes of the hearing.

17.  Therefore, having considered the submissions made, this is my Decision.

B.  Intended Grounds of Review

18.  Before turning to the interim application, it can be noted that the Applicant has put forward the following three grounds on which he seeks his relief:

(1)  Illegality (Error of facts/not taking into relevant considerations/taking into account irrelevant considerations).

(2)  Irrationality (Failure to balance relevant considerations/flaws in logic and reasoning/decisions which rest on inadequate evidence or error of fact).

(3)  Procedural Impropriety.

19.  The Applicant’s supporting affirmation states that the affirmation is made in in support of the application for leave to apply for judicial review “of the findings of the Coroner’s court”. The affirmation purports to confirm the factual assertions – apparently either those contained in the affirmation itself and/or in the Form 86 – but there are in fact no such factual assertions in either document. There are also no exhibits to the affirmation.

20.  Therefore, the suggested public law grounds set out merely read as generic descriptions of the type of public law grounds which conventionally arise on an application for leave to apply for judicial review. There is no indication whatsoever how any of them might specifically apply to the facts and circumstances of this case, and the intended challenge to the verdict.

21.  Against the principles to which I shall next turn, this is an inauspicious start to the Applicant’s application for interim relief, and indeed for the grant of leave to apply for judicial review. However, on the latter point, and because I have agreed to adjourn the application for leave to apply for judicial review, I say nothing further.

C.  Applicable Principles

22.  It is well established that the trite American Cyanamid principles governing the grant of an interlocutory injunction apply to the grant of interim injunctive relief sought in public law cases, subject to necessary modifications. The basic principles are that the court must address: (1) whether there is a serious issue to be tried; (2) if so, whether damages are a sufficient remedy for either party; and (3) if damages are not sufficient for either party, whether the balance of convenience should lie in favour of granting or not granting the interim relief. As with all interlocutory applications, the ultimate consideration is whether the risk of injustice appears greater if the injunction is granted but later turns out to have been wrongly granted, or if the injunction is refused but later turns out to have been wrongly refused.

23.  The modifications applicable in the context of judicial review include that: (1) the applicant must demonstrate more than a serious issue to be tried, and must establish a strong prima facie case that the decision on the challenge is unlawful; (2) the assessment of the balance of convenience must encompass the wider public interest, rather than just the interests of the parties to the application; (3) the decision to grant or refuse relief typically turns less on the adequacy of damages, but more on the balance of convenience test; (4) save in exceptional circumstances, interim relief may only be granted if leave to apply for judicial review has been obtained; and (5) even where leave is granted, the existence of an early hearing date for the substantive judicial review is a good reason to refuse the interim relief.

D.  Whether to Grant Interim Relief

24.  The SJ opposes the application for interim relief on various grounds:

(1)  First, a judicial review of a prosecutorial decision is rare, so that there must be truly exceptional circumstances to justify judicial intervention, and that requirement is not satisfied in this case.

(2)  Secondly, the pre-emptive nature of the interim relief sought by the Applicant warrants particular scrutiny.

(3)  Thirdly, the interim relief sought is not rationally connected to the substantive judicial review, and an interim injunction is not necessary to preserve a status quo.

(4)  Fourthly, the assessment of the balance of convenience, on the Applicant’s anticipated arguments, essentially go to the sufficiency of evidence and/or the fairness of prosecuting him, which are capable of being addressed (perhaps more properly addressed) in any criminal proceedings.

(5)  Fifthly, the Applicant’s identical application for an interim injunction was refused in the previous judicial review proceedings.

25.  I broadly accept those submissions.

26.  First, it is indeed rare for a Court exercising its judicial review jurisdiction to intervene in a prosecutorial decision. As the law now stands in Hong Kong, prosecutorial decisions made by the Department of Justice (“DoJ”) are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality.

27.  That is a result flowing from Article 63 of the Basic Law, which states that it is the DoJ which shall control criminal prosecutions, free from any interference. In other words, the power to control criminal prosecution has been constitutionally bestowed upon the DoJ and can be reviewed only on the basis that the DoJ has exceeded the constitutional limit of the broad power given to it. There is no exhaustive list where it might be said the DoJ has exceeded the constitutional powers granted to it. But, examples include where it has acted under political instructions or acted out of bad faith.

28.  Neither of those examples is put forward in this case. The Applicant has sought to raise – albeit by generic description – only conventional administrative law grounds. None of them could be framed as unconstitutionality.

29.  Secondly, the terms of the interim injunction sought by the Applicant would seek prospectively to restrain the SJ from taking any further step in the prosecution, preventing him from acting on any evidence or public interest considerations, constituting a severe encroachment on his constitutional domain. I see no possible argument that any such encroachment is or may be appropriate in the present circumstances. I also note that no actual prosecution has yet been commenced.

30.  Thirdly, the intended judicial review proceedings are brought to challenge the coronial process in the second death inquest proceedings, and the verdict reached. As Mr Wilson Lam submitted, even if successful, the remedy would be to quash the inquest verdict (which is precisely the remedy the Applicant seeks). But, that would have no logical bearing on a separate criminal trial, which would be conducted before a different Judge and jury, and which trial would be governed by its own rules of evidence and procedure.

31.  Fourthly, I accept that the potential criminal proceedings arising upon a prosecution would provide an available alternative forum in which the material facts and evidence would be examined, with the benefit of procedural rules which are well-established to ensure the fairness of the process. That fact strongly militates against the need for or propriety of judicial interference by a civil Court exercising its judicial review function over prosecutorial decisions by the prosecuting authorities (where judicial review is properly ordinarily thought of as a remedy of last resort).

32.  However, I give no particular weight to the refusal of the interim injunction application in the previous judicial review proceedings. Those proceedings were dealing with a different set of underlying facts and circumstances, though it may be fair to assume that the Judge in that case was applying the settled principles I have identified above.

33.  Lastly, it seems to me that the interim relief also falls to be refused because (1) leave to apply for judicial review has not yet been obtained, and (2) on the basis of what is apparently essentially only a placeholder Form 86, it is at least far from clear that leave to apply for judicial review would in fact be granted.

E.  Result

34.  For those reasons, the application for interim relief is dismissed.

35.  As to costs, I accept that the costs of the interim relief application should be paid by the Applicant to the SJ, to be summarily assessed. All other questions of costs, if any, are reserved.