LEE SZE LUNG v. SOLICITOR GENERAL

HCAL 170/2019

[2020] HKCFI 149

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 170 OF 2019

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

Leave to apply for Judicial Review is refused.

Observations for the applicant:

Background

1.  The Applicant was convicted of rape in December 2009. His appeal was allowed by a majority of the Court of Appeal. It was held that a “genuine but mistaken belief” direction should have been given to the jury for their consideration. After a retrial, the Applicant was acquitted. He then applied to the Government for compensation under a Legislative Council Paper No. CB (4) 486/13-14(06) “Compensation for Wrongful Conviction” dated March 2014 (“2014 LC Paper”) and Information Note on “Compensation for persons wrongfully imprisoned – Information for claimants” published in June 2014 (“Information Note”). His application was refused by the Solicitor General. Consequently, the Applicant applied to this court for leave to judicial review the Solicitor General’s decision. More detailed background of the case can be found in para 1 to 13 of Form 86 dated 17 January 2019.

Grounds of Review

2.  The grounds of review as pleaded in the Form 86 are essentially as follows:

(i)  The Solicitor General erred in law in his interpretation of “serious default” as referred to at para 11(b) of the 2014 LC Paper.

(ii)  The Solicitor General erred in law in his interpretation of “outstandingly deserving cases” as referred to at para 11(c) of the 2014 LC Paper.

(iii)  The Solicitor General unreasonably decided not to interpret the ex gratia scheme properly and / or purposively as provided under para 11(b) and 11(c) of the 2014 LC Paper.

Discussion

3.  For the following reasons, this court finds the stated grounds of reviews are not reasonably arguable with realistic prospect of success.

4.  The omission of the “genuine and mistaken belief” direction was not inadvertent but deliberate, after submissions from the prosecution and the defence and a careful consideration by the trial judge. The decision was therefore a considered one. It is also pertinent to note that the decision to allow the appeal was not unanimous with Mr Justice Line dissenting.

5.  As pointed out in R on the application of Tawflick v Secretary of State for the Home Department [2001] ACD 28:

“Not every error by a judge should be considered exceptional. The Divisional Court in ex p. Garner was concerned to emphasize that a mere case of judicial error, such as a mistake in a summing - up or in a ruling as to admissibility, would not constitute exceptional circumstances.”

6.  In the present case, the carefully considered omission was no more than a mere judicial error, a mistake in summing up which the Court of Appeal routinely had encountered in dealing with appeals from the lower courts. The error was not blatant or obvious either as the Court of Appeal was divided on this issue. In the leave hearing, Counsel for the Applicant failed to point out any particular facts or circumstances which elevated this judicial error into an error that amounted to a “serious default” committed by the judge save and except pointing out the fact that the Applicant had been in custody for 21 months as a result.

7.  The Applicant’s continuous detention was ordered by the Court of Appeal after his application for bail pending appeal was refused by Mr Justice Stock VP (as he then was). His continuous detention was therefore not wholly contributed by the trial judge and furthermore should not be used to measure the seriousness of the trial judge’s conduct or default.

8.  Para 4(d) of the 2014 LC Paper stated clearly that compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge. In the Applicant’s case, the prosecution simply failed to prove the lack of consent, an element of the offence for rape.

9.  The Applicant’s further reliance on para 11(c) of the 2014 LC Paper in my view also did not take his case any further. The Applicant’s case, as stated above was of little different from any cases that the Court of Appeal routinely dealt with. His conviction and subsequent acquittal was the result of an “ordinary course of the criminal process” to which para 11(g) expressly excluded.

10.  Again Counsel for the Applicant failed to point out any particular facts or circumstances which demonstrated the “outstandingness” of the Applicant’s case. As a matter of fact, there was no exceptional circumstance in his case.

11.  As such, the Solicitor General had not erred in law in failing to properly interpret either the “serious default” or the “outstandingly deserved cases” requirement as referred to in the 2014 LC Paper.

12.  It is therefore not Wednesbury unreasonable for the Solicitor General to conclude that the applicant is not entitled to compensation from the Government under the ex gratia scheme.

13.  Further, in the course of the leave hearing, Counsel for the Applicant also sought to argue that the policy with the established guideline set out in the 2014 LC Paper was inconsistent with, or different from the policy stated in 1987 and that the Applicant’s application was made under the 1987 policy which the Solicitor General should have but had failed to consider. This argument, of course, is very different from the case stated in the Applicant’s Form 86.

14.  In the Applicant’s pleaded case, there is no challenge as to the legality of the 2014 LC Paper. On the contrary, the Applicant stated categorically in footnotes 3 and 29 of his Form 86 that the policy had been stable since 1988 and there was an inference that the established guideline had remained since 1988. There was also nothing in the Form 86 or Applicant’s skeleton submission suggesting a change of course. In the premises, this argument is not open to the Applicant to pursue as this is not pleaded as a ground of review in the Form 86.

15.  In conclusion, leave is refused. The Applicant ought to pay the costs of the Putative Respondent, to be taxed if not agreed.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence.

Form CALL-1