NG SHEK WAI v. INDEPENDENT COMMISSION AGAINST CORRUPTION

HCAL 502/2017

[2018] HKCFI 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 502 OF 2017

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D E C I S I O N

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1.  The applicant, Ng Shek Wai, lodged a complaint with the Independent Commission Against Corruption (“the ICAC”) against one of its officers which was eventually rejected.  He felt aggrieved by the decision and as a consequence initiated judicial review proceedings.  In his application for leave to apply for judicial review he has not disclosed the details of his complaint but rather has sought to challenge the general procedures employed by the ICAC when handling complaints against its officers. 

2.  He requested an oral hearing if the Court was inclined to reject his application.  In the circumstances, a hearing was held, at the conclusion of which I said that I would hand down my decision which I now do.  I note that subsequent to the hearing the applicant filed a further written submission on 20 February 2018. 

Background facts

3.  On 24 June 2016, the applicant filed a complaint of corruption with the ICAC against one of its officers.  Some days later, on 29 June 2016, the applicant was interviewed by two ICAC officers from the Internal Investigation and Monitoring Group, known as L Group.  From the papers filed, he states that he was in possession of certain documents that were material to his complaint.  During the interview, he was requested by the ICAC officers to provide the documents to them.  He refused to hand them over and he was accordingly advised that if he did not do so his complaint could not proceed to the stage of seeking a decision from the Secretary for Justice as to who would have conduct of the investigation into the complaint.

4.  On 23 August 2016, two different ICAC officers conducted a further interview of the applicant.  No request was made for the documents, nor was a formal statement taken from the applicant.  The applicant states that at the end of the interview he was of the belief that there would be another interview concerning the withheld documents.

5.  On 7 October 2016, the applicant telephoned one of the officers to inquire about his case who told him that they would not interview him further and that the complaint had proceeded to internal disciplinary investigation.  The applicant queries how could the complaint proceed to investigation without a formal statement from him and the withheld documents. This resulted in yet another complaint being filed by him with the ICAC.

6.  On 24 October 2016, another ICAC officer contacted him to explain the procedure of seeking a decision from the Secretary for Justice to investigate the complaint.  It was pointed out to the applicant that there was no need for him to hand over the withheld documents until there was a decision from the Secretary for Justice.  In the meantime, he was informed that the internal disciplinary investigation would be put on hold.

7.  On 8 November 2016, the applicant was interviewed by two ICAC officers who took a formal statement from him.  At the oral hearing, the applicant confirmed that the statement contained full details of his complaint and reflected the contents of the documents even though he had not handed them over to the ICAC officers.

8.  On 10 May 2017, one of the ICAC officers called the applicant to inform him that there would be no investigation into his complaint of corruption.  The applicant has not disclosed what was discussed between him and the ICAC officer. 

9.  On 1 June 2017, the applicant wrote to the ICAC and he states that he asked for an explanation.  The applicant has not produced a copy of this letter. 

10.  On 6 June 2017, the Acting Principal Investigator of L Group wrote a letter in reply, in which he confirmed with the applicant that he was aware that L Group had in accordance with established procedure sought legal advice from the Department of Justice on whether L Group should commence a criminal investigation into the allegations made by him.  The Acting Principal Investigator stated that in late April 2017 L Group had received legal advice that did not recommend a criminal investigation which he noted had been conveyed to the applicant on 10 May 2017.  He further stated that “the details of the legal advice” could not be disclosed to him because of legal professional privilege.  He finally noted the applicant’s intention to withhold the non-criminal investigation and he was given the name of an officer if he wished to pursue it in the future.  No particulars have been given to me by the applicant about the non-criminal investigation. 

11.  On 19 July 2017, the applicant wrote to the ICAC in which he states he demanded an explanation.  The applicant has not produced a copy of this letter. 

12.  On 21 July 2017, the Acting Principal Investigator wrote a reply to the applicant, in which he explained that the position remained as stated in his letter of 6 June 2017, and that he had nothing to add, except he went on to state that if the applicant should have any queries he was to contact a senior investigator whose name and telephone number was supplied. 

13.  At the oral hearing, the applicant, whilst acknowledging that he was unsure of the ICAC’s procedures in handling complaints and accountability measures when deciding not to investigate a complaint, confirmed that he did not take up the offer extended to him to contact the senior investigator to better understand how his complaint had been dealt with, and scrutinised before and after the decision was made not to investigate it.  In my view, this was a serious omission on the part of the applicant before embarking on judicial review proceedings.

The leave application

14.  On 9 August 2017, the applicant filed a notice of application for leave to apply for judicial review (Form 86) in relation to the decisions of the Commissioner of the ICAC, on 10 May 2017 refusing to commence criminal investigation in relation to the applicant’s complaint, and on 6 June 2017 refusing to explain the decision of 10 May 2017.  In his notice, the applicant requested an oral hearing if the court was inclined to refuse the application for leave to apply for judicial review or the application for a protective cost order. 

15.  The applicant referred to the ICAC’s webpage, in particular to its policy concerning the conduct of a criminal complaint against one of its officers.  The section that the applicant referred to reads:

“Internal Monitoring

The ICAC demands a high standard of integrity from its staff.  An internal investigation and monitoring unit, L Group, is responsible for investigating breaches of staff discipline, allegations of corruption against ICAC staff and non-criminal complaints against the ICAC or its staff.  All criminal complaints against staff are brought to the attention of the Secretary for Justice, who will decide whether they should be investigated by the ICAC or another law enforcement agency.  All completed investigations are reported to the Secretary for Justice and the Operations Review Committee.”

16.  The applicant complains that the published policy does not involve the seeking of legal advice from the Department of Justice but rather that the Secretary for Justice decides whether the complaint should be investigated and by who, and not whether to commence a criminal investigation.  He submits that the claim of legal professional privilege by the ICAC in its letter of 10 May 2017 must be an error of law.  He also refers to the statutory duty of the ICAC to investigate an alleged offence of corruption and questions whether the ICAC may refuse to investigate such a complaint. 

The four grounds for review

17.  The applicant advances four grounds for judicial review.  First, he submits that by section 12(b)(ii) of the Independent Commission Against Corruption Ordinance, Cap 204, (“the ICACO”), the ICAC has a duty to investigate an alleged offence under the Prevention of Bribery Ordinance, Cap 201, (“POBO”) and that the ICAC’s refusal to investigate his complaint was unlawful.  Secondly, he submits that he had a legitimate expectation that the procedure of handling his complaint would involve first, a decision as to who would conduct the investigation, and secondly, a decision by the Secretary for Justice in relation to such investigation.  Thirdly, he submits that the decision of refusing to investigate his complaint was Wednesbury unreasonable, and in the alternative, the failure to gather relevant evidence prior to making the decision was unlawful.  Finally, he submits that the ICAC was under a duty to explain its decision not to investigate his complaint, and erred in law in not giving any further explanation because of the issue of legal professional privilege.

As to Ground 1

18.  So far as material, section 12 of the ICACO reads:

“Duties of the Commissioner

It shall be the duty of the Commissioner, on behalf of the Chief Executive, to—

(a) receive and consider complaints alleging corrupt practices and investigate such of those complaints as he considers practicable;

(b) investigate—

(i) any alleged or suspected offence under this Ordinance;

(ii) any alleged or suspected offence under the Prevention of Bribery Ordinance (Cap. 201);

…

(c) investigate any conduct of a prescribed officer which, in the opinion of the Commissioner, is connected with or conducive to corrupt practices and to report thereon to the Chief Executive;

…”

19.  The duties stipulated under section 12 represent the Commissioner’s statutory charter.  The investigatory duty under section 12(b) is a mandatory one, requiring him to investigate the alleged or suspected offences specified.  As pointed out in Bribery & Corruption Law in Hong Kong, Ian McWalters, SC, 2^nd Edition, 2010, at 146, the mandatory duty imposed on the Commissioner to investigate under this section does not deprive him of the operational discretion to decide how to deploy his resources and carry out his investigatory duties.  It is well recognised that the exercise of such discretion by law enforcement involves making difficult judgments as to how best to utilise resources and manpower in addressing statutory duties and objectives.

20.  In R v Chief Constable of Sussex, Ex parte ITF Ltd [1999] 2 AC 418, Lord Slynn of Hadley, at 430G, endorsed the following remarks of Balcombe LJ in Harris v Sheffield United Football Club Ltd [1988] QB 77, 95:

“The true rule, in my judgment is as follows. In deciding how to exercise his public duty of enforcing the law, and of keeping the peace, a chief constable has a discretion, which he must exercise even-handedly. Provided he acts within his discretion, the courts will not interfere; … In exercising that discretion a chief constable must clearly have regard to the resources available to him.”

21.  This statement of principle was referred to in Bribery & Corruption Law in Hong Kong at 147:

“…in deciding how to perform his section 12 duties the Commissioner is possessed of an operational discretion. The exercise of this discretion is subject to the overriding supervision of the courts, but as long as the Commissioner exercises it even-handedly the courts will not interfere. The Commissioner will properly exercise his discretion if he abides by the Wednesbury principle. Under this principle, a court will only interfere with the exercise of a discretion if it can be persuaded that the decision maker has taken into account matters he ought not to have taken into account or conversely, has refused or neglected to take into account matters which he ought to have taken into account.”

22.  The applicant acknowledges that an investigation stipulated under section 12(b)(ii) could involve a preliminary assessment as to whether there is any substance to the allegation.  He submits that from the wording of the letter of 6 June 2017, it is implied that there was no preliminary assessment which led to the conclusion that there was no substance to the allegation.  He further submits that from the contents of the letter, no investigation took place and therefore the ICAC was in breach of its duty under the law.

23.  From my reading of the letter, it is clear that the applicant’s complaint was considered by the ICAC and in accordance with established procedures, namely, legal advice was sought from the Department of Justice on whether to commence a criminal investigation into the allegations made by the applicant.  It is further stated in the letter that legal advice was received in late April 2017 which did not recommend a criminal investigation.  There is no issue, or doubt for that matter, that the applicant’s complaint was submitted to the Department of Justice for its consideration and advice, and that the Department of Justice after considering the complaint submitted an advice to the ICAC, recommending that no criminal investigation take place.  Without more, there is no basis for the applicant to complain that his complaint was not properly considered and determined by the ICAC in accordance with established procedures and policy in the exercise of its statutory duty.

24.  The applicant added in his subsequent written submission of 20 February 2018 that there was nothing in the wording of the letter of 6 June 2017 which suggested that there was preliminary assessment, that the conclusion was reported to the Secretary for Justice or the Operations Review Committee, or that there would be a criminal investigation after the disciplinary investigation.  As mentioned in the section of the policy concerning Internal Monitoring, all completed investigations are reported to the Secretary for Justice and the Operations Review Committee.  In this case, the Secretary for Justice through his officers had advised on the matter and recommended that the complaint not be investigated, and the completed investigation would have been reported to the Operations Review Committee. 

25.  As explained in the ICAC’s webpage, the Operations Review Committee is one of four advisory committees, comprising prominent citizens appointed by the Chief Executive to oversee the work of the ICAC.  The terms of reference of the Operations Review Committee include receiving from the Commissioner information about all complaints of corruption made to the ICAC and the manner in which it deals with them.  Part of the accountability mechanism inherent in the ICAC’s structure is the oversight by a community based committee of the ICAC’s handling of complaints and conduct of investigations.  There is no reason to doubt that the applicant’s complaint would not have been submitted to the Operations Review Committee as required.  The Secretary for Justice sits on the Operations Review Committee.

26.  A judicial review is not a nit picking exercise, and not one devoid of common sense.  It is clear from the overall context of the matter that the relevant procedures had been followed and the relevant policy had been applied, which ultimately involved an assessment of the complaint by counsel of the Prosecutions Division of the Department of Justice.

27.  There is no substance to this ground of review.

As to Ground 2

28.  The applicant complains that he has a legitimate expectation that the procedures of handling his complaint would involve first, a decision as to who would conduct the investigation, and secondly, a decision by the Secretary for Justice as to the outcome of such an investigation. 

29.  The Secretary for Justice is the head of the Department of Justice and he exercises his duties and functions through his officers.  Clearly in this instance, the Secretary for Justice through the delegated authority to his officers has made a decision in the provision of legal advice to the ICAC.

30.  The applicant in his subsequent written submission argues that the ICAC had a duty to explain its real policy and clear up any ambiguity and it was not for the Court to speculate what the real policy was at this stage but instead to invite a response from the ICAC.  There is no ambiguity as claimed by the applicant that warrants the Court’s intervention or a response from the ICAC. 

31.  This ground of review is not reasonably arguable.

As to Ground 3

32.  The applicant complains that the decision not to investigate his complaint was made before the collection of evidence, in particular without obtaining the documents he said he had in his possession. He submits that his complaint could not be properly evaluated without the documents, which the ICAC had initially requested should be handed over, and therefore the ICAC’s action or inaction was Wednesbury unreasonable.  He further submits that he was deprived of the opportunity of proving the substance of his complaint as well as explaining the significance of the documents, and therefore the ICAC’s conduct violated the rule of natural justice and was unlawful.

33.  First, it was the decision of the applicant not to hand over the documents in question and it is therefore unreasonable for him to complain that a decision was made without them.  Secondly, I have not been provided with any information as to whether they were shown to the ICAC officers or whether an opportunity was given to the ICAC officers to make a copy of them.  In any event, it would appear from what the applicant told me in the oral hearing that the formal statement taken from him contained full details of his complaint, including a reflection of the contents of the withheld documents. 

34.  It is to be regretted that the words “unreasonable” or “irrational”, or the phrase “Wednesbury unreasonable” in the public law context, are sometimes bandied about by applicants and practitioners in judicial review proceedings to mean no more than that they disagree with the impugned decision or action.  In fundamental terms, a decision or action is Wednesbury unreasonable (or irrational), if it is so unreasonable that no reasonable person acting reasonably could have made or done it.[1]  It therefore follows that the test is stricter than merely showing that the decision or action was unreasonable.  See also Hong Kong Civil Procedure, 2018, Volume 1, 53/14/29.

35.  There is no substance to this ground of review.

As to Ground 4

36.  The applicant complains that the ICAC failed to adequately explain its decision not to investigate his complaint, and inappropriately relied on legal professional privilege in doing so.  The Acting Principal Investigator in his letter of 6 June 2017 stated that in view of legal professional privilege, “we regret that we cannot disclose the details of the legal advice to you.” 

37.  I am not aware, nor have I been informed, of the discussion or discussions that took place between the applicant and the relevant ICAC officers about his complaint.  It appears there were communications between them, but more importantly he was invited to contact certain named officers either in relation to his complaint and the non-criminal investigation to discuss the matter further.  It appears he did not do so.

38.  The last letter from the ICAC to the applicant dated 21 July 2017 referred to his letter dated 19 July 2017 of which the Acting Principal Investigator stated that he had duly noted its contents, and that their position remained the same as stated in his letter dated 6 June 2017 and that he had nothing to add.  He was finally informed that should he have any queries, he should contact the named officer whose telephone number was provided.  The applicant confirmed at the oral hearing that he did not take up the offer of contacting the officer in question.  A copy of the applicant’s letter of 19 July 2017 was not produced.

39.  The applicant has implicitly raised as to whether there is a duty on the ICAC to give reasons in the present circumstances.  The duty to give reasons will depend on a range of factors and it may sometimes be the case that because of the nature and subject matter of the decision, or because the reasons for the decision are clearly apparent, it is not necessary that reasons be given.  The duty to give reasons was succinctly stated by Fok JA, (as Fok PJ then was), with whom the other judges agreed, in Lister Assets Limited and Others v The Chief Executive in Council, CACV 172/2012, 25 April 2013, unreported:

“20. Moreover, there is no general duty at common law to give reasons for an administrative decision. Instead, the duty may arise as a matter of fairness in the particular circumstances of the decision. The general position is stated in R v Home Secretary ex p Doody [1994] 1 AC 531 at p. 564E and R (Hasan) v Secretary of State for Trade and Industry [2009] 3 All ER 539 at §19.

21. There are two situations in which, by way of exception to the general rule, reasons may be required for an administrative decision.  The first is where the decision appears aberrant, so that the reasons for reaching that decision should be made known to the recipient so that he may know whether the aberration is a legal one (and so challengeable) or apparent.  The second is where the decision engages an interest such as personal liberty that is so highly regarded by the law that fairness requires that reasons be given as of right.  See, R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 at p. 263.”

40.  As far as I can ascertain from the correspondence filed, the Acting Principal Investigator in his letter of 6 June 2017 was not prepared to disclose the details of the legal advice to the applicant because of legal professional privilege.  It is not clear whether there were any other communications between the applicant and the ICAC officers concerning the decision not to investigate the applicant’s complaint, particularly explaining or providing reasons for the decision.  However, it has been confirmed that the applicant was given the name and contact telephone number of an ICAC officer if he had any queries about his complaint, and that he did not contact the officer as invited.  As a judicial review is a remedy of last resort, the applicant’s failure to pursue the avenue available to him of contacting the ICAC officer to discuss or query the basis or reasons for the ICAC’s decision means that judicial review is not available in this case. 

41.  I have not addressed the matter as to whether reasons for a decision as contained in a legal advice should or should not be disclosed or whether reasons should be given in the present context, namely in relation to a decision by the ICAC not to investigate a complaint.  I have found that this ground is not reasonably arguable because the applicant complains that he was not given an explanation for the decision of 10 May 2017 but failed to make further inquiry about the basis or reasons for the decision that was extended to him. 

42.  This ground of review is not reasonably arguable given the circumstances as known by the Court.

Protective cost order

43.  The applicant applied for a protective cost order but in light of this decision the application is refused. 

Further direction

44.  The applicant in his subsequent written submission submits that if this Court is of the view that his formal statement is relevant, then the Court should make an appropriate direction for the production of his statement and all communications between him and the ICAC.  Whilst it would appear that I have not been provided with relevant information and material in evaluating this leave application, I do not see any need for such a direction in light of the nature and arguments in support of the grounds for review.  In any event, it is not the role of the Court to instruct or guide an applicant as to what evidence should be adduced in support of an application: A v AAB and PCPD,HCMP 985/2017, 21 July 2017, per Kwan JA, at paragraph 20. 

Conclusion

45.  I return to the decisions that the applicant seeks to challenge in these proceedings which he describes in the Form 86 as (1) 10 May 2017 decision of refusing to commence criminal investigation on the applicant’s complaint; and (2) 6 June 2017 decision of refusing to explain the 10 May 2017 decision. 

46.  I find on the information and material submitted to me that the decision of 10 May 2017 followed the established procedures, and that the decision of 6 June 2017 did not constitute a refusal to explain the decision of 10 May 2017, but rather that the details of the legal advice not recommending a criminal investigation could not be disclosed, and an invitation had been extended to the applicant in a letter dated 21 July 2017 to contact the relevant ICAC officer should he have any queries, which he did not do. 

47.  In light of the foregoing, I am of the view that the grounds for judicial review are not reasonably arguable and leave is therefore refused.