RE LEUNG LAI FUN

[English Translation – 英譯本]

CACV 183/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 183 OF 2016

(ON APPEAL FROM HCAL 96 OF 2016)

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DECISION

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1.  On 20 May 2016, Ms Leung applied to the Court of First Instance for leave to apply for judicial review, the putative respondent being the “Director of Public Prosecutions (Secretary for Justice)”.  Apart from her affirmation(s) and documents, Ms Leung also made oral submissions before M Poon J.  On 31 August M Poon J refused the application for reasons given on the same day.

2.  On 12 September, Ms Leung filed a “Notice of Appeal” to appeal against the decision of M Poon J.

Background

3.  The matter arose from Ms Leung’s claim that a person (Mr Ng) had without her authorization applied for a “Certificate of Registration of Death” and a “Cremation Permit” for her deceased mother in January 2013, and another person (Ms Yu) had used those documents to reserve a time slot for the cremation of her deceased mother on 5 February, but then transferred that time slot to another person (“Ho”).  Mr Ng was in the business of a funeral agent.  However, Ms Leung claimed that she did not know either Mr Ng or Ms Yu, and she had only made contact with an undertaker.  She alleged that the signature on an authorization letter addressed to the Director of Health for the application of a “Cremation Permit” was not hers.  Hence, she believed that someone had committed the offences of “making a false instrument” and “using a false instrument”.

4.  An investigation was commenced by the Independent Commission Against Corruption.  In October 2014, Ms Leung was advised by ICAC investigating officer(s) that none of the persons involved in the case would be prosecuted.

5.  Ms Leung then wrote to the Director of Public Prosecutions repeatedly asking him to follow up the matter.     

6.1.   In reply, the DPP sent Ms Leung a total of three letters dated 8 September 2015, 11 December 2015, and 23 February 2016 respectively.   In the letters, the DPP explained that he had to make a comprehensive assessment of the evidence and all the circumstances in accordance with the “Prosecution Code” before deciding whether a prosecution would be instituted. 

6.2.   The DPP considered that there was no evidence to show that Ms Yu had prior knowledge that Ms Leung had asked for the cremation of her deceased mother to take place on 9 March (and consequently would not accept the time slot of 5 February), and there was also no evidence to show that Ms Yu had either taken part in demanding a reward from Ho or participated in a conspiracy to defraud. As a result, the DPP reached the conclusion that since there was no reasonable prospect of Ms Yu being convicted, it would be inappropriate to institute a prosecution. The DPP added in the December letter that he had already given consideration to the question whether the evidence concerned supported the two charges of “making a false instrument” and “using a false instrument”.

6.3.   With regard to Mr Ng, the DPP set out the factors he had taken into account, including the following: there was no evidence in the case to show that Mr Ng had obtained any personal gain in this matter; he was cooperative with the authorities; he was remorseful; and he had no criminal record.  In his view, administering a caution to Mr Ng was an appropriate way to deal with the matter.  Regarding the question of whether Mr Ng had any personal gain, the DPP added in his December letter that there was no evidence to prove that he had demanded any extra money from Ho.

7.  Ms Leung applied for leave to apply for judicial review.  She felt that the DPP had misunderstood or did not understand Mr Ng’s role and Ms Yu’s participation. Ms Leung believed that Ho, in order to get the time slot on 5 February, would pay extra money to the undertaker instead of Mr Ng.  However, as Mr Ng worked for the undertaker, and would receive wages from him, he could therefore obtain a personal gain.  She also said that Mr Ng and Ms Yu were “queuing persons” who assisted the undertaker.

M Poon J’s decision

8.  M Poon J took the view that the DPP had made his decision in accordance with the “Prosecution Code” and had balanced the interests of all parties when making his assessment.  The decision concerned was not Wednesbury unreasonable, namely, a decision which no reasonable decision-maker could reach.  Hence, the judge refused to grant leave.

Appeal

9.  Ms Leung put forward a series of grounds of appeal.  They basically repeated her belief that the DPP misunderstood or did not understand Mr Ng’s role and Ms Yu’s participation, so that his decision not to institute a prosecution was a violation of the “Prosecution Code”. She felt that applying for leave to apply for judicial review was the only recourse.

Discussion

10.  Article 63 of the Basic Law provides that “The Department of Justice shall control criminal prosecutions, free from any interference”. As Hartmann J had pointed out in RV v The Director of Immigration (2008) 4 HKLRD 529, this provision includes the protection of the independence of the Department of Justice’s control of criminal prosecutions from judicial encroachment. It is only if the case belongs to those extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned. Otherwise the Court should not encroach on the right of the Department of Justice to control prosecutions.  This is the major premise which is founded on principle.

11.  As regards the case cited by Ms Leung, D v Director of Public Prosecutions HCAL 88/2015 (7 July 2015), that judgment did not raise any legal concept inconsistent with the principle mentioned above.  In that case, the judge took into account the particular circumstances of the case and took the view that the applicant’s case was reasonably arguable.  That was the judge’s preliminary view and there was no further development of the case.  In any event, the decision is not binding upon this Court.            

12.   In the present case, the documents and evidence submitted by Ms Leung did not show that the DPP had acted in obedience to political instruction when making the decision, or in bad faith.  According to the legal principle discussed above, the Court should not grant her application.

13.  As for her belief that the DPP misunderstood or did not understand Mr Ng’s role and Ms Yu’s participation in the matter, and therefore he did not act in accordance with the “Prosecution Code”, she can continue to clarify with the DPP in detail whatever misunderstandings she believed he had.  Consequently the Court’s intervention is not necessary.    

14.  Moreover, it should be noted that Ms Leung and the Court do not have all the information in the control of the DPP, including the statements and explanations of the persons concerned.

15.  Under these circumstances, in view of the principle discussed above in relation to Article 63, we do not find any grounds to interfere with the Department of Justice’s control of criminal prosecutions.   

16.  For the foregoing reasons, this application has not reached the threshold laid down in the authority of Peter Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, and we dismiss the appeal. 

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.