WONG CHI WAI v. SECRETARY FOR JUSTICE

HCAL 1337/2024

[2024] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1337 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant was arrested on 19 August 2022, on suspicion of the offences of ‘Indecent Assault’ on a Miss X (on dates between July and September 2021)  and a Miss Y (on earlier dates between January and May 2021).  Both sets of allegations were dealt with under the same Police reference number.

2.  Originally, Miss Y stated that she would not pursue the case or testify against the Applicant, and the Applicant was charged with and brought to trial only as to offences of indecent assault on Miss X.  The prosecution relied on an alleged oral admission said to have been made by the Applicant as recorded in the notebook of DPC 19262.  (In passing, the Applicant originally referred to a video-recorded interview conducted by the Police after he had been arrested, but has corrected that by his amendment: see below.)  However, at trial, the Magistrate apparently held that the alleged oral admission was inadmissible as evidence.  On 15 March 2024, the Magistrate found the Applicant not guilty of all three charges relating to Miss X.

3.  Though it does not much matter for present purposes, it can be noted that (1) the Applicant has sought to appeal the Magistrate’s order refusing him his costs after the acquittal (on the basis that he brought suspicion on himself), and (2) the prosecution has sought to appeal the acquittal, by way of case stated.

4.  More pertinently for present purposes, the Applicant was arrested again by the Police on 31 May 2024, and he has now been charged with two counts of indecent assault on Miss Y – being in relation to the same matters for which he was previously arrested.  The Applicant’s solicitors acting for him in that regard have invited the Department of Justice (“DoJ”)  by letter dated 18 July 2024 to review and reconsider the Police’s decision to further arrest the Applicant and charge him with indecent assault of Miss Y.

5.  However, by letter dated 24 July 2024, the DoJ informed the Applicant’s solicitors that having considered all the facts and circumstances, the prosecution against the Applicant would be proceeded with (“Decision”).

6.  By Form 86 dated 14 August 2024, the Applicant, acting in person, seeks leave to apply for judicial review so as to challenge the Decision.

7.  I note from the Decision letter that the next hearing in the criminal case was apparently adjourned to 16 September 2024, and there was some disagreement as to when the case should be brought up for taking a plea and, if appropriate, to fix trial dates.  Against that timetable, and by reference to the materials filed on this application, I thought it possible, proper and appropriate to deal with this matter on the papers.

8.  As it happens, whilst in the course of dealing with the application as originally formulated, the Applicant filed a summons dated 28 August 2024, seeking leave to amend his Form 86 in the form of a draft attached to the summons.  He also provided a further affirmation. The amendment is in effect to provide further explanation and/or grounds of the application for leave to apply for judicial review.  I am therefore proceeding on the basis of the Amended Form 86.  Not least by reference to the timetabling issues further identified from the further materials supplied, I remain of the view that it is possible, proper and appropriate to deal with this matter now on the papers.

9.  This is my Decision.

B.  The Application

10.  The Amended Form 86, and supporting affirmations which support it, identifies that the Applicant is seeking the relief of an injunction (in essence to prohibit the prosecution)  and/or an order for transfer of the trial, on the identified grounds (in my summary of them)  that:

(1)  The Applicant should not be prosecuted for alleged indecent assault of Miss Y in the same case for which the Applicant was arrested and investigated by the Police for the alleged indecent assault of both Miss X and Miss Y, after the Magistrate acquitted the Applicant after trial of the charges relating to Miss X and had ruled the VRI as inadmissible.  To do so is a contravention of the principle of double jeopardy identified by Bokhary PJ in Yeung Chun Pong v Secretary for Justice (2009)  12 HKCFAR 867 at §18.

(2)  The Applicant should not be prosecuted by relying on the evidence of Miss Y who discussed with Miss X before deciding to report the matter to the Police, which showed concoction between Miss X and Miss Y.

(3)  The Applicant should not be prosecuted by relying upon the investigation report (Pol 155)  of WDPC 13525 which showed that the Police decided to re-arrest and prosecute the Applicant on 31 May 2024 without legal advice from the DoJ.

(4)  It is also unfair to seek to rely again on the evidence which was ruled as inadmissible in the previous trial.

(5)  The decision of the High Court on the appeal from the Magistrate’s decision will affect the decision of the DoJ in whether or not to seek to rely on the same evidence.

(6)  Because the prosecution accepted the decision of Miss Y refusing to testify, with no objection, that meant the prosecution was unable to satisfy the usual requirements that the allegations of Miss X and Miss Y should be handled together at the same trial.

(7)  The situation means that the prosecution made a promise to the Applicant that it would not prosecute the Applicant in future as regards Miss Y’s allegation.

(8)  Following the Applicant’s acquittal on the charges relating to Miss X, Miss Y provided a further witness statement to the Police requesting the DoJ to prosecute again, because she cannot accept that the Applicant was acquitted.

(9)  The Police and the DoJ have refused not to proceed with the prosecution.

11.  The Applicant essentially makes the same points in his affirmations filed in support of the application made by the Form 86 and now Amended Form 86.

12.  As regards the Yeung Chun Pong case, the Applicant suggests that the legal principle of double jeopardy was supported by what was said in §18 of the judgment, that it is incumbent upon either party to the litigation to bring forward the whole of his case at the same time and that the principle of stopping vexatious or frivolous process applies equally to both civil and criminal litigation.  In criminal cases, the well-established principle is that a series of charges should not be preferred separately on different dates, but should normally be brought in pursuit of the same time and in one go, unless there is good reason and justification for doing so at different times.

13.  The Applicant says he has been advised by Counsel that Counsel does not think there is good reason and justification for prosecuting the Applicant on two separate occasions.

14.  I also note that in the Amended Form 86, the Applicant has further identified that:

(1)  On 16 August 2024, the Applicant wrote to the West Kowloon Magistrates’ Court to request an adjournment of the plea and fixing of the date of trial.

(2)  The Applicant has been informed that the Magistrates’ Court cannot wait for the results of his judicial review proceedings and the appeal in the High Court in order to proceed with the plea and trial.

(3)  Therefore, the Applicant was required to file written submission for his application for stay of proceedings on or before 30 August 2024, and the hearing of the formal application for stay of proceedings has been fixed for 13 September 2024.

(4)  The trial as regards Miss Y’s allegation against the Applicant will be conducted between 16-18 October 2024 (though I would note that is presumably subject to reconsideration upon the hearing and outcome of the application for stay of proceedings to be heard on 13 September 2024).

C.  Consideration of the Application

15.  With respect, I think the Applicant’s current application for leave to apply for judicial review is misconceived and/or without merit, in a number of respects, and it falls to be dismissed.

16.  First, all the arguments/grounds put forward by the Applicant suggest reasons why he says that he should not be prosecuted in relation to the allegations of indecent assault on Miss Y.  In other words, the subject of the intended challenge is directed at a prosecutorial decision – here apparently originally made by the Police, and subsequently expressly endorsed by the DoJ in the Decision.

17.  In that regard, it is trite that reference must be made to Article 63 of the Basic Law (“BL 63”), which provides that:

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.

18.  Whether prosecutorial decisions of the DoJ are amenable to judicial review has been discussed by Chow J (as Chow JA then was)  in his decision in Tsang Kin Shing v Secretary for Justice, [2019] HKCFI 2215 at §§22-39, and by Alex Lee J in Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397 at §§34-35.

19.  In gist, as the law now stands in Hong Kong, prosecutorial decisions made by the DoJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality.  That is a result flowing from BL 63.  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 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.

20.  The Applicant has failed to propose any ground which could be framed as raising an allegation of unconstitutionality.  I do not overlook the fact that the Applicant has suggested in his affirmation that the Police have ignored the fact (he says)  that Miss Y’s evidence is untrue and have revengefully arrested and prosecuted him again.  But, his solicitors invited the DoJ to review and reconsider the decision to prosecute, and it is the Decision of the DoJ which is the subject matter of the intended challenge in these proceedings.  Notwithstanding the Applicant’s invocation of the word “malicious” to describe his prosecution, there is in fact nothing in the evidence which might support any suggestion that the DoJ has in any way acted in bad faith.

21.  Secondly, all of the arguments which the Applicant raises essentially go to the fairness or unfairness of prosecuting him, and/or the admissibility and/or weight to be given to any particular piece of evidence.  It seems to me that all of those arguments are capable of being raised by the Applicant within the criminal proceedings.  There is therefore an available alternative remedy open to the Applicant, which points against the need for or propriety of any judicial review challenge.

22.  Thirdly, this point is in fact made good by the judgment of the Court of Final Appeal (“CFA”)  to which the Applicant has himself made reference – namely the Yeung Chun Pong case.  That case reached the CFA under the circumstances that the trial judge refused the application of the defendants in that case for a stay of the criminal proceedings in Hong Kong on the basis of the rule against double jeopardy.  The defendants in that case challenged that refusal of the stay by commencement of judicial review proceedings.  The Court of First Instance dismissed their application, which was affirmed by the Court of Appeal (“CA”).  The appellants appealed to the CFA against the CA’s decision.

23.  But the very fact that those proceedings began as a result of an application for a stay of the criminal proceedings on the basis that they were an abuse as being against the double jeopardy rule itself identifies that it would be open to the Applicant in this case to make an application for a stay of the criminal proceedings on a similar basis.

24.  Fourthly, the further materials supplied by the Applicant with his application to amend the original Form 86 identify that the Applicant has in fact already made the application for a permanent stay of proceedings, and that that application will be heard on 13 September 2024, with the benefit of written submissions filed in advance of that hearing. Therefore, not only does the Applicant have an available alternative remedy, he is exercising his rights in pursuing that available alternative remedy.

25.  In so far as it is necessary or helpful to do so, it can also be noted that:

(1)  The CFA held in the Yeung Chun Pong case (at §21), and it was common ground, that there is a discretionary power to stay a prosecution as an abuse of process where (i) a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction)  and (ii) the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial.

(2)  The CFA went on to identify (at §22)  that it is therefore necessary to consider whether the two charges in question do or do not arise from the same or substantially the same set of facts.

(3)  But, when considering these rival submissions, it is necessary to bear in mind that criminal conduct over a period may, depending on the particular facts, constitute a single offence or a series of offences that are separate albeit of a like nature.

26.  Those considerations may arise on the stay application which the Applicant has mounted against the criminal charges brought in relation to alleged indecent assault on Miss Y.  It is, in light of my above findings, neither necessary nor appropriate to express any firm view on the merits of such an application if it were to be made – the merits are for the Magistrates’ Court hearing the stay application to decide. But it might be thought at least arguable that the charges brought against the Applicant in the first criminal proceedings (where Miss X was the complainant)  and subsequent criminal proceedings (where Miss Y is the complainant)  did not arise from the same or substantially the same set of facts as the two cases involve two different complainants accusing the Applicant of indecently assaulting them at different places and different times.

27.  Nevertheless, it is also right to point out that (at §27)  the CFA made clear that its decision in that case does not stand for any proposition such as one under which the Hong Kong prosecuting authority can choose to prosecute in respect of (there)  one racing season’s proceeds first, while keeping a case in respect of another racing season’s proceeds in reserve.  As the CFA pointed out, that is not what happened in that case, and in fairness to the prosecuting authority, it was not suggested that such a course is one that it would want to adopt.

28.  In this case, the Applicant has himself identified that the charges relating to Miss Y were apparently not originally pursued to a trial because she did not then wish to pursue them. She may have changed her mind – and indeed appears to have done so – which enables the charges now to be pursued, but that does not mean that the prosecuting authority has somehow pursued the charges relating to Miss X, whilst keeping other charges relating to Miss Y in reserve.

29.  As to the Applicant’s reliance upon §18 of the CFA’s judgment in the Yeung Chun Pong case, it might be noted that paragraph contains Bokhary PJ’s elaboration of and some comment on the case authorities cited by the defendants in those proceedings.  To me, the comment relates less to a matter of double jeopardy, than to ‘vexation’ or to a matter of the fairness in normally bringing forward and pursuing particular charges at the same time, when they can be brought together, unless there is good reason and justification for doing so at different times.

30.  Again, it seems to me that any argument along those lines can appropriately and should be raised before the Magistrates’ Court dealing with the criminal prosecution and/or the extant application for a stay of those proceedings.

D.  Result

31.  In the circumstances, the Applicant has failed to identify any reasonably arguable grounds of judicial review with any realistic prospect of success.

32.  Therefore, the application for leave to apply for judicial review is dismissed, with no order as to costs.