LEUNG WAI KUEN v. COMMISSIONER OF POLICE AND OTHERS

CACV 138/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 138 OF 2011

(ON APPEAL FROM HCAL NO. 53 OF 2011)

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BETWEEN

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JUDGMENT

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Hon Yuen JA:

1.  I agree with the judgment of Kwan JA.

Hon Kwan JA:

2.  This is an appeal against the refusal of leave to apply for judicial review. That order was made by Chung J on 22 July 2011. The applicant, who is acting in person throughout, has placed before this court elaborate submissions of 17 pages closely typed and a list of authorities with 17 items. He made further submissions to this court orally at the hearing.

3.  The appropriate test for granting leave to apply for judicial review is one of reasonable arguability. The burden is on an applicant to satisfy the court that his application enjoys realistic prospects of success. It is in the public interest that challenges which are not reasonably arguable should not be given leave to proceed, as public authorities should not be unduly vexed with unarguable challenges (Po Fun Chan v. Winnie Cheung (2007) 10 HKCFAR 676 at paras14 and 15).

4.  The objects of the applicant’s complaints began with the security guards and the management office in the housing estate in Tin Shui Wai where he lives. His complaints soon spread to the company that provided the security service, then to the Tin Shui Wai Police (“TSWP”) that handled his case, the Complaints Against Police Office (“CAPO”), the Licensing Office of the police, and eventually the Commissioner of Police, the Independent Police Complaints Council (“IPCC”), and the Chief Executive of Hong Kong.

5.  In the evidence he filed in support of his application, the applicant has divided his complaints into two stages. The earlier period was from March 2009 to April 2010 (which he called “Event 2”), and the latter period was from April 2010 to July 2011(which he called “Event 1”). His application for judicial review was taken out on 18 July 2011, and the subject of the application was only in relation to the complaints in the latter period. He alleged the incidents in the earlier period are relevant as they are similar to those of the latter period and that his complaints in both periods involved the same group of police officers.

6.  I will first give a narrative of the complaints, taken from the evidence filed by the applicant.

The earlier period

7.  At all material times, the applicant was the owner of two flats in Kenswood Court, Kingswood Villas, Tin Shui Wai, New Territories. He resided in a flat in Block 1 (“Flat C”), and the other flat in Block 14 (“Flat H”) was left vacant.

8.  On 28 March 2009, the applicant visited Flat H and discovered that the window of the sitting room was left open and lighting in the kitchen was switched on. He suspected unauthorised persons had broken into Flat H, so he lodged a complaint with the management office.

9.  On 23 May 2009, he went to Block 14 and noticed the watchman’s face had turned pale on seeing him. On this occasion, he found that the window of the sitting room was again left open, and the lock of the letterbox for Flat H was damaged, so it could be opened without the key. He noticed from the electricity bill of Flat H for 17 February 2009 to 20 April 2009 there was consumption of 41 units whereas previous bills had zero consumption. He suspected the intruders had damaged the letter box so they could take away the utility bills, and believed the intruders were the watchmen who used Flat H as a resting place. He complained to the management office and demanded that the watchmen of Block 14 be transferred elsewhere.

10.  In the evening of 28 May 2009, the applicant was in the clubhouse of the estate for over 3 hours. On his return to Flat C, he found that the home security camera which he set up earlier had stopped working. He suspected intruders had also entered Flat C although nothing was stolen. At that time, the security lock at the main entrance of Block 1 had been out of order for a week. He reported the incident to the management office and demanded that the security guards of Block 14 be changed immediately and they should not be posted back until the incident was fully investigated and they were found not guilty of his complaints. The senior manager agreed to change the guards and suggested the applicant should make a report to the police.

11.  On 30 May 2009, the applicant made a report to TSWP. On 4 June, the management office informed him on the telephone that after thorough investigation, there was no evidence to show watchmen had entered Flat H and the watchmen of Block 14 would be reinstated. The applicant requested to look at the CCTV tapes of the lifts and staircases but his request was turned down. He took the complaint to the management company, Citybase Property Management Ltd. (“Citybase”).

12.  This was followed by correspondence between the applicant and Citybase, and between the applicant and TSWP. The applicant was adamant the watchmen of Block 14 should be posted elsewhere. He suggested to TSWP the lock of the letter box of Flat H must have been criminally damaged, that the watchmen were either offenders themselves or were negligent, and that the police should revoke their security guard permits or take disciplinary action against them. TSWP took the view that the complaints did not show any crime had been committed and did not propose to take action. On 6 August 2009, the applicant made another report to TSWP stating he had reason to suspect that the letter box of Flat C had also been opened and letters were removed. He suspected that a security guard had opened this letter box. He informed TSWP if he did not hear from them within a week that they were working on his case, he would refer the matter to CAPO.

13.  On 17 August 2009, the applicant made a complaint to CAPO against the officers in TSWP responsible for handling his case, enclosing some of his correspondence with Citybase and TSWP, and a statement he wrote dated 4 June 2009 giving an account of unauthorised entry into Flat H and Flat C and damage to the letter box.

14.  On 27 August 2009, TSWP wrote to the applicant stating that police enquiry concerning his report about damage to his letter box was completed and as the result was fruitless, no further action would be taken. The applicant was dissatisfied with this reply and referred the matter to CAPO. Detective Senior Inspector Poon, who was in charge of the investigation team to handle his complaint to CAPO, requested the applicant to attend the police station for enquiries. The applicant refused to do so, stating in his letter dated 15 September 2009 that the answers to the police enquiries were found in the statement he prepared dated 4 June 2009, that the questions raised by the police were not relevant to his complaint with CAPO, and that he could respond to any clarification required by CAPO in writing. He also turned down a request of DSI Poon to inspect Flat H, stating that investigation should be conducted on the damage to his letter box.

15.  On 17 September 2009, DSI Poon wrote to reassure the applicant that the police would re-activate his complaint regarding damage to his letter box and invited him to give a statement in relation to his CAPO complaint and whether he would provide further information for his earlier complaints to TSWP concerning the suspected trespass to his flat and damage to his letter box. On 18 September, TSWP also wrote to the applicant to confirm that his report had been re-activated for further investigation and the officer in charge, Detective Senior Inspector Fung would contact him for that purpose.

16.  On 23 October 2009, DSI Poon and DSI Fung wrote separately to the applicant. DSI Poon asked the applicant to confirm he had received the Inspector’s letter dated 15 September 2009 asking him for an interview and raised a number of questions regarding his report to TSWP. DSI Fung informed the applicant that the police would not investigate via correspondence, that to conduct proper investigation the police would need to interview him with a statement taken from him at a place and time convenient to him, and if the police should fail to get any response on this, the police might consider taking no further action on his report.

17.  The applicant replied to both letters on 30 October and wrote a third letter to CAPO. He did not think the questions raised by DSI Poon were germane to the CAPO complaint, and expressed the view that the answers could be found in his statement of 4 June 2009 and the letters he sent to TSWP. Nevertheless, he provided answers to the questions to show his co-operation. In answer to DSI Fung, he maintained his stance and refused to be interviewed, insisting that all the information could be found in his earlier statement and letters, and he would complain to CAPO again if TSWP should decline to take further action in the case. In his separate letter to CAPO, the applicant alleged that the CAPO investigating officers were working hand in hand with TSWP and they were trying to give him trouble to make him drop his cases.

18.  Further correspondence followed between the applicant and the police if he should be interviewed. On 12 November 2009, TSWP sent a police officer to the applicant’s home to attempt to take a statement from him but he refused to give any statement. He wrote on 13 November 2009 alleging that TSWP was trying to investigate him instead of the security guards and was working with the security guards against him. In his letter of 20 November, DSI Poon sought to explain to the applicant why it was necessary to obtain a statement from him face to face, this was to ascertain the true identity of the complainant to make sure the identity was not misused by others, and for the complainant to sign a declaration confirming his willingness to make a statement which was true to the best of his knowledge. DSI Poon suggested as an alternative, if the applicant should prefer to write his own statement, he could arrange for this to be incorporated into a police statement format containing the declaration aforesaid and ask the applicant to append his signature at a time and location of his choice, to be witnessed by the complaint investigator. Lastly, he stated that these procedures were designed to safeguard the interest of all parties involved, and the police would not be able to further the enquiry without the applicant’s co-operation.

19.  The applicant replied on 27 November 2009 doubting the police’s motive in insisting on his giving a statement in person. The reasons DSI Poon put forward were not reasons at all and the meeting with the police was to try to make him drop his case. He wrote to CAPO on the same day complaining that TSWP and DSI Poon were not working on his cases.

20.  On 5 March 2010, the applicant wrote to CAPO to report that he suspected the security supervisor had illegally entered Flat C, as the burglar alarm in the flat was ringing and when he went back to the flat to take a look, he saw the security supervisor coming out of the building looking astonished. He suspected the supervisor had entered his flat to set the alarm ringing so the neighbours would complain and ask him not to use the alarm.

21.  By an undated letter received by the applicant on 27 March 2010, DSI Fung informed the applicant that TSWP had decided not to lay any charge due to insufficient evidence regarding his reports of suspected breaking into premises, damage to letter box and theft of letters. In a further letter of 19 April 2010, DSI Fung explained to the applicant the investigations police had conducted and the results: the CCTV tapes had been viewed with no suspect found; local enquiry was made but the police failed to locate any witness; enquiry was made with the relevant security guards but no useful information could be obtained, nor was any suspicion found on them; and enquiry was made with the applicant’s bank but no useful information could be obtained. As there was insufficient evidence to support a charge against any person, there would be no prosecution action for the time being.

22.  On 22 April 2010, the applicant wrote to CAPO to withdraw his complaint and ask the police to take no further action and close the file.

The latter period

23.  On 10 April 2010, the applicant wrote to the management office complaining that in the past few days the security guards of Block 1 had kept the main entrance door open so people were able to enter the building freely. Citybase replied on 17 April stating that security guards were given standing instruction regarding the control of access to the building and visitors were required to complete a registration formality and have their identity verified before they were allowed access.

24.  The applicant wrote to the management office on 16 May 2010 with a complaint about an incident on 15 May. This incident formed the basis of his report to the police and subsequent complaints. He stated that when he was going out of the building at around 7:30 pm, he noticed the main entrance door was left open and the security guard Mr Mong Keung was “sitting in his chair bowed over the table”. Mr Mong did not appear to notice him until the applicant asked why he had left open the main entrance door. In reply, Mr Mong said he was writing a record. Mr Mong remained seated and did not close the door. The applicant complained to a senior security guard Mr Leung Kam Shing who arrived but Mr Leung ignored his complaint. He went to the security office and informed the guard in charge Mr Tsui what had happened. He told Mr Tsui to take disciplinary proceeding against Mr Mong and Mr Leung and that Mr Tsui should view the CCTV tape, and if no action was taken by the following day, he would write to the Commissioner of Police to ask the Licensing Office not to renew the permits of the security guards.

25.  By its letter of 29 May 2010, Citybase gave a substantive reply to the applicant and set out the results of its investigation. Between 19:28 hours to 19:30 hours on 15 May, the main entrance door was left open on 2 occasions with about 2 minutes in total. The reason for this was the delivery of furniture to a flat by some workers and at the same time there were residents going out and had left the door open. At that time, Mr Mong was standing in front of the letter box area putting some management notices into the letter boxes and doing some documentary work. Once Mr Mong was aware of the door being left open, he closed it immediately. The applicant did not accept the above, he asked to view the CCTV tape. Citybase turned down his request.

26.  On 1, 5 and 7 June 2010 he wrote to the Licensing Office of the police alleging that Citybase was not telling the truth and trying to cover up the matter. He asked the Licensing Office to take immediate action to view the CCTV tapes. The Licensing Office replied on 7 June 2010 stating that his complaint against security personnel was referred to TSWP for investigation. DSI Fung was assigned to investigate. The applicant wrote repeatedly to TSWP stressing that the police should view the CCTV tapes in his presence and the presence of the security guards so that all parties could present their viewpoint to the police and the police could ask questions on the spot.  There was a viewing of the tape on 25 June in the police station in the applicant’s presence.

27.  On 26 June 2010, the applicant wrote to TSWP to put on record what he saw on the tape, which was as follows:

“Except that bowing over the table of Mr Mong Keung was not recorded by the CCTV tape, all the allegations made in my letter dated 16 May 2010 were substantiated.

I have to emphasize that during the alleged event, it is significant that Mr Mong Keung, in spite of my questioning, made no attempt to close the door in question. That door was finally closed by his colleague, Mr Leung Kam Shing.”

28.  On 22 July 2010, DSI Fung wrote to the applicant stating that investigation was completed and as there was insufficient evidence to support a charge against any person, there would be no prosecution for the time being. The applicant responded with a letter to the Licensing Office dated 27 July alleging that TSWP had misunderstood instructions of the Licensing Office, which were not to investigate a criminal offence. He requested the Licensing Office to ask TSWP to confirm that the contents of his letter to TSWP dated 26 June 2010 were correct. The Licensing Office replied on 28 July stating that his request was referred to TSWP for further investigation.

29.  On 24 August 2010, Detective Chief Inspector Mang made a substantive reply and informed the applicant that after the completion of investigation, there was insufficient evidence to support a charge against any security guard under the Security and Guarding Services Ordinance, Cap. 460, and no other offence was disclosed on the evidence. If additional information should become available in future, the case would be further considered.

30.  The applicant was dissatisfied with this reply and wrote to the Licensing Office on 25 August asking the latter to view the CCTV tape. There was further correspondence with the Licensing Office. On 26 August, the applicant sent the Licensing Office certain documents relating to his dealings with TSWP in the earlier period to give the Licensing Office a full picture. In his letter dated 29 August, the applicant referred to the incident in question on 15 May 2010 and confirmed that during the period the door was kept open, there were people entering and leaving the building through that door, and that the security guards did not pay attention to those people as they were putting up posters on the notice board.

31.  The Licensing Office wrote on 2 September 2010 to point out that as stated in the letter of TSWP dated 24 August there was not sufficient evidence to support a charge against security personnel.

32.  The applicant’s response was to lodge a complaint with CAPO by letter dated 6 September. His complaint was against Kao Yui Ki of the Licensing Office, DSI Fung and DCI Mang. The allegations against Kao were failure to find out the truth by viewing the CCTV tape; failure to take disciplinary action against the security guards and Citybase; and forwarding the documents sent by the applicant on 26 August to TSWP which related to his earlier complaint to CAPO against TSWP. The allegations against DSI Fung were failure to report the facts found by viewing the CCTV tape to the Licensing Office and that the facts should be as described in the applicant’s letter dated 26 June 2010; and attempting to exonerate the security guards and Citybase. The allegations against DCI Mang were failure to direct DSI Fung to do the job properly and attempting to exonerate the security guards and Citybase.

33.  On 29 September 2010, CAPO requested the applicant to attend for an interview. The applicant refused to be interviewed and insisted on replying to any query in writing, he copied to CAPO the letters between him and TSWP in the earlier period on 23 and 30 October 2009 to explain his position. CAPO again sought an interview by letter dated 14 October 2010, he refused on 16 October.

34.  On 17 October 2010, the applicant wrote to the Commissioner of Police alleging that CAPO did not do its job properly in respect of his complaint in the earlier period and that it was “trying to play game again” for his recent complaint. He asked the Commissioner to supervise CAPO to do a good job this time.

35.  CAPO wrote to the applicant on 1 November 2010 to point out that if he should refuse to co-operate and attend an interview, CAPO would be unable to carry out investigation in accordance with its procedure and directions, and if he should fail to contact CAPO for an interview within 14 days, CAPO would have no choice but to classify his complaint as “Not Pursuable” and close the investigation. Notwithstanding this letter, the applicant persisted in his stance there was no need for an interview and alleged in his letter of 5 November the police just wanted to meet him to put pressure on him to discontinue his case.

36.  On 22 November 2010, he wrote to the Chief Executive of Hong Kong enclosing the documents relating to the 2 complaints he lodged with CAPO. He stated the purpose of the letter was to request the Chief Executive to instruct the Commissioner of Police to properly investigate his ongoing complaint and to consider the establishment of an independent body to investigate police misconduct.

37.  From November 2010 to June 2011, there was further correspondence between the applicant, the Chief Executive’s Office, the Security and Guarding Services Industry Authority, the Crime Prevention Bureau (Securities Companies Inspection Unit) of the police, and CAPO. On 20 December 2010, CAPO wrote to the applicant to inform him that after his complaint was classified as “Not Pursuable”, CAPO submitted the matter to IPCC for consideration.

38.  On 21 April 2011, the Chief Executive’s Office sent the applicant a detailed reply giving a description of the two-tier complaints system against the police, namely, to CAPO and IPCC, and pointing out that the administration will not interfere with CAPO and IPCC in the handling of complaints to ensure their independence. The reason why it is an established procedure to commence a reportable complaint with a comprehensive written statement from the complainant was set out in detail. The applicant was reminded that IPCC can monitor CAPO’s investigation of complaints through the Observers Scheme and if he would like such an observer to be present during his interview or meeting with CAPO, he could ask CAPO to make the necessary arrangement.

39.  The applicant replied by letter dated 24 April 2011 if the Chief Executive should refuse to change his mind on this case within the week, he would have “no alternative but to publicize this case both to the local and the international community.”

40.  On 28 June 2011, the applicant wrote to IPCC referring to the letter of CAPO dated 20 December 2010 and asking if there would be a hearing or whether a decision would be made on the papers filed, if it was the former he would like to know the date and venue, and if it was the latter he would like to make a reply in writing.

41.  IPCC wrote to the applicant on 6 July 2011 stating that as mentioned in the letter of CAPO dated 20 December 2010, the investigation could not be further proceeded with without his co-operation, hence the allegations of his complaint case were classified as “Not Pursuable”, and IPCC endorsed the “Not Pursuable” classifications on 9 March 2011. The letter went on to say that if the applicant wished to re-activate his complaint case, he should approach CAPO direct as the investigation of complaint against the police must be conducted by CAPO.

42.  The applicant issued a notice of application for leave to apply for judicial on 18 July 2011.

The application for judicial review

43.  The applicant named the Commissioner of Police as the 1^st respondent, the IPCC as the 2^nd respondent and the Chief Executive as the 3^rd respondent. He sought the following reliefs in addition to his claim for damages and costs against them:

Against the Commissioner:

(1)     he be compelled to confirm that the contents of the applicant’s letters dated 26 June 2010 and 29 August 2010 are correct;

(2)     he be compelled to take disciplinary action against the security guards Mr Mong Keung and Mr Leung Kam Shing and Citybase; and

(3)     he be compelled to properly investigate the applicant’s complaint against his subordinate officers Kao Yau Ki, DSI Fung and DCI Mang for neglect of duty.

Against IPCC:

(1)     it be compelled to set aside its decisionmade on 9 March 2011 communicated to the applicant on 6 July 2011;

(2)     it be compelled to re-open the applicant’s case and give the applicant an opportunity to be heard before reaching any decision in his case; and

(3)     it be compelled to direct CAPO to properly investigate the applicant’s complaint against the police officers Kao Yau Ki, DSI Fung and DCI Mang.

Against the Chief Executive:

(1)     he be compelled to supervise the Commissioner to act on the reliefs sought against the Commissioner with due diligence; and

(2)     he be compelled to consider the establishment of an independent body to investigate police misconduct.

44.  On 22 July 2011, Chung J refused leave to apply for judicial review. He held that this is not a case where the putative respondents have made decisions against which a judicial review application can properly be made. He noted in particular that IPCC has requested for the applicant’s co-operation to make his complaint to be re-activated or further pursued.

This appeal

45.  The applicant acknowledged that he was out of time in seeking relief against the Commissioner, as the grounds for his application first arose more than 3 months of the application. He requested the court to extend time because he had tried to solve the problems through all other channels available to him. The alternative remedies he had attempted in this case were writing to the Commissioner and the Chief Executive. It is doubtful whether these could be regarded as appropriate remedies to pursue.

46.  He contended on appeal that he had made out a prima facie case that DSI Fung and DCI Mang had committed the offence of an attempt to pervert the course of justice, that the police officers had deliberately refused to confirm the truth of his letters dated 26 June 2010 and 29 August 2010, that the security guards by reason of misconduct were obviously not fit and proper persons to hold security guard permits and Citybase was not fit and proper to hold the licence of a security service provider, that DSI Fung had instructed his subordinate officer to collude with the security guards in an attempt to take a statement from him, that DSI Fung was obviously trying to protect the offenders from being brought to justice, that the police had apparently made a rule not to investigate any case involving the security guards of Kenswood Court, that the Licensing Office had failed to perform its duty by viewing the CCTV tapes and had wrongfully forwarded the papers of the previous complaint to TSWP, and that the acts of the police were unreasonable in the sense of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223.

47.  In respect of IPCC, he contended that the decision of IPCC to endorse the classification of CAPO that his case was “Not Pursuable” was Wednesbury unreasonable as there was a prima facie case against CAPO it had committed the offence of attempting to pervert the course of justice. Further, IPCC had deprived him of the opportunity to comment on the information submitted by CAPO before making a decision to endorse CAPO’s classification of his complaint. He submitted that IPCC is not an effective statutory body to deal with his complaints as it lacks the powers to do a proper job, and that it was unlawful to apply the over rigid procedure to commence a reportable complaint with a statement obtained from the complainant inflexibly.

48.  He submitted that the Chief Executive had not exercised any discretion or had exercised his discretion contrary to law in that he failed to take into account relevant circumstances and the decision of the Chief Executive not to take action in respect of his complaint was Wednesbury unreasonable. He contended that the Chief Executive had not directed his mind to address his complaints but had simply relayed the matters he raised to CAPO for reference and follow up.

49.  The evidence relied on by the applicant has been set out in some detail in the earlier part of this judgment. Far from disclosing a prima facie case to support the above contentions of the applicant, the evidence showed quite clearly he could have no legitimate complaint against the police officers. It is difficult to see how the incident on 15 May 2010 could have justified the applicant’s demand that the security guards should have their permits revoked or suspended by the Licensing Office. The applicant’s assertion in his letter of 29 August 2010 that the guards on 15 May did not pay attention to people entering and leaving the main entrance as they were putting up posters on the notice board was obviously his subjective view. His original complaint on 16 May that Mr Mong was “sitting in his chair bowed over the table” was not borne out by the CCTV tape as he had to assert in his letter dated 26 June 2010 that this was “not recorded by the CCTV tape.”

50.  The applicant resolutely refused to attend an interview with TSWP to assist with enquiries. The police had nevertheless carried out what investigation they could before they concluded there was insufficient evidence to charge any security guard with any offence under the Security and Guarding Services Ordinance, or with any other offence. The conclusion reached by the police on the available evidence was clearly a reasonable one. The suggestion that the police was trying to exonerate the security guards and Citybase was wholly unfounded.

51.  There is no prospect and no basis that a court could direct the Commissioner to confirm that the contents of the applicant’s letters dated 26 June 2010 and 29 August 2010, which contained his subjective view of the incident on 15 May 2010, were correct. Nor was there any basis for the police to take any disciplinary action against the security guards or Citybase.

52.  CAPO had reached a decision in respect of the applicant’s complaints against Kao, DSI Fung and DCI Mang that such complaints were “Not Pursuable” having given every opportunity to the applicant to attend an interview so that a comprehensive statement could be obtained from him in accordance with the established procedure to commence an investigation. The established procedure was devised for good reason, and it is not for the court to direct how CAPO should carry out its investigation. The applicant flatly refused to co-operate, making it impossible for CAPO to proceed with its investigation. I fail to see how it could be said that CAPO had failed to discharge its duty to investigate the applicant’s complaint properly. The decision of IPCC to endorse the classification of the complaint as “Not Pursuable” could not possibly be impugned. I am also unable to see how communicating with the applicant before reaching a decision to endorse the CAPO classification could have made any or any meaningful difference to the inevitable outcome.

53.  The allegations concerning the lack of independence of a CAPO investigation (which would be handled by officers of another team in accordance with established procedure) and the lack of effectiveness of IPCC are unfounded.

54.  Needless to say, there is no basis to seek any relief against the Chief Executive.

55.  The applicant has failed to make out a case of reasonable arguability. His application for leave to seek judicial review borders on an abuse of process. The judge was right to refuse leave. I would dismiss his appeal.