AU WAI MAN v. COMMISSIONER OF POLICE

HCAL 166/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW

LIST NO. 166 OF 2005

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J U D G M E N T

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1. On 4 October 2005, upon the execution of a search warrant issued by  a magistrate, police raided the premises at Shop 14, Ho King Shopping Centre, at Fa Yuen Street, Mongkok, in relation to the investigation of offences under the Control of Obscene and Indecent Articles Ordinance.

2. After the raid the police has, to use the terminology of the applicant, sealed off the premises and the premises was therefore closed until today.

3. The applicant is the tenant of the shop and he wish to apply for leave to seek judicial review to challenge the decision of the Commission of Police in terms of sealing off of the premises.

4. The applicant wishes to argue that the Commissioner does not have the power to do so and therefore the sealing off of the premises is unlawful.

5. The applicant also contends that the act of the police in so doing constitutes trespass and claims for damages for trespass, including damages for loss of profit and damage for rent paid during the period of sealing off.

6. At today’s hearing, Mr Wesley Wong, counsel appearing on behalf of the Commissioner indicates to the court that the Commissioner is now in a position to return the premises to the rightful owner.   So it is anticipated that the sealing off of the premises will be stopped in the near future.

7. What remains in the claims of the applicant is therefore a question of damages as a result of the alleged trespass. 

8. I should perhaps mention that in agreeing to the restoration of the premises to the rightful owner, the Commissioner did not concede that he has no power to seal off the premises in the first place..

9. I understand from Mr Wong that the contention of the Commissioner is that as far as the police is concerned, the Commissioner does have the power under Section 10 of the Police Force Ordinance to take necessary measures to preserve the premises. 

10. It comes about in this manner:  When the police carried out the raid at the premises and found that there were criminal activities conducted therein, the police took possession of the premises.  In the meantime, there is an obligation on the part of the police to examine to whom the premises should be restored to.   Bearing in mind the detection of alleged criminal activities at the premises, there is a possibility that the lease of the premises would have been terminated.  In that case the premises should not be restored to the tenant, but should have been restored to the landlord instead. 

11. Hence, the police had conducted inquiries as to whether the landlord forfeited or would consider forfeiting the tenancy by reason of such activities being carried out at the premises.  And this has taken some time and it was only at a rather late stage that the police was in a position to get a statement from the landlord to satisfy the police as to whom the premises should be restored to.

12. This is the argument that Mr Wong informed the court that police may take.  Of course, I understand Mr Wong has been given not much time to look into the matter, so I am not suggesting that this is the only argument that the Commissioner will advance in defence of its exercise of power.  But from this argument itself I can see that there would be matters that has to be canvassed: not only a matter of legal submissions but there could be quite a number of points which might require investigation into the factual matrix surrounding the whole episode.

13. Bearing in mind that as far as the restoration of the premises is concerned it has been satisfactorily resolved by the indication of the Commissioner to restore it to the rightful owner in the near future, the outstanding question is the question of damages and a claim for trespass.

14. I have to consider whether I should grant leave for judicial review and then direct under Order 53, Rule 9, (5) for the matter to be carried on as begun by writ, as opposed to refuse leave altogether and then leave the applicant to consider the issuance of a writ to claim for damages for trespass if he deems fit to do so.

15. I have no doubt in my mind that the correct course to take in this sort of scenario, particularly in the circumstances of this case, where the only outstanding matter seems to be one which is entirely a private law claim, the proper course for this court is to refuse leave for judicial review and leave it to the applicant to issue a fresh action by writ.

16. To start with, I think it is common ground that pleadings will be necessary.  That is so irrespective of whether I am going to make a direction under Order 53, Rule 9 or to refuse leave and leave the matter to be dealt with by a fresh action commenced by writ.  Moreover, one has to bear in mind that judicial review is a discretionary remedy and the court does have a discretion to consider whether judicial review is the proper procedure, or the more appropriate procedure in considering the grant or refusal of leave.  When there are other possible recourses by way of other forms of legal proceedings, the court has said repeatedly that it is only in very exceptional circumstances the court will grant leave for judicial review.

17. I really cannot see any advantage in allowing these proceedings to be continued in the context of judicial review as opposed to a fresh action commenced by writ.  Mr Ross has tried to persuade me by reference to the need to pay for the issuance of a fresh writ as opposed to the continuation of the present proceedings by way of judicial review.  I am not impressed by that argument. 

18. As far as the cost aspect is concerned that is a matter to be argued between the parties, but if Mr Ross’s client turns out to be correct, no doubt that the payment for the prescribed fees to issue a fresh writ, or alternatively, the payment for the filing of Form 86A in the present proceedings will be adequately compensated by an appropriate order for costs.

19. On the whole I think it is much more tidier for the matter to be canvassed in a fresh private law action.  I therefore refuse leave for application for judicial review in the circumstances of this case.  Of course, I say this without any prejudice as to argument on the costs, because to a large extent the refusal of leave is somewhat affected by the position of the Commissioner indicated to this court this morning.  I will hear submissions from the parties on the question of costs.

(Submissions on costs)

20. Mr Ross, asks for the costs of these proceedings up to today on the basis that it is because and only because of the Commissioner’s concessions this morning, which in substance is a surrender in terms of paragraph 2 of the relief sought in the Notice of Application, that leads to the result that the court refused leave for judicial review .

21. With respect, I do not agree with this analysis.  To start with the indication by the Commissioner that he would restore the premises to the rightful owner in the near future, as Mr Wong has made clear in the course of his submission, is not a concession that the Commissioner does not have the power to seal off the premises right from the beginning.  And Mr Wong has explained on behalf of the Commissioner as to why the premises has been sealed off for such a period of time.  Primarily it is only quite lately on 4 January the police was able to get a statement from the landlord as to his position.

22. Apart from paragraph 2, there are other reliefs claimed in the Notice of Application which I have already ruled to be more appropriately to be dealt with in the context of a private law action.

23. On the whole I think this is a case where I cannot say at this stage what would have been the result had the matter been fought to its end.    Originally I have contemplated reserving the question of costs until the end of the private law action, but Mr Ross told me there may not be any private law action after all.  He suggested that the applicant might not have the resources to fund such an action.

24. I find that a little bit puzzling because one way or another the costs pertaining to the prosecution of that action would have to be incurred because even if leave were granted and then an order being made pursuant to Order 53, Rule 9, (5), the same set of costs would have to be incurred in order to deal with the claim for trespass.

25. Be that as it may, given the indication of the applicant that he may not pursue with the private law action, it would not be right for me now to defer the decision on costs to the end of the private law action.

26. Now, I find myself in a position that I cannot tell for sure, one way or another, how the matter will end if there is a substantive hearing on the merit.  I cannot say whether the arguments now put forward by Mr Wong to justify the act of the police in terms of sealing off of the premises will be upheld if the matter is litigated. 

27. I cannot say, however, that it is not arguable at all, and of course, as I said, given the limited time that Mr Wong has looked into the matter there might well be other aspects which the police might rely upon to justify the legality of the sealing off of the premises.

28. I have also taken into account of the response of the police to the letter of 23 November 2005.  It would have been much better if the police’s response had been more forthcoming and parties had engaged in a more meaningful dialogue towards the resolution of the matter upon receipt of that letter.  Hopefully in the future whenever the police got any challenge to their exercise of power there could be some more positive engagement with the solicitors for the other side.

29. On the other hand, I have to bear in mind that the letter was written on behalf of the applicant who at that stage was probably a suspect in the criminal investigation which was still ongoing. 

30. In the end I do not think the response to that letter had much bearing on the question of costs because one way or another it is most likely that the applicant would try to claim for damages and this is, in fact, the application sought in paragraph 3 of the Notice of Application.

31. In the end, I find myself in the unfortunate position that I cannot tell one way or another what would be the result of the substantive issues have they been fought to a conclusion. 

32. Mr Wong has helpfully referred me to the case of Kuzena v London Borough of Southwark [2002] EWCA Civ 781, in particular paragraph 18 thereof.

33. Bearing in mind the amount of costs incurred so far and the very early stage of proceedings it would not be profitable for this court to try to adjudicate on these substantive issues in the context of the present cost application.  At this stage the Commissioner has yet to file his evidence in response. 

34. It would not be appropriate for the court to direct evidence to be filed just for the purpose of resolving the dispute as to costs.  I think in the end I have to adopt the fallback suggested in that case and I will make no order as to costs.