CHAN YAT CHUEN v. SECRETARY FOR JUSTICE

HCAL 204/2024

[2024] HKCFI 2360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 204 OF 2024

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J U D G M E N T

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A.  Introduction

1.  The Applicant – then a police officer – was charged with doing acts tending and intended to pervert the course of public justice. On 17 November 2006, he was convicted after trial in the District Court before HHJ Chua. He was sentenced to 18 months’ imprisonment, which sentence he served. However, his conviction was later quashed by the Court of Appeal, for the reasons explained in its Reasons for Judgment dated 16 June 2008 (“CA Judgment”).

2.  By letter dated 8 June 2022, the Applicant applied for ex gratia compensation under an administrative scheme intended to provide compensation for certain persons who have been wrongfully convicted and imprisoned (“Ex Gratia Scheme”). That application was considered and rejected by the Solicitor General (“SG”) by his decision notified by letter dated 29 November 2023 (“Decision”).

3.  By his Form 86 dated 23 January 2024, the Applicant sought leave to apply for judicial review so as to challenge the Decision. On 26 January 2024, I granted leave to apply for judicial review, on the papers. I also gave directions to bring the matter to a substantive hearing, subsequently fixed for 5 September 2024.

4.  At the substantive hearing, the Applicant was represented by Mr David Boyton and Mr Samuelson TL Choi of Counsel, and the SG was represented by Mr Alvin Hor SGC (Ag) and Ms Nova Tang GC of the Department of Justice (“DoJ”).

5.  At the beginning of the hearing, Mr Hor applied for leave to adduce an additional affidavit to deal with a chronology issue which had arisen from the exchange of written submissions (see below). I granted leave, but reserved my decision on the costs of that application. I acknowledge that both Mr Boyton and Mr Hor considered that the costs of that application might be costs in the cause of the judicial review, and I am content to agree that is an appropriate order, which I make.

6.  At the conclusion of the substantive hearing, I reserved my decision to be handed down later. This is my Judgment.

B.  The Ex Gratia Scheme

7.  The Ex Gratia Scheme is an administrative scheme where the Government may make an ex gratia payment, in certain exceptional cases, where the claimant has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority.

8.  The administrative guidelines for the payment of ex gratia compensation (“Guidelines”) are summarised in the LC Paper No. CB (4)486/13-16(06) “Compensation for Wrongful Conviction” issued in March 2014. The Guidelines state at §4 that:

(a)  Compensation may be payable to a person convicted of a criminal offence who has spent time in custody and has received a free pardon because his innocence has been established or his conviction has been quashed following a reference to the Court of Appeal by the Chief Executive or an appeal out of time.

(b)  Compensation may be payable where a person has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority.

(c)  Aside from guidelines (a) and (b), compensation may be payable in outstandingly deserving cases.

(d)  Compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge.

(e)  Compensation may be refused where there is serious doubt about the claimant’s innocence.

(f)  Compensation may be refused or reduced proportionately where the claimant is wholly or partly to blame for his misfortune.

(g)  From the perspective of public policy or administration, extending compensation beyond guidelines (a), (b) and (c) to persons who have suffered loss in the ordinary course of the criminal process (for example, to those to whom guideline (d) applies) would have substantial cost and other resource implications. There would be a much larger number of potential claimants and a tribunal or some other special machinery would be required to investigate each case and distinguish the claimants who are very probably innocent from those who were lucky to escape conviction.

9.  Most relevant for present purposes are §§4(b) and (e), but it is important to see them in context. In this particular case, there is clearly no dispute that the Applicant was wrongly convicted. The real issues are whether that wrongful conviction was the result of serious default by the police or other public authority, and whether there is a serious doubt about the Applicant’s innocence.

10.  A further explanation of the Guidelines §4(b) was given as an annex to a letter dated 14 June 2014 from the Legal Policy Division of the DOJ to the Clerk to the Panel on Administration of Justice and Legal Services of the Legislative Council. That letter emphasised that the Ex Gratia Scheme is meant to cater for very exceptional cases. The further explanation was as follows (emphasis, italics and bold in original):

7. Paragraph 4(b) of the Paper states the existing policy that compensation may be payable where a person has spent time in custody following a “wrongful conviction or charge resulting from serious default by the police or other public authority” (emphasis added).

8. The expression “wrongful conviction” includes the conviction of those who are innocent of the crime of which they have been convicted and would be extended to those who, whether guilty or not, should clearly not have been convicted at their trials. The common factor in such cases as held by the House of Lords in the United Kingdom is that something had gone seriously wrong in the investigation of the offence or in the conduct of the trial, resulting in the conviction of someone who should not have been convicted (R. (on the application of Mullen) v Secretary of State for the Home Department [2005] 1 AC 1 (H.L.).

9. In his speech in the Mullen case, Lord Bingham gave several examples of “wrongful convictions”:

“It is impossible and unnecessary to identify the manifold reasons why a defendant may be convicted when he should not have been. It may be because the evidence against him was fabricated or perjured. It may be because flawed expert evidence was relied on to secure conviction. It may be because evidence helpful to the defence was concealed or withheld. It may be because the jury was the subject of malicious interference. It may be because of judicial unfairness or misdirection. In cases of this kind, it may, or more often may not, be possible to say that a defendant is innocent, but it is possible to say that he has been wrongly convicted.” (At p.24, para.4)

10. Just as a period in custody not resulting from a wrongful conviction or charge does not qualify for the compensation, a wrongful conviction or charge resulting in a person spending time in custody also does not by itself fall within the guidelines for the compensation. It is only a “serious default” of the police or other public authority in relation to the conviction or charge which can found an application for compensation.

11. Some United Kingdom authorities had interpreted the term “serious default”. One can assess the level of seriousness of the default as emerges from the judgement of the appellate court (Re Boyle’s Application for Judicial Review [2008] NCA 35, para.30).

12. If it is necessary to consider the question and make a judgement, the Solicitor General has to be properly guided by the judgment of the court which quashed the conviction. It would not generally be open to him to treat as minor what the court had treated as serious, or vice versa. It is not for the Solicitor General to go behind the judgement of the court (In re McFarland [2004] 1 WLR 1289 (H.L.) (N.I.), p.1279-1280, paras.16 & 17).

11.  Reference can also be made to an Information Note which at §5 states that:

… the Government may make an ex gratia payment, in certain exceptional cases, where the claimant has spent time in custody following a wrongful conviction or charge resulting from serious default by the police or other public authority. This might be the case, for example, when bail was refused because of incorrect information given to the court by the prosecutor or the police, or where police suppressed material evidence which would have helped to exonerate a convicted person. Compensation may also be payable on this basis where the wrongful act was that of a judge or magistrate. The Government will assess these applications having regard to any relevant judicial views that the court(s) may have expressed during any appeal or review process(es) of the cases concerned and all other available and relevant materials.

12.  The Ex Gratia Scheme was considered by Chow J (as Chow JA then was) in A v Secretary for Justice [2020] HKCFI 427, in particular at §§40-49. I agree with the approach there adopted and, with some additional points, I offer my slightly restated principles as follows:

(1)  There are good policy reasons for the Government to be circumspect about making an ex gratia payment under the Ex Gratia Scheme, not least because the payments are made out of public funds.

(2)  The Ex Gratia Scheme is therefore designed to cater for exceptional cases.

(3)  An applicant has no legal entitlement to be paid compensation under the Ex Gratia Scheme, and whether to grant compensation is a matter of discretion.

(4)  On any judicial review challenge to the SG’s decision exercising that discretion, the Court does not conduct a merits review – and should be astute not to be drawn into such an impermissible merits review.

(5)  Instead, the SG’s exercise of discretion can only be challenged on the usual grounds of judicial review, i.e. illegality, Wednesbury unreasonableness/irrationality and procedural unfairness.

(6)  The SG is not bound to make an ex gratia payment to an applicant whose case falls within the prevailing statement of policy, and he is not bound to refuse payment to an applicant whose case falls outside it.

(7)  Provided the SG avoids irrationality in decisions about who is and who is not to receive ex gratia payments, and provided he adopts a fair procedure in the decision-making process, a judicial review challenge is at least extremely unlikely to succeed.

(8)  What amounts to a serious default by the police or other public authority can include not just matters such as the provision of incorrect information or deliberate concealment, but can include also a high degree of negligence on their part.

(9)  It is appropriate for the SG to consider whether the default is of the kind – i.e. is it serious, or serious enough – as might properly bring the case within the exceptional type of case as might justify payment of ex gratia compensation.

(10)  But the question of seriousness is governed by the nature of the default, and not the consequences of the default, assessed against the consideration of the circumstances in which the default arose.

(11)  Whether there was a serious default by the police or other public authority and whether there is serious doubt about an applicant’s innocence are essentially matters for the SG to decide.

(12)  Doubt is serious if it is real and substantial, as opposed to being minor or trivial.

(13)  The SG is not bound by the judgment of the Court of Appeal, but obviously he should normally not depart from the reasoning which underlies that judgment.

(14)  Indeed, it would not normally be open to the SG to treat as minor what the Court of Appeal had treated as serious, or vice versa – the cue has to be taken from the Court.

(15)  However, it is important to bear in mind that the focus of the Court of Appeal’s consideration on an appeal against conviction is not whether the applicant was “innocent” of the offence for which he had been convicted, but whether the conviction was unsafe.

(16)  Hence, the question to be determined by the Court of Appeal is different from what the SG has to consider.

(17)  That an appeal against conviction may not be opposed is not necessarily inconsistent with the SG taking the view that there is serious doubt about the applicant’s innocence.

(18)  The same can be said as regards not opposing an order of costs in favour of the acquitted applicant, and/or not seeking a retrial after acquittal on appeal.

(19)  The SG is lawfully entitled to take into account materials that were not adduced at the trial, or not before or considered by the Court of Appeal, in reaching his conclusion that there is serious doubt about the applicant’s innocence.

13.  I approach my consideration in this case by applying those principles.

C.  The CA Judgment

14.  As the Applicant’s original application for ex gratia compensation and the current judicial review application have placed significant reliance on what was said by the Court of Appeal in the CA Judgment, it is helpful to consider the terms of that judgment.

15.  The CA Judgment first sets out the charge and the basis of the prosecution case against the Applicant on that charge, which might be shortly summarised as follows:

(1)  The Applicant was a police constable investigating a wounding / acid-throwing attack.

(2)  It was thought that a person, Chan Ying-kin (“Ken”) – who became PW1 in the trial of the Applicant – was one of the attackers.

(3)  It was also suspected that a triad personality called “Monkey” had been hired to carry out the attack and he had instructed Ken and another called “Ah Lung” to do it.

(4)  When the Applicant met with Ken at a riverside, the Applicant told Ken the police knew he was involved in the attack and asked him what he wanted to say.

(5)  Ken told the Applicant that he and Ah Lung had carried out the attack on the instructions of Monkey.

(6)  The Applicant told Ken that he should point the finger at his co-defendants or he would take sole responsibility for the matter.

(7)  Ken was reluctant to do so as it would mean incriminating Monkey and Ah Lung, his triad brothers.

(8)  The Applicant suggested to Ken he could incriminate someone else, by saying the attack was carried out by an imaginary instigator “Billie” (“Billie version”).

(9)  Ken said he agreed he would do this.

(10)  The riverside conversation formed the basis of the prosecution case.

(11)  According to Ken, on the way to the police station he repeated the true version of events involving Monkey and Ah Lung to the Applicant within the hearing of two other police officers.

(12)  Ken later signed a post record purporting to evidence the conversation he had with the Applicant in terms of the false Billie version of events.

(13)  A video-recorded interview (“VRI”) was conducted by the Applicant, when Ken repeated the concocted Billie version.

(14)  But almost immediately after the VRI, Ken was again interviewed by the Applicant in the presence of a police sergeant and other officers, in an informal interview, which was audio recorded with a digital recorder of which Ken said he was unaware.

(15)  The transcript of the audio recording became exhibit P15 at the trial of the Applicant.

(16)  In it, the Applicant pressed Ken to tell the true story, and Ken detailed his and Ah Lung’s involvement on the instructions of Monkey.

(17)  Ken was invited to consider giving evidence for the prosecution against Monkey, and he later agreed to do so.

(18)  Ken did in fact give that evidence and, as a result, Monkey was convicted for his role in the attack and sentenced to 18 years’ imprisonment.

16.  The essence of the prosecution case against the Applicant was that he was intending to prevent the prosecution of the real culprits Monkey and Ah Lung, by persuading Ken to identify instead an imaginary perpetrator, Billie. That was why the charge was framed in the terms that the Applicant had incited, induced and instructed Ken to make a false statement under caution.

17.  Having set out the prosecution case, the Court of Appeal commented in §12:

12.  The prosecution case against the applicant was faced with something of a dilemma. Even if the riverside conversation between the applicant and PW1 took place in the terms described by PW1 in his evidence, it seemed a most unusual circumstance for the applicant, immediately following upon PW1’s initial video interview during which he gave the agreed false version of events, to re-interview PW1 so as to get the truth in the terms set out in P15. This created a difficulty for the prosecution in that the terms of the informal interview suggested that, even if PW1’s evidence was accepted as to the riverside conversation, the real intention of the applicant may have been to continue to urge PW1 to divulge the truth and to, through PW1, eventually be in a position to prosecute “Monkey”. In those circumstances it may well have been thought that the applicant lacked the requisite intention to pervert the course of justice and indeed intended at all times to further the investigation and prosecution of “Monkey” and “Ah Lung”.

18.  The grounds of appeal which had been originally advanced for the Applicant were ultimately not considered, because the Court itself raised matters which it thought would be determinative of the appeal. Hence, the main reasoning for acquittal is to be found in §§15-25, which can be set out in full as follows:

15. We do not set those grounds out in any detail because this application succeeded on a somewhat different basis, which we raised and which we allowed Mr Yeung to adopt. That basis was quite simply that the prosecution had failed to sufficiently prove, and the judge had failed to consider whether it had been properly established, that the applicant intended to pervert the course of justice.

16. It was alleged by the prosecution that, assuming the riverside conversation had taken place as PW1 said, the applicant was intending to prevent the prosecution of the real culprits “Monkey” and “Ah Lung”. Any such suggestion however had to explain the contents of the initial part of that conversation where, according to PW1’s evidence, the applicant had pressured him to “point the figure at his co-defendants” and, more starkly, the contents of the informal interview recorded in P15 during which, in the most unambiguous of terms, an interrogation of PW1 was undertaken by the applicant apparently because the police team did not believe the false “Billie” version given by PW1 during his video interview.

17. These matters did not sit easily with the prosecution case. Regrettably the position taken by the prosecution as to precisely what intention it was alleged the applicant had in suggesting the “Billie” version of events to PW1 during the riverside conversation was not wholly clear at trial. It was towards the end of the evidence in the defence case that the following discussion took place between the judge and the prosecutor during the cross-examination of DW1, the applicant’s supervising superintendent :

“COURT: Your opening seems to tell me that the defendant, in the way he approached Ken at the riverside, was acting on his own or with another or others, but not as part of his police duties, that he might have been protecting someone. Therefore he used that approach by saying ‘Either tell all or take all the responsibility yourself’, which he knew would not be attractive — either propositions would not be attractive to Ah Ken at that stage — and then bring the proposition he really wanted…

MR IU: The Billy perversion.

COURT: … which is — yes. That means by doing, so, as you have told me in the opening, this meant there was no lead to Monkey and other people.”

To which the prosecutor replied :

“MR IU: We thought at the time the reasons for the defendant giving the proposition were along those lines. As I put in my opening, namely, if he’s out there to protect somebody, probably Monkey. That’s what I said in the opening. Having heard the superintendent’s evidence, it’s apparently clear that whatever the purpose the defendant had, suits the police purpose as well. The police now was in fact looking for these people, evidence against these people. The lead — they wanted this man, Ken, PW1, to break and tell all.

COURT: Yes, yes.

MR IU: And they believed that Ken was the prime target, was one of the assailants. Well, that needs to be the proposition that the defendant put to PW1 at the material time; take all responsibility or tell all. I don’t think it contradicts my proposition from the beginning.

COURT: No, it does, because now are you trying to say because of the superintendent’s evidence, you’re saying this is all part of a police tactic to get Ken …

…. Well, then you have no case, do you?”

18. With respect to the prosecutor the allegation against the applicant was far from clear, and the prosecution’s stated position seemed internally contradictory. What had however become abundantly clear during the superintendent’s evidence was that the police investigation was directed towards obtaining evidence, using PW1, against “Monkey”. That that was so was more than amply supported by the contents of P15.

19. The fundamental evidential difficulty the prosecution had was that during the afternoon interview recorded in P15, it was apparent that the applicant was attempting to get from PW1 the truthful version of events and to record that version. That was entirely consistent with the objective of the investigation. For the purposes of the appeal it was entirely irrelevant as to whether that was proper police procedure or not, though doubts as to its propriety may go some way towards explaining the applicant’s decision not to give evidence and his later reluctance to admit to the use of his digital recorder during that informal interview conducted during the afternoon of 25 February 2004.

20. In any event these two matters, that is the initial part of the riverside conversation and the contents of P15, apparently contradicted the prosecution’s position that the applicant intended by a psychological ploy to have PW1 agree to blame an imaginary “Billie” as the instigator of the attack on the two innocent victims so as to preserve “Monkey” from prosecution. On the morning following the informal interview, and still entirely consistently with the defence case, PW1 was asked whether he was prepared to be a prosecution witness against “Monkey”. He agreed.

21. It is difficult to see, even assuming that PW1 was reliable in his evidence concerning the riverside conversation, how the prosecution case had proven the applicant in some way intended to shield “Monkey” from prosecution. There was a fundamental dichotomy between the actual events which took place, even on PW1’s evidence, and the prosecutor’s case that the applicant had tried to preserve “Monkey” from prosecution. This dichotomy required careful resolution before the court found the prosecution case proven, but no such resolution appears in the judge’s reasons for verdict. The judge gave no reason for finding the applicant’s conducting the P15 interview almost immediately after the conclusion of the video recorded interview to have been consistent with an intention by him to pervert the course of justice.

22. There was, in particular, no specific finding that the applicant had conducted the P15 interview only after abandoning an intention to cover up the case against “Monkey”. No suggestion was made in the materials provided to us of any reason for such a dramatic about-turn by the applicant only a short while after concluding the initial video interview with PW1. Nor, somewhat surprisingly, given the discussion with counsel set out above, was there any finding of precisely what the intention of the applicant had been in participating in the riverside conversation with PW1. There was no specific finding that the applicant intended to preserve “Monkey” or any other person from prosecution. There was a general finding that the elements of the offence had been proven.

23. The judge’s reasons concerning both these matters were insufficient. Mr Sham, during the course of the hearing, told us that he no longer opposed the appeal. That, in our view, was realistically the only appropriate course.

24. It should have been apparent to the prosecution at the preparatory stage of this case that there was some difficulty in matching the applicant’s initial statement to PW1 (even according to PW1’s evidence) with an intention to protect “Monkey” and an even more fundamental difficulty in matching the applicant’s interrogation of PW1, recorded in P15 immediately after PW1’s video recorded interview, with any such intention. It was wholly unsatisfactory that the prosecution’s position was still unclear late in the defence case. That uncertainty, in our view, contributed to the judge’s failure to deal properly with the fundamental issue of the applicant’s intent.

25. For these reasons the conviction was unsafe and unsatisfactory and we allowed the application, treated the hearing as the appeal and quashed the applicant’s conviction. In view of the state of the evidence no question of a re-trial ever arose.

D.  The SG’s Decision

19.  The Decision was notified by the letter dated 29 November 2023. Having referred to the application and the Guidelines, the letter stated as follows:

It is important to note that ex gratia payments are only made in exceptional cases, and there is no general entitlement to recompense for wrongful conviction or charge. For example, compensation will not be awarded in cases merely because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge. Compensation may also be refused where there is serious doubt about the claimant’s innocence or where the claimant was wholly or partly to blame for his misfortune.

In determining whether or not the captioned application falls within the Guidelines, the grounds put forward by your client, other information in relation to the case (including, in particular, the Reasons for Verdict of DCCC 523/2006, the Reasons for Judgment of CACC 472/2006, the relevant transcripts of Chan Ying Kin’s “informal interview” recorded on 25 February 2004, your client’s cautioned interview by the Independent Commissioner Against Corruption (“ICAC”) made on 30 Jul 2004, and other available evidence which is pertaining to your client’s guilt or innocence) together with relevant judicial authorities have been considered in detail.

We do not consider your client’s application falls within any of the applicable grounds as set out in the Guidelines. The fact that the Court of Appeal has made some negative remarks on the prosecution is not a proof suggesting your client’s imprisonment resulting from a conviction after trial was due to serious default by the ICAC or the Prosecution.

In any event, there is also serious doubt about your client’s innocence in light of the fact that in none of his official records, did he ever mention about the aforesaid Chan Ying-kin’s “informal interview”, and the fact that your client chose (even though it was his legal right) to remain silent notwithstanding that all of the circumstances of the case cried out for a credible explanation for the secret recording of the informal interview, as well as other circumstantial evidence implicating him including the talk with Chan Ying-kin beside Lam Tsuen River. There was no exceptional circumstance to show that the position which the Applicant finds himself in constitutes an “outstandingly deserving case” for the purpose of the Guidelines either.

Since the Solicitor General is not satisfied in light of the materials available before him that your client’s application for ex gratia compensation should succeed on the merits, you are hereby informed that it has accordingly been rejected.

20.  In summary, the Decision was made on the basis that:

(1)  The wrongful conviction was not the result of serious default by the ICAC or the Prosecution, so the application for compensation fell outside §4(b) of the Guidelines.

(2)  The Applicant’s case was not an outstandingly deserving case, so the application for compensation fell outside §4(c) of the Guidelines.

(3)  There is serious doubt about the Applicant’s innocence, so the application fell foul of §4(e) of the Guidelines.

21.  Though the Decision letter was the only information and reasoning for the Decision originally provided to the Applicant, as a result of these proceedings the Applicant has a copy of the Internal Note drafted by Mr Richard Ma, Senior Government Counsel (Constitutional and Policy Affairs Division), setting out the circumstances and the recommendation for consideration of the SG. The Internal Note gives the full explanation of the consideration and reasoning by the SG (who adopted the consideration and reasoning of Mr Ma).

22.  The Internal Note recorded the grounds for compensation relied upon by the Applicant. As to the ground of ‘Serious default by the ICAC and the Prosecution’, the Internal Note recorded (in my summary) that the Applicant claimed that:

(1)  the circumstances of his case were truly exceptional;

(2)  the CA Judgment showed that the Court was not only of the view that the prosecution failed to prove beyond reasonable doubt the Applicant’s alleged intention to pervert the course of justice, but was also dissatisfied with the logic behind the prosecution’s case;

(3)  hence the CA Judgment clearly reflects the judicial view that the investigating authority and the prosecution did not properly consider the evidence in hand, and construct its case accordingly;

(4)  there was inherent illogicality in the prosecution case until late in the trial.

23.  As to the merits of that ground, and after dealing with the applicable principles, the Internal Note turned to the Applicant’s application for ex gratia compensation as follows:

38. Going back to the instant case, the prosecution relied on the contents of the riverside conversation as told by PW1 as the acts of the offence. PW1’s evidence was accepted by the trial judge. The prosecution is entitled to rely on the evidence from PW1 as sufficient to prove that the riverside conversation took place, which had a tendency to pervert the course of public justice in that the Applicant incited, induced and instructed PW1 to make a false statement to the police concerning the wounding case.

39. The CA quashed the conviction on the basis that the prosecution had failed to sufficiently prove, and the judge had failed to consider whether it had been properly established, that the applicant intended to pervert the course of justice. Thus, to consider whether there is any serious default on the part of the prosecution, the issue is at the time the prosecution decided to commence prosecution against the Applicant, whether there is sufficient evidence to establish that the Applicant, while inciting, inducing and instructing PW1 to make the false statement, had an intent to pervert the course of public justice. As the trial judge found that the evidence of the case was such that she could infer the Applicant’s intention to pervert the course of public justice, it seems that it was not the case that the prosecution had entirely failed to establish intention when they decided to prosecute the Applicant.

40. While there was no direct evidence to establish the intent, the following circumstantial evidence which brought suspicion on the Applicant, when viewed singly and collectively, tended to enable the prosecution to infer that the Applicant did intend to prevent the course of public justice:

(1) The Applicant lied in his police notebook that it was PW1 who had suggested to be taken to a quiet place where he could be questioned. In that event, the Applicant should have brought him back to the police station for questioning. Also, knowing that PW1 was involved in the wounding case, the Applicant should have cautioned PW1 before putting to him any questions, let alone bringing him to the riverside for the talk. That was police malpractice contrary to rule 2 of the Rules and Directions for the Questioning of Suspects and the Taking of Statements Issued by the Secretary for Security 1992. That shows the Applicant intended to tell PW1 or hear from him something that the Applicant did not want to put on record.

(2) During the “informal interview”, the Applicant asked a series of questions which PW1 answered and provided great details about the wounding case. The Applicant however did not ask all such questions in the video recorded interview just held previously.

(3) The Applicant secretly recorded the “informal interview” and thereafter concealed the recorded in his locker.

(4) The Applicant did not mention the “informal interview” in any of the official records (notebook entries, investigation reports or witness statements).

(5) While the Applicant admitted to the ICAC that he had asked PW1 some questions, the Applicant lied that PW1 had disclosed no further information. The Applicant also lied that he had not recorded the “informal interview”. Such lies could be interpreted as showing his consciousness of guilt and might be regarded by the court as evidence that strengthens the case against him.

(6) The Applicant told the ICAC that he had already had suspicion about the “Billie” version given by PW1. If that was the case, the Applicant should have questioned PW1 about the validity of that version in the video recorded interview.

41. The prosecution was therefore justified to form the view that there was sufficient evidence (including circumstantial evidence) in totality to infer the intention of the Applicant for the purpose of laying the charge against the Applicant.

42. The CA also stated that it should have been apparent to the prosecution at the preparatory stage of this case that there was some difficulty in matching the Applicant’s initial statement to PW1 with an intention to protect “Monkey” and an even more fundamental difficulty in matching the Applicant’s interrogation of PW1 immediately after PW1’s video recorded interview, with any such intention. It was wholly unsatisfactory that the prosecution’s position was still unclear late in the defence case.

43. We have dealt with the issue as to whether there is sufficient basis to lay the charge above. As to the criticism that the prosecution’s position was still unclear late in the defence case (by “late in the defence case”, the CA actually meant the stage after DW1 had given evidence when the trial judge started posing questions to the prosecution about the intention of the Applicant) and whether that amounts to a serious default by the prosecution, we would set out our analysis below.

44. It is not disputed that the prosecution has the duty to set out a clear prosecution case. If the prosecution’s position could be clearer when the trial judge raised questions on the prosecution case about the Applicant’s intention, the judge would then be able to deal with the issues raised by the CA such as why the Applicant had conducted the “informal interview” and what the intention of the Applicant had in conducting the riverside conversation with PW1.

45. The way in which the prosecutor presented the prosecution case might have led the CA to criticise the prosecution of the difficulty in matching the Applicant’s initial statement to PW1 with an intention to protect “Monkey” and to match the Applicant’s interrogation of PW1 immediately after PW1’s video recorded interview, with any such intention. Nevertheless, against the whole background of the case (as shown in the “Summary of facts” enclosed at Annex G), there was clear evidence from PW1 that the Applicant, by taking PW1 to the riverside, incited PW1 to give a false statement as particularised in the charge. Besides, there was also other circumstantial evidence set out in paragraph 40 above which brings suspicion upon the Applicant which would enable the prosecution to infer intention that he did intend to pervert the course of public justice.

46. In short, the evidence available as it stood at the time did justify the laying of the charge. In particular, the evidence is sufficient to enable a tribunal of facts to infer intention. While there was evidence that the CA considered as contradictory to the guilty intent, inconsistent evidence is not uncommon in trials, and existence of contradictory is not a bar to prosecution in the first place. It also has to be noted that the issues raised by the CA were never raised by the Applicant as a ground of appeal.

47. It was therefore not a case that the prosecution would have entirely failed to establish the necessary intention when it decided to prosecute the Applicant. The prosecutor could have presented the prosecution case in a better way, which led to the criticism by the CA. However, how the prosecution was handled did not amount to a serious default as discussed in paragraphs 35-37 above.

48. Besides, it is a case that no incorrect information was submitted by the prosecution to the court, nor had the ICAC suppressed material evidence which would help to exonerate the Applicant. The circumstances in which the prosecution’s failure to set out the prosecution case clearly by no means amount to such a high threshold that the Applicant is entitled to ex gratia payment.

24.  As to the question of ‘Serious doubt about the Applicant’s innocence’, the Internal Note stated:

49. Even assuming there is default on the part of the prosecution or the ICAC (which we deny), we do not consider the Applicant is eligible for ex gratia compensation. It must be borne in mind that paragraph 4(e) of the Guidelines sets out the existing policy that “compensation may be refused where there is serious doubt about the claimant’s innocence.”

51. Although the CA quashed the Applicant’s conviction, there are a number of features which, adding up together, cast serious doubt on his innocence:

(i) The Applicant’s taking PW1 to riverside for the talk, whether at PW1’s request or not, suggest police malpractice. As the trial judge puts it, “PW1 is a triad man with a record for violence who the police had been seeking. It is hard to believe this experienced team would have acceded to his request to talk alone with one officer at the riverside when it would appear he was not even handcuffed”.

(ii) If the sole purpose of conducting the “informal interview” is to hear PW1 to tell the truth, it is suspicious that in none of the official records (notebook entries, investigation reports and witness statements) made by the Applicant did he ever mention about the “informal interview” with PW1;

(iii) The Applicant concealed the secret recording by hiding the recorder in his locker. His supervisor, DW3, Superintendent Yu never knew of the secret recording of the “informal interview”. Neither did District Commander, Suen Kwai-leung;

(iv) Although the digital pen recorder was unearthed in the Applicant’s locker and his voice in the secret recording was identified by PW1, the Applicant provided no explanation for the recording. More strangely, the Applicant on 8 July 2005 even turned down the ICAC’s offer and refused to listen to the secret recording;

(v) While one can think of possible reasons for the recording, both sinister and innocent, the Applicant had provided no explanation as to why he denied to the ICAC about the “informal interview”; and

(vi) If the Applicant did hear the “Monkey” version for the first time in the “informal interview”, there is no reason why he did not seek to interview PW1 again under caution that evening to clarify the matter. His notebook indicates the opportunity was there.

52. To conclude, there is serious doubt about the Applicant’s innocence. It would be repugnant if any compensation out of public funds is granted to him. In R (Mullen) vs Secretary of State for the Home Depart [2005] 1 AC 1, which concerned a conviction for conspiracy to cause explosions, Mullen had been illegally deported from Zimbabwe, tried, convicted and imprisoned. After ten years in prison, his conviction was quashed due to the abuse of process. It was never suggested that he was innocent of the offence. He applied for compensation under section 133 of the Criminal Justice Act 1988 and/or ex gratia compensation. The Home Secretary took the view that it would be “an affront to justice” if the respondent were allowed ex gratia compensation. His application was rejected. On appeal, the House of Lords upheld the Home Secretary’s decision of refusing Mullen’s claim in circumstances where there appeared to him no reason to doubt Mullen’s guilt.

53. For completeness’s sake, it is also clear that the facts of the present case do not suggest that paragraph 4(a), (c), (d) and/or (f) of the Guidelines are applicable.

25.  Hence, the conclusion was expressed as follows:

Conclusion

54. In short, evidence available as it stood at the time of prosecution did justify the laying of the charge. Also, no incorrect information was submitted by the Prosecution to the court, nor had the ICAC suppressed material evidence which would help to exonerate the Applicant. Furthermore, there is serious doubt about the Applicant’s innocence. The Applicant is not entitled to compensation under prevailing guidelines for entitlement to ex gratia compensation under the administrative scheme and I so recommend.

26.  The Internal Note is dated 29 November 2023. On its first page, it is recorded that both the SASG(P)2 and the DSG(P) wrote “supported” on the same date. There is also the endorsement of the SG, against the date 30 November [2023], who wrote that for the reasons stated in the Internal Note he agreed that the Applicant is not entitled for ex gratia compensation.

27.  It is the date of that endorsement which gave rise to a complaint raised by Mr Boyton in his written skeleton submissions namely that there was a procedural impropriety in the late endorsement by the SG of a decision already notified to the Applicant. This is because the handwritten endorsement is dated 30 November but the Decision letter is dated 29 November 2023.

28.  It was as regards that apparent chronological mismatch that the SG sought to file the additional affidavit, for which I have given leave. I think the affidavit clarifies the position, and the point was properly no longer pursued by Mr Boyton. In short, the discrepancy arose because the SG was on a duty visit outside Hong Kong when he received an email on 28 November 2023 with a draft of the Internal Note, along with the annexes, for his review and clearance. The draft was in the same terms as the finalised Internal Note endorsed by him in writing on 30 November 2023, after his return to Hong Kong. But the SG had notified his prior agreement to the recommendation on the night of 28 November 2023, as was then reflected in the Decision letter dated 29 November 2023.

E.  The Grounds for Review

29.  In the Form 86 and Mr Boyton’s submissions, the Applicant relied on two main grounds to challenge the Decision, being:

(1)  The Decision was Wednesbury unreasonable/irrational to the extent that no reasonable SG would have made the decision in light of materials available before him (“Unreasonableness Ground”).

(2)  The Decision was made with procedural impropriety (“Procedural Impropriety Ground”).

30.  It is trite that an applicant who asserts Wednesbury unreasonableness/irrationality faces a high hurdle. In this case, the unreasonableness/irrationality is said to arise on three bases – put separately, but where there is some degree of overlap:

(1)  The finding/conclusion that there was no “serious default” flies in the face of the remarks in the CA Judgment.

(2)  The conclusion that there is “serious doubt” on the Applicant’s innocence is inconsistent with the remarks in the CA Judgment.

(3)  The “serious doubt” cast upon the Applicant involved an infringement of the Applicant’s right to the presumption of innocence and right of silence.

31.  The procedural impropriety is said to arise on two bases:

(1)  There was procedural impropriety rising out of the SG’s assessment of whether the default was serious or not.

(2)  As it transpired from the evidence after the making of the judicial review application, the SG’s endorsement was dated 30 November 2023, after the date of the Decision letter.

32.  I have already indicated that, by reference to the further affidavit evidence filed on behalf of the SG, the second aspect of the procedural impropriety complaint has in effect fallen away. I do not propose to address it further.

F.  The Unreasonableness Ground

F.1  Serious Default of Prosecution

33.  As to the complaint about the finding by the SG of “serious default”, Mr Boyton’s submissions may be summarised as follows:

(1)  The CA Judgment contains the Court of Appeal’s remarks, questioning how it could be said that the Applicant could have intended to pervert the course of justice when he went on to interrogate Ken after the VRI with the view of getting the “true story” from Ken.

(2)  The CA Judgment employed terms such as “should have been apparent”, “some difficulty”, “even more fundamental difficulty” and “wholly unsatisfactory”, with regard to the assessment of the strength of the prosecution evidence, as well as the presentation of its case.

(3)  The SG’s reliance on Ken’s evidence to prove the riverside conversation as having had a tendency to pervert the course of justice, and on the alleged lies by the Applicant, ignore the CA Judgment’s comments identifying that there is no room to say that a prosecutor could infer that the Applicant had the requisite intention in light of the evidence.

(4)  In particular, exhibit P15, adduced by the prosecution as part of its case, in fact made its case in effect impossible to prove.

(5)  Had the prosecution stepped back before or at the commencement of the criminal proceedings brought against the Applicant, it would not have proceeded with the charge.

(6)  Reliance by the SG on the fact that the trial Judge accepted the prosecution case – so that the SG could form the view that the prosecution did not entirely fail to establish the Applicant’s intention – is fundamentally misplaced and impermissible in light of the Judge’s ruling being overturned on appeal.

(7)  The conclusions made in the Internal Note downplayed the Court of Appeal’s criticism of the prosecution, and instead of adopting the wording “wholly unsatisfactory” used in the CA Judgment, the Internal Note suggested the phrase “could have presented the prosecution case in a better way”.

(8)  The question of “serious default” focuses on the prosecution and the way it conducted its case, not on the conduct of the Applicant’s defence at trial or case on appeal. It was therefore impermissible for the SG to take into account the supposed lack of a ground of appeal relating to contradictory evidence.

(9)  The endorsement by the SG of Mr Ma’s reasoning and recommendation in the Internal Note demonstrates the Wednesbury unreasonableness in the conclusion that there was no “serious default”.

34.  Mr Boyton also referred to the Prosecution Code at §§5.4 and 5.5, under the heading ‘Sufficiency of Evidence’, which state:

5.4 There must be legally sufficient evidence to support a prosecution; that is, evidence that is admissible and reliable and, together with any reasonable inferences able to be drawn from it, likely to prove the offence.

5.5 The test is whether the evidence demonstrates a reasonable prospect of conviction. To satisfy that test, a prosecutor must make prospective judgments about matters such as:

(a) the evidence available;

(b) any challenge that may be made to the admissibility and/or reliability of the evidence;

(c) the availability, competence and credibility of witnesses, and their likely assessment by the court;

(d) any contrary evidence that may reasonably be anticipated;

(e) likely defences to be raised;

(f) the way in which a reasonable tribunal of fact, properly instructed as to the law, will be likely to act on all of the evidence and arguments in the case.

35.  Mr Hor’s submissions might be summarized as follows:

(1)  The Applicant has hyperbolised the comments made in the CA Judgment, and equated them to actual findings of default, when no such actual findings as to negligence or serious default were made.

(2)  The appeal succeeded because the conviction was found to be unsafe.

(3)  Although some criticisms were made against the prosecution, the appeal was essentially allowed because the case could not have been proved beyond reasonable doubt and the trial Judge had erred.

(4)  The SG was not bound by the CA Judgment, especially in the absence of express findings of serious default and/or negligence, and the SG did not treat as minor what the Court of Appeal had treated as serious.

(5)  In any event, the SG carefully reconsidered the facts of the case and put his mind to various matters before concluding that there was basis for the ICAC and prosecution to have formed the view that the Applicant may have perverted the course of justice and that prosecution was justified.

(6)  Those facts included:

(a)  the Applicant lying in his police notebook;

(b)  the Applicant failing to abide by the Rules and Directions for the Questioning of Suspects and the Taking of Statements;

(c)  discrepancies between questions asked during the informal interview and the VRI;

(d)  the secret recording of the informal interview by the Applicant;

(e)  the concealment of the digital recording pen containing that recording;

(f)  the lack of record and/or declaration of the informal interview and recording pen by the Applicant; and

(g)  the surreptitious attitude of the Applicant when he was being investigated (i.e. lying about not having recorded the informal interview).

(7)  None of those matters or factors have been sufficiently explained by the Applicant.

(8)  The SG formed the view that inconsistent evidence is not uncommon in trials and not about a prosecution in the first place (and the point of inconsistency was not one of the grounds of appeal raised by the Applicant himself).

(9)  The SG did not consider the CA Judgment comments to equate to a finding of serious default.

36.  Having considered the submissions and the materials, I have concluded that the Applicant has satisfied the high threshold of establishing Wednesbury unreasonableness/irrationality as regards the SG’s finding that there was no “serious default”. In my view, and as I think was pointed out in the CA Judgment, it was an obvious error for the prosecution to think that, on the admissible and reliable evidence it might deploy, it was likely to prove the offence, or to demonstrate a reasonable prospect of conviction. In particular, I have taken into account the following matters.

37.  Whilst it is correct that the CA Judgment made no express findings of serious default or a high degree of negligence on the part of the prosecution, that was because such express findings were unnecessary to the criminal appeal process. But it is nevertheless appropriate to consider the criticisms made in the CA Judgment, and whether they can fairly be read as amounting to, perhaps only as amounting to, the identification of serious default or a high degree of negligence on the part of the prosecution.

38.  I can return later to the question of whether, as Mr Boyton suggests, the CA Judgment in effect found the Applicant to be innocent. However, I think it is fair to identify the following as matters which can be drawn from the CA Judgment:

(1)  The totality of matters advanced as part of the prosecution case gave rise to a dilemma, were internally inconsistent, and no attempt was made to identify how the inconsistencies might be reconciled.

(2)  The prosecution case remained unclear even at a late stage in the trial.

(3)  At one point, the trial Judge herself appeared to recognise the possibility that the prosecution actually had “no case”.

(4)  But the wholly unsatisfactory way the prosecution was pursued, and the ensuing uncertainty contributed to the Judge’s failure to deal properly with the fundamental issue of the Applicant’s intent.

(5)  As to that question of intent there was a fundamental dichotomy between the actual events which took place (even on Ken’s evidence) and the prosecution case that the Applicant had tried to preserve Monkey from prosecution.

(6)  The prosecution offered no explanation – and the Judge made no finding – as to how or why the Applicant made a dramatic about turn in pressing Ken to tell the truth, which the Applicant then elicited, so shortly after supposedly concluding the video-recorded interview in which Ken gave the concocted Billie version said to have been induced or incited by the Applicant.

(7)  There as abundantly clear evidence that the police investigation was directed towards obtaining evidence, using PW1, against “Monkey”, which was more than amply supported by the contents of P15.

(8)  On the evidence, the prosecution could not have proved the charge.

(9)  This was recognised by Mr Sham, the SADPP, when he took the only realistic and appropriate course of no longer opposing the appeal.

(10)  The difficulties (a) in matching the Applicant’s initial statement to Ken (even on Ken’s evidence) with an intention to protect Monkey, and (b) even more so in matching the interrogation recorded in P15 with any such intention should have been apparent to the prosecution at the preparatory stage of the case.

(11)  It was wholly unsatisfactory that the prosecution’s position remained still unclear late in the case at trial.

(12)  It was for these reasons that the conviction was unsafe and unsatisfactory.

(13)  On the evidence, no question of a retrial would ever arise.

(14)  Hence, the evidence did not and would not permit a Judge properly directing him or herself to convict the Applicant on the charge.

39.  As a result, I consider that:

(1)  There is force in Mr Boyton’s submission that the Internal Note has downplayed the quality of the comments made in the CA Judgment.

(2)  In my view, it is not an entirely fair way to describe the matter to suggest that CA Judgment said only that the prosecution could have presented its case in a better way.

(3)  What the CA Judgment actually described was a case which was incapable of being proved on the evidence without more, and that that ought to have been apparent to the prosecution even at the preparatory stage of the case.

(4)  Quite simply, the CA Judgment pointed out that the prosecution failed to grapple with (a) the inherent and fundamental difficulties in the parts of the evidence which did not match, and (b) those parts of the evidence which spoke strongly against the Applicant having the intention to pervert the course of justice as alleged.

(5)  Hence, though phrased differently in a way commensurate with the appellate process, the comments in the CA Judgment do seem to me to identify that the Court of Appeal was in reality stating that the prosecution flowed from a serious default or a high degree of negligence.

40.  To put it another way, I think the SG, who is of course not bound by the CA Judgment, has nevertheless departed from the reasoning in the CA Judgment in a way, and to an extent, which was not permissible and gave rise to unreasonableness/irrationality.

41.  I reject Mr Hor’s submission that the diverging outcomes reached by the trial Judge and the Court of Appeal demonstrate that there are respectable arguments both supporting and challenging the prosecution. On the contrary, I do not think it was permissible or rational to take into account any part of the trial Judge’s findings – even her acceptance of the evidence of Ken – when the whole structure of the Judge’s findings was destroyed by the CA Judgment’s conclusion that the Judge had failed to deal properly with the fundamental issue of the Applicant’s intent, when (a) she failed to address or make any finding about the inherently inconsistent and contradictory evidence deployed by the prosecution itself, and additionally where (b) the prosecution’s position being still unclear late in the defence case was described as “wholly unsatisfactory”.

42.  It is also noteworthy that the CA Judgment pointed out that even if Ken’s evidence about the riverside conversation is believed, there remained the irreconcilable inconsistencies and unexplained contradictions in the evidence which rendered impossible any finding that the Applicant had the requisite intention to pervert the course of justice, and tended to show the opposite.

43.  Mr Boyton has also drawn attention to the fact that the Court of Appeal awarded the Applicant his costs below (which he privately funded, as opposed to the legal aid certificate which covered his appeal), and that was after Mr Sham said he could not oppose such an order.

44.  Whilst it is obviously correct that it is not known precisely why Mr Sham took that stance, I think it is fair to draw the inference from the circumstances that – as a very senior prosecutor – he took the view that he could not properly oppose the Applicant’s application for his costs below on any of the usual grounds for so doing. According to the Prosecution Code at §21.6, those grounds may include: (a) the accused has brought suspicion upon himself by his conduct; (b) the accused’s conduct has led the prosecution to assess the case as being stronger than it is; (c) the acquittal of the accused arose from a technicality; (d) the accused failed to reveal at an early and appropriate time a good and valid explanation for his conduct, being either a non-evidential matter or an obvious explanation known only to the accused.

F.2  Serious Doubt as to Innocence

45.  Mr Boyton submitted that the crux of the SG’s serious doubt on the Applicant’s innocence is explained at §51 of the Internal Note (see above). In gist, the serious doubt was formed based on the police malpractice of the riverside conversation, the concealment of the informal interview and the Applicant’s lack of explanation for the denial of the informal interview.

46.  Mr Boyton submitted that various matters – whether viewed singly or collectively – contribute to the unreasonableness in casting serious doubt on the Applicant’s innocence:

(1)  By the CA Judgment, the Applicant was “in a sense exonerated” (Mr Boyton’s phrase) from the allegation of having the intent to pervert the course of justice.

(2)  The correct acceptance that the Applicant should have costs for the trial below provides another basis to say that there cannot have been serious doubt by the prosecution at the time, and by extension by the SG later, as to the Applicant’s innocence. The concession on costs was acceptance by the SADPP (from which the SG should not be entitled to resile) that there was no properly arguable basis for opposing the order for costs by reference to any of the matters under §21.6 of the Prosecution Code.

(3)  There was inconsistency, and indeed a fundamental dichotomy, between the actual events and the prosecution case.

(4)  Doubts as to the propriety of the procedures adopted by the Applicant in investigating Ken and the attack played no part in the question of guilt or innocence – and instead provided some explanation as to the Applicant’s decision not to give evidence and his reluctance to admit the use of his digital recorder during the informal interview.

(5)  That the Court of Appeal stated that the question of a retrial did not arise in view of the state of the evidence identified the appellate court’s view that the evidence was so weak and tenuous that conviction would be set aside for being unsafe and unsatisfactory.

47.  Mr Hor’s submissions in response were in summary that:

(1)  To suggest that the quashing of the conviction by the Court of Appeal means there can be no serious doubt as to the Applicant’s innocence is a non sequitur. The Applicant has not been “exonerated” in the sense suggested by Mr Boyton.

(2)  It is misconceived to suggest that the award of costs in favour of the Applicant means that there cannot be serious doubt as to his innocence. The SG is not bound by the stance taken by the prosecutor at the material time, bearing in mind their different roles and responsibilities.

(3)  The views as to inconsistency in the evidence led to the quashing of the conviction as being unsafe, which is not the same as a finding of innocence.

(4)  The Applicant has still not seen fit to address any of the factual matters relied upon by the SG in finding that there was serious doubt as to the Applicant’s innocence.

(5)  The Court of Appeal would have ordered no retrial against the primary consideration of whether the interests of justice so required, which is a very different question from whether there is serious doubt as to an accused’s innocence.

48.  It is trite that a finding of “not guilty” is not (or is not necessarily) the same as a finding of “innocence”. Similarly, setting aside a conviction on the basis that it was unsafe is not the same as stating that the convicted person was in fact innocent. Further, as already indicated, the question posed to the Court of Appeal and the question addressed by the SG were different. Therefore, I accept Mr Hor’s submission that it is a non sequitur for the Applicant to state that because his conviction was quashed by the Court of Appeal, there can thus be no serious doubt as to his innocence.

49.  As to the concession on costs, I agree with Mr Hor that it is necessary to keep in mind the usual starting position that when a defendant has been brought to trial upon particular charges and found not guilty, he should normally be compensated for the costs incurred in defending the charges. But, despite that general rule, the defendant can be deprived of all or part of his costs, if the judge thinks it is correct in exercising his discretion to do so when looking at the defendant’s conduct generally, so long as such conduct is relevant to the charges he faced. On the other hand, the circumstances in which the prosecution would ordinarily be expected to oppose an order of costs in favour of the defendant after an acquittal are well-settled, including as set out in the Prosecution Code (see above).

50.  I acknowledge that the respective roles of the SADPP and the SG differ. But the SADPP is a very senior prosecutor, and would be expected to approach questions of costs with both the applicable principles and the public purse in mind. In other words, it would be expected that the prosecutor would generally oppose an application for costs if there are apparent bases of opposition which can properly be argued with some realistic prospect of success. As already indicated above, I think it can be fairly assumed that the SADPP in this case said that he could not oppose the costs application because he did not think he could properly argue any of the usual bases of opposition, or because he did not think that any opposition had a realistic prospect of success.

51.  Nevertheless, I also accept that – so long as it would not be irrational to do so – the SG can form a different view of the matters overall as are relevant to his consideration on the application for ex gratia compensation. The consideration required an assessment of the case presented to him in accordance with the relevant principles in evidence. In those circumstances, I accept that it was rationally open to and reasonable for the SG to have concluded the unopposed award of costs did not necessarily bar an overall conclusion that there is still serious doubt as to the Applicant’s innocence.

52.  I also accept Mr Hor’s submission that the Court of Appeal’s recognition of the problems with the evidence is what led to the conviction being set aside as unsafe or unsatisfactory. In my view, that amounted to holding that the Applicant could not safely be found guilty of the offence charged, but that is far from saying that he was necessarily innocent and there could be no serious doubt that he was innocent. Similarly, the question of any retrial does not seem to me to amount to a finding that there could be no serious doubt as to innocence.

53.  In other words, the approach to the matters which led to the setting aside of the conviction, the concession on costs, and the absence of any possible retrial, are or may be of greater force in the context of considering whether there is serious default on the part of the prosecution than in the context of considering whether there is serious doubt as to the Applicant’s innocence.

54.  As I sought to identify in debate with Counsel during the hearing, the question of guilt (which turns on the absence of any reasonable doubt as to guilt) and the question of innocence (which turns on the absence of any serious doubt as to innocence) are in essence dealing with matters at different ends of the guilt or innocence ‘spectrum’.

55.  But, the most telling point is probably as regards the various factual matters relied upon by the SG, which the Applicant has chosen not to address when making his application for ex gratia compensation. It may not have been necessary for the CA Judgment to have addressed those matters, as the Court of Appeal noted. But, that does not logically prevent the SG from looking at, and there was nothing to stop the SG properly looking at and weighing those matters in determining the application for ex gratia compensation. Clearly, different views may be reached on the various matters to be weighed in the balance, but this Court is not concerned with – and must be astute not to be drawn into – a decision on the underlying merits review. In the overall circumstances, I accept that the Applicant has not established that no reasonable and competent SG would have found that there is a serious doubt as to the Applicant’s innocence.

56.  Lastly, I would point out that the decision that it was reasonably open to the SG to have found that there was a serious doubt as to the Applicant’s innocence does not change the analysis as to whether there was a serious default on the part of the ICAC or the prosecution. Those two points are not the flip sides of the same coin. In any event, having looked at the matter iteratively, I have satisfied myself that my conclusion as to serious doubt does not change my conclusion as to serious default in the particular circumstances of this case.

F.3  Infringement of Presumption of Innocence and Right to Silence

57.  The principles applicable to the right to silence are well-settled. Both Mr Boyton and Mr Hor referred me to the case of Lee Fuk Hing v HKSAR (2004) 7 HKCFAR 600 at §§55-56, where it was said:

55. … There is a right to silence. And in consequence of this right, suspected persons in Hong should be – and routinely are – given a caution informing them in unqualified terms that they need not speak. In the whole of the circumstances, it is inappropriate in Hong Kong to use a person’s silence against him in any way.

56. A person’s right against self-incrimination (his right of silence) would otherwise become a possible source of entrapment. It is unfair for a person to have the right to remain silent, and usually to have been reminded of this right through the caution, and then for his silence to be put against him at trial. …

58.  Mr Boyton also refers to Article 11(1) of the Hong Kong Bill of Rights, which provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

59.  However, I think Mr Hor is correct when he says the right to silence relied upon by the Applicant is not engaged, and in any event is inapplicable to the Ex Gratia Scheme. The presumption of innocence and the right to silence specifically arise, as the above authorities show, in the context of a person facing criminal charges and/or a criminal trial. I also agree that an application for ex gratia compensation under the administrative Ex Gratia Scheme is neither of a criminal nature or quasi-criminal nature. In his application, the Applicant was not being investigated or charged with any crime for which he might stand trial, with any criminal or disciplinary consequences. Rather, he chose to make the compensation application, and to disclose whatever materials he wished to disclose or not in support of his application. With the benefit of the legal advice which he had, he would have known of the matters which the SG would consider, including whether there might be any serious doubt as to his innocence, notwithstanding the acquittal on appeal. He could have addressed that.

60.  The irrationality challenge based on the right to silence must fail.

G.  The Procedural Impropriety Ground

61.  The procedural impropriety alleged is said to taint the finding that there was no serious default on the part of the ICAC or the prosecution. In light of my conclusion (see above) that that finding was irrational, it is not strictly necessary for me to consider whether there was in addition any procedural impropriety.

62.  However, I do not think there was. That the SG might have impermissibly departed from the ‘guidance’ in the CA Judgment does not seem to me to be a procedural impropriety as such, though I think it leads in part to the conclusion on irrationality.

63.  Further, the Applicant’s apparent further criticism that the SG failed to have regard to appropriate matters when making the Decision is misplaced. The Internal Note clearly considered in some detail: (1) the prosecution case; (2) the defence case; (3) the nature of the Ex Gratia Scheme; and (4) the comments made in the CA Judgment.

64.  Lastly, I see no prejudice which the Applicant could have suffered which is not already catered for by my decision that the SG’s finding that that there was no serious default was irrational.

H.  Result

65.  In the circumstances, the Applicant’s substantive application for judicial review is dismissed.

66.  As to costs, I presently see no reason to depart from the usual approach that costs should follow the event of the application, so that the Applicant is liable to pay the Respondent’s costs of party and party basis. However, I make that order in the first instance on a nisi basis, which will become absolute if no variation application is made within 14 days. If such a variation application is made, I will deal with it on paper, before proceeding to any summary assessment of costs by reference to the statements already provided by the parties – and when I will give the paying party the opportunity to raise any list of objections.