LAI KWOK KEUNG v. LEUNG WAN MING AND ANOTHER

[English translation - 英譯本]

HCAL 102/2021

[2021] HKCFI 1245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 102 OF 2021

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JUDGMENT

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1.  This is an application by the applicant for leave to apply for judicial review, for the reason that his claim for compensation respectively pursuant to Article 11(5) of the Hong Kong Bill of Rights[1] and on the ground of serious default by the police had been refused by the Department of Justice. The putative respondents named by the applicant seemed to be Mr Leung Wan Ming and the Solicitor General of the Department of Justice.

2.  The applicant did not request a hearing. Having considered paragraph 6 of Practice Direction SL3, I found it appropriate and so I made a determination without a hearing.

Background

3.  On 31 July 2019, the applicant wrote to the Secretary of Justice, pointing out the followings:

(1)  On 16 July 2015, he was sentenced to a term of imprisonment for 8 years and 1 month[2] after being convicted of the offence of Trafficking in a Dangerous Drug;

(2)  On 30 August 2016, his appeal was allowed[3] and the Court of Appeal ordered a retrial;

(3)  On 20 March 2018, he was retried at the Court of First Instance of the High Court and found not guilty; and

(4)  He had served 1 year and 4 ½ months’ imprisonment for this case.

4.  He made an application to the Department of Justice to claim compensation in a total sum of $10,993,558 pursuant to Article 11(5) of the Hong Kong Bill of Rights and on the ground that he had spent time in prison following a wrongful conviction resulting from serious default by the police.

5.  On 6 August 2020, Leung Wan Ming, an Executive Officer of the Legal Policy Division of the Department of Justice, informed the applicant by letter that his application had been considered by the Deputy Solicitor General[4] (“the Deputy Solicitor General”), who decided that no compensation would be made to him.[5]

6.  On 8 August 2020, the applicant sent an e-mail to the Department of Justice, putting forward his case regarding the matter.  Though it was not explicit, he seemed to be asking the Department of Justice to reconsider his application.[6]

7.  After that, the applicant sent a number of e-mails and letters to the Department of Justice.[7]

8.  On 9 December 2020, Executive Officer Leung Wan Ming informed the applicant by letter that the Deputy Solicitor General maintained the decision.[8]

9.  On 31 December 2020, the applicant sent an e-mail to the Department of Justice, the circumstances of which were more or less the same as those described in paragraph 6 above.[9]

10.  Between 9 December 2020 and 5 January 2021, the applicant sent several e-mails to the Department of Justice.[10]

11.  On 6 January 2021, Executive Officer Leung Wan Ming issued a letter to the applicant[11], reiterating the decision of the Deputy Solicitor General as well as indicating that there was nothing further to add regarding his application.

The legal basis of the applicant’s application for compensation

12.  There are currently two compensation arrangements in Hong Kong in respect of wrongful conviction.[12]

13.  One of the arrangements is made according to Article 11(5) of the Hong Kong Bill of Rights, which states as follows:

“When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.”

14.  The other one is the payment of ex gratia compensation under the administrative scheme operated by the Government.

15.  According to the discussion paper of the Legislative Council Panel on Administration of Justice and Legal Services dated 25 March 2014[13], the administrative guidelines for the payment of ex gratia compensation are summarised as follows:

(1)  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.

(2)  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.

(3)  Aside from guidelines (1) and (2), compensation may be payable in outstandingly deserving cases.

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

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

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

(7)  From the perspective of public policy or administration, extending compensation beyond guidelines (1), (2) and (3) to persons who have suffered loss in the ordinary course of the criminal process (for example, to those to whom guideline (4) 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.

16.  Compensation would include:

(1)  Pecuniary losses

(a)  Loss of earnings (including, where relevant, loss of future earnings).

(b)  Losses and expenses reasonably incurred by the claimant’s family.

(c)  Any other ascertainable losses.

(d)  In so far as they have been borne by the claimant or his family and have not already been reimbursed, such legal expenses as he reasonably incurred in the original proceedings in which he was convicted.

(2)  Non-pecuniary losses

(a)  Loss of liberty.

(b)  Damage to character and reputation.

Reasons for rejection by the Department of Justice

17.  According to the letter from the Department of Justice dated 6 August 2020[14], the applicant’s application was rejected for the following reasons:

(1)  Considerations for the administrative scheme on ex gratia compensation:

(a)  Even though the Court of Appeal quashed the conviction of the first trial[15], it pointed out:

(i)  the charge was serious; and

(ii)  the evidence was sufficient for a reasonable jury to convict him;

and ordered a retrial;

(b)  Between 13 November 2015 and 12 July 2016, the court had refused the four applications for bail pending appeal made by the applicant.  It was not until 23 November 2016 that he was granted bail awaiting retrial;

(c)  At the retrial, even though the trial judge found that some of the confession evidence was not admissible, this did not suggest serious default by the police or the prosecution;

(d)  The aforesaid confession evidence was not the only evidence against the applicant; and

(e)  The overall conduct of the applicant, including what he did to resist the investigation of police officers, could be regarded as bringing suspicion upon himself.

(2)  Considerations for Article 11(5) of the Hong Kong Bill of Rights: As this case does not involve a conviction of a criminal offence by a final decision where subsequently a new fact shows conclusively that there has been a miscarriage of justice, it does not fulfil the requirement of this provision.

Discussion and consideration

18.   The allegations against the applicant can be summarized below.[16]

19.   At around 10:30 pm on 2 October 2013, the applicant was sitting on the driver’s seat of a private car parked on a street, holding something in his left hand. When a police officer asked the applicant to open the car door, he acted in a way that appeared to be intending to drive off and flee. Having opened the car door successfully and handcuffed the applicant, the police officer found between the applicant’s legs on the driver’s seat a plastic bag containing about 26 grammes of a dangerous drug, ice. The police officer said that the applicant admitted that he had bought the dangerous drug for his own consumption.

20.   The present application involves the applicant being tried twice for the offence with which he was charged, and eventually he was found not guilty.

21.   At the first trial, the applicant did not testify, but called a number of witnesses. Their testimony had nothing to do with the circumstances at the scene. The stance of the defence was that the police officers planted evidence to frame him; he did not make any confession; all the evidence against him was fabricated by the police officers; and he had nothing to do with the drug involved in the case.[17]

22.   As aforesaid, his conviction in the first trial was quashed by the Court of Appeal.

23.   The reasons for quashing the conviction are important factors for considering whether the applicant should be granted compensation.

24.   In that appeal, there was only one ground of appeal, which focused on whether the summing up by the trial judge in directing the jury was not fair and did not involve the strength of the evidence. The Court of Appeal came to the view that the way the trial judge dealt with it might have given a reasonable bystander the impression and perception that he was not impartial and that the applicant did not have a fair trial.[18] This is also the only ground for allowing the appeal.

25.   It follows that the circumstances of which did not fall within the scope of Article 11(5) of the Hong Kong Bill of Rights[19].

26.   The Court of Appeal had the following conclusion[20]:

“The charge of the present case was extremely serious, and the evidence against the applicant was sufficient for a reasonable jury to convict him. [21] Therefore, upon the application of the prosecution, this court ordered that the case be reverted to the Court of First Instance and be retried by another judge together with a jury. We ordered that the applicant be remanded pending retrial and directed that a retrial be conducted as soon as possible.”

27.   Accordingly, if the Deputy Solicitor General opined that there was serious doubt about the applicant’s innocence, it was reasonable and well-founded for him to hold such a view, and the refusal of the payment of compensation was justified[22].

28.   I also take into account whether the result of the second trial revealed that the refusal of the payment of compensation was improper.

29.   That trial did not fall within the scope of Article 11(5) of the Hong Kong Bill of Rights either.

30.   At the second trial, the prosecution called the police officers involved in the case. The applicant testified this time. He said that he was assaulted by the police officers; the drug concerned was simply not on board the car; and the police officers fabricated the statements. Same as at the first trial, he called defence witnesses who were not present at the scene at the material time.

31.   The evidence originally against the applicant included, as alleged by the prosecution, the oral confession he made and the written records he signed in confirmation. The defence objected to the production of the evidence to the court. Therefore, a voir dire was held to deal with it.

32.   At the conclusion of the voir dire, the trial judge pointed out that while some of the applicant’s testimony was not credible, the police officers’ testimony was also unreasonable, showing obvious signs of concealment of the fact. The trial judge found that:

(1)  the applicant did not take part in the taking of the written records voluntarily; and

(2)  given the circumstances, he could not be sure that the oral confession was made voluntarily.

Therefore, the alleged confession by the applicant could not be produced in court as evidence.[23]

33.   The material issues at the trial before the jury were as follows[24]:

(1)  whether the applicant “was sitting” on the drug involved as alleged by the prosecution;

(2)  whether he knew that the substance was a kind of drug;

(3)  if he was in possession of the drug, whether it was for the purpose of trafficking.

34.   Eventually, the jury returned a verdict of not guilty on the charge of trafficking in a dangerous drug against the applicant.

35.   A point worth noting is that the trial judge did not direct the jury that if they could not be sure that the applicant was guilty of the charge of trafficking in a dangerous drug, they could consider whether they could find him guilty of the charge of possession of a dangerous drug. Under such circumstances, it was possible that the jury simply was not sure that the applicant was in possession of the drug; and it was also possible that the jury was sure that he was in possession of the drug, but just failed to draw the inference that it must be for the purpose of trafficking, especially when the quantity of the drug involved was not very large.

36.   According to the administrative guidelines for payment of ex gratia compensation[25], the material consideration is whether the applicant was wrongfully charged resulting from serious default by the police. One must take into account that:

(1)  compensation would not be paid simply because the prosecution was unable to prove its case beyond reasonable doubt in relation to a particular charge; and

(2)  compensation may be refused where there was serious doubt about the claimant’s innocence.

37.   The Deputy Solicitor General came to the view that the trial judge’s decision to disallow the production of the confession evidence in court did not suggest that there was serious default by the police or the prosecution. Such judgment is not unconscionable.

38.   The circumstances of the evidence, same as another observation made by the Deputy Solicitor General, were that apart from the confession evidence, there was other evidence in support of the prosecution in the case.

39.   The verdict of the jury was likely to reflect that they were just not sure that the prosecution had proved beyond reasonable doubt that the defendant was guilty of the charge of trafficking in a dangerous drug.

40.   The Deputy Solicitor General pointed out that having considered the facts of the case, he came to the view that none of the circumstances where compensation might be payable as set out in the administrative guidelines was applicable to the application of the applicant.

41.   The applicant failed to demonstrate how the Deputy Solicitor General had erred in his judgment. In my view, the Deputy Solicitor General’s judgment was reasonable and well-founded. This is definitely a case where there was serious doubt about the applicant’s innocence.

42.   The grounds for judicial review can fall under the following four main headings[26]:

(1)  Illegality/Error of law

An inferior court or tribunal or a public authority exercising public functions acts without jurisdiction or exceeds its jurisdiction. Where a public body makes a finding of fact which is unsupported by any evidence or based upon a view of the evidence which could not be reasonably held, it has erred in law.

(2)  Procedural impropriety

This includes acting contrary to the rules of natural justice and failing to comply with the procedural rules that are expressly laid down by the legislative instrument conferring jurisdiction on the decision-maker. A decision will be procedurally improper if the decision-maker is biased or if a fair-minded and informed observer having considered the facts would conclude that there was a real possibility of bias on the part of the tribunal or decision-maker. 

(3)  Unreasonableness

The relevant decision is unreasonable according to the test in Wednesbury[27].

(4)  Proportionality

If the constitutionally protected rights are restricted and the restriction of which is disproportionate, it may constitute a ground for judicial review.

43.   The Court of Final Appeal pointed out in Po Fun Chan v Winnie Cheung[28] that:

(1)  the requirement for leave to apply for judicial review was an important filter to prevent public authorities from being unduly vexed with unarguable challenges and uncertainty as to the validity of their decisions; and

(2)  only a reasonably arguable claim which enjoyed realistic prospects of success should be given leave to proceed.

44.   The applicant failed to justify that the decision made and the process of dealing with it by the putative respondents was illegal or unreasonable under the public law. The applicant also failed to show what he advanced were reasonably arguable grounds for judicial review. I therefore will not grant leave to the application for judicial review.

45.   The applicant put down “Chan Wan Ming” (Executive Officer) in the column for putative respondent. If it was his intention to list Leung Wan Ming as the putative respondent, it would be groundless. This is because he (sic) was only responsible for issuing a letter notifying him of the Deputy Solicitor General’s decision under the authority of the Solicitor General. Nevertheless, since I have decided not to grant leave to the application for judicial review, this is not a matter that needs to be dealt with further.