TSANG HO MING v. HKSAR AND OTHERS

HCAL 1395/2026

[2026] HKCFI 4528

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1395 OF 2026

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 5 August 2026, the Applicant – a now regular applicant for judicial review – again seeks leave to apply for judicial review.  This time, the application arises from two encounters which the Applicant says he had with the same man on 16 October 2024 and 30 April 2025 (together “Encounters”), the man being then unknown to him but who the Applicant now believes is a Police Sergeant with service number 50743 (“PSgt 50743”).

2.  The application seeks leave to challenge a ‘decision’ which the Applicant describes on the Form 86 as follows (sic):

1.  the DECISION of the HKSAR to weaponize the police, to send or allow police officer to unlawfully and unconstitutionally harass, intimidate, covertly and/or openly surveil TSANG HO MING, other than the purpose of legitimate investigation into criminal offense

2.  IN COMPLAINT OF member of hong kong police force unlawfully and unconstitutionally harass, intimidate, covertly and/or openly surveil TSANG HO MING

3.  The Form 86 seeks the following relief (sic):

1.  an emergency preliminary injunction to prohibit the HKSAR from deploying agent provocateur to intimidate and/or carrying out covert or open surveillance on TSANG HO MING, in the absence of a legitimate judicial warrant

2.  a declaration that the HKSAR sending police officer as agent provocateur to follow/intimidate/harass TSANG HO MING is unconstitutional because it violates article 3 and 14 of hong kong bill of rights and article 28 of basic law

3.  a witness summons/subpoena to compel the commissioner of police to produce all recent photo containing the portrait of police sergeant 50743

4.  A witness summons to compel police officer 507432 appear before the court for conducting visual comparison with the photos and videos

4.  Having considered the papers filed by the Applicant, including his verifying affirmation, I am satisfied it is appropriate to deal with this application on the papers.  This is my Decision.

B.  Background

5.  The background facts as asserted by the Applicant can be summarised as follows.

6.  On two occasions (i.e the Encounters), the Applicant had an encounter with the same man in the vicinity of where the Applicant then resided:

(1)  at 12:25pm on 16 October 2024, the man and the Applicant were on the same pedestrian sidewalk heading in opposite directions when the man suddenly stood right in his face and blocked his path, pressing him and saying foul language at him;

(2)  at 8:32am on 30 April 2025, the same man successfully caught the Applicant again at a bus stop and said to him “hi it is me again, and let me film you first”.

7.  On each occasion, the Applicant took a photo of the man using a mobile phone.  Although the man was on each occasion wearing a medical mask over his nose mouth and chin, the Applicant believes that it was the same man on each occasion because of overall likeness, and the man’s use of the same phone model, with the same phone case and design, and an apparent same small black nevus on his left cheek – features shown in the photos taken by the Applicant, and exhibited to his affirmation.

8.  Nevertheless, despite apparently thinking that he had been harassed by the same man twice, it seems that the Applicant did not pursue any complaints or enquiries about the Encounters.  The story then stops until 15 months later.

9.  On 9 July 2026, the Applicant attended at the Chai Wan police station, when the Applicant sought to press charges arising from an alleged assault on him which took place on 24 April 2026.  Present in the interview room were PSgt 50743 and a station sergeant whose service number the Applicant did not record.  PSgt 50743 sought to persuade the Applicant not to pursue or press charges.  After the Applicant played a voice recording of PSgt 50743’s voice, PSgt 50743 said to the other sergeant “I really want to use Cap 136 and treat him [i.e. the Applicant] as an SMH [i.e. suspected mental health problem person]”.  The other sergeant replied “Of course you cannot”.

10.  During the meeting, and by using photos as comparison afterwards, the Applicant recognised PSgt 50743 as the man from the Encounters – whom the Applicant terms an agent provocateur.  By reason of the statistical impossibility of the Encounters, and the interception of the Applicant at the right place and right time, the Applicant believes that he or his phone are being illegally tracked for surveillance, enabling PSgt 507432 to pinpoint his real-time location precisely.  At points in the Form 86, he says that there is probable cause for having that belief.

11.  On 17 July 2026, the Applicant made a report of the Encounters to the police, using an online crime reporting form.  I note that the Applicant only referred to a police officer with service number “50xxx” (i.e. not the full number).

12.  On 29 July 2026, a female police officer called the Applicant to enquire more information about that report.  But the Applicant pretended that he did not remember ever filing the report, to avoid alerting the agent provocateur and attracting further retaliation.

C.  Intended Grounds of Review

13.  In the Form 86, the Applicant identifies the following grounds of review (adopting his introductory description of the grounds, and my summary of his sub-points):

(1)  Ground 1: Covert surveillance of citizen other than for the purpose of criminal investigation is illegal and unconstitutional, not to mention openly harassing citizen by intimidation.

(a)  PSgt 50743 was not at the Encounters to investigate or as a result of suspicion of the commission of any criminal offence by the Applicant.

(b)  Were it otherwise, it would be perverse for the police officer to approach the suspect and pull out his phone to record him, alerting the suspect and defeating the operation.

(c)  The only reasonable inference is that PSgt 50743, whilst wearing casual clothes or whilst off duty, was ordered by some strong political force to harass a citizen for retaliation.

(d)  Though there is no expectation of privacy in a public place, PSgt 50743’s acts were outrageous and aggressive fulfilling the definition of “outrageous government conduct”.

(e)  PSgt 50743’s conduct has made the Applicant reasonably fear for the security of his person, such that it constitutes a violation of Article 28 of the Basic Law and Article 3 of the Hong Kong Bill of Rights.

(2)  Ground 2: Illegality – it is illegal and unconstitutional that the HKSAR ordered PSgt 50743 to be agent provocateur to follow and intimidate the Applicant, and there is probable cause to believe the Hong Kong Police Force aids and abets such unconstitutional behaviour by tracking the Applicant’s location without judicial warrant, because it is impossible for PSgt 507432 tracked the Applicant alone without exotic state resources and instrument, resulting in completely unjustifiable infringement of the right to privacy of the Applicant and the right against unreasonable search.

(a)  There is evidence of deteriorating law and order and human rights conditions in Hong Kong, suggesting a tendency of the executive branch of the HKSAR government to abuse power.  (The Applicant offered three examples.)

(3)  Ground 3: Similar acts of surveillance and harassment resulting in conviction by the UK Central Criminal Court violating constitutional right of privacy of UK citizen committed by former Hong Kong police officer.

(a)  There is a high degree of similarity between the UK case – the facts of which are seen in the sentencing remarks – and the harassing acts of PSgt 50743.

D.  Standing

14.  In the Form 86, the Applicant has drawn attention to previous decisions in which he has been held not to have had sufficient standing.

15.  But I accept that, where the subject-matter of complaint is or arises out of alleged personal harassment or unlawful behaviour directed at the Applicant himself, he would in this case at least reasonably arguably have sufficient standing.  Therefore, leave to apply for judicial review would not be refused on the basis of insufficient standing.

E.  Available Alternative Remedy

16.  Judicial review is a remedy of last resort, and the existence of an appropriate available alternative remedy will often point strongly against the grant of leave to apply for judicial review.  It seems to me that this is such a case.

17.  Shorn of surmise and conjecture – which in any event deprive the intended grounds of review of reasonable arguability – the Applicant’s complaint is about the Encounters, namely the two occasions on which the Applicant says he was harassed and/or intimidated and/or put under surveillance by a man who he says he has since identified as a specific police officer, PSgt 50743.

18.  Indeed, one of the matters or targets of the intended judicial review was expressly in complaint about a member of the Hong Kong Police Force (see above).

19.  I have noted that the Applicant already chose one avenue of seeking a remedy, in reporting the matter to the police.  I acknowledge that, in that report, he failed to give full identification of his alleged harasser/intimidator.  He also denied any recollection of making the report, when an officer telephoned him for further information and follow-up. But the reason given for not giving the full police service number, or not actually pursuing the complaint once made, is difficult to reconcile with the commencement of intended judicial review proceedings which are ordinarily dealt with in open Court, and in which the Applicant has given the full service number, together with other identifying details, with various photographs and stills from video clips.

20.  In any event, the Applicant plainly has the available alternative remedy of making a complaint about what he says is inappropriate or unlawful police behaviour – at specific locations, on specific dates, by a specific police officer – to the Complaints against Police Office (“CAPO”), overseen by Independent Police Complaints Council (“IPCC”) under the statutory provisions in the Independent Police Complaints Council Ordinance Cap 604.

21.  That possibility also seems to me to be more suitable than judicial review proceedings, where CAPO and the IPCC have appropriate powers and procedures for investigation.  Indeed, the Court exercising its supervisory jurisdiction does not ordinarily engage in the kind of fact-finding or investigative process which the Applicant seems to want, evident in his chosen relief items 3 and 4 (see above) of witness summonses.

F.  Merit of Intended Grounds

22.  As I will refuse leave on the basis that there is an available alternative remedy, I need not say much on the intended grounds of review.  It suffices to say the following.

23.  Grounds 1 and 2 assert certain legal principles, which may not themselves be generally controversial (though I make no conclusion on that for present purposes).  But the allegations of specific breach of the principles in any event turn on facts yet to be established – and which are more appropriately investigated in the available alternative remedy.  There are also conjecture and significant gaps or leaps in the reasoning or logic which would be necessary to move from any demonstrated individual circumstances to the targeted ‘decision’ and relief as framed by the Applicant, which render the grounds not reasonably arguable.

24.  Ground 3, which merely asserts similarity between a UK case and the Applicant’s position, is not the identification of a public law ground of review.

G.  Preliminary Injunction

25.  As indicated, part of the relief sought by the Applicant is an emergency preliminary injunction to prohibit the HKSAR from deploying an agent provocateur to intimidate the Applicant or engage in surveillance of him.

26.  It is settled that it would be only in extremely rare circumstances that a preliminary injunction would be granted in judicial review proceedings before the grant of leave to apply for judicial review.

27.  In this case, I have refused leave.  But, for the sake of completeness, I also indicate that I would have refused the grant of any such preliminary injunction.  The last incident of harassment or unlawful surveillance of which the Applicant makes complaint was the second of the two Encounters, on a date around 16 months ago.

H.  Delay

28.  Lastly, I would address the question of the timing or delay in the making of this application.

29.  It is trite that an application for leave to apply for judicial review must be brought promptly and in any event within a long-stop three-month period – unless good reason is shown for extending that time.

30.  In this case, the Applicant has submitted that: (1) the three-month time limit should run from 9 July 2026, as that was the date when the Applicant met, saw and recognised PSgt 50743 in person; (2) only then could the Applicant be more than sure that he was the agent provocateur previously harassing him; (3) the Applicant had to make careful confirmation, otherwise the kind of accusation against such a powerful government without concrete evidence would easily be used against him and/or he would be falsely accused of suffering the mental health disease of persecutory paranoia.

31.  In the light of my dismissal of the application for other reasons, I do not need to make any conclusion on the question of delay.  I would simply say that (1) I do not accept that the three-month time limit ran from a date any later than the second of the Encounters in April 2025, but (2) the practical difficulty until much later in ‘putting two and two together’ that the identity of the man in the Encounters was apparently tied to PSgt 50743 might have provided an arguably good enough reason to extend time.  Therefore, I would not have dismissed the application for leave to apply for judicial review on that basis alone (albeit the question of timing would have remained open for further consideration on any substantive hearing, had there been one).

I.  Result

32.  There is an available alternative remedy for the Applicant to pursue, and in any event the intended grounds of review are highly speculative and have insufficient merit to pass the threshold for the grant of leave. 

33.  The Applicant’s application for leave to apply for judicial review is dismissed.

34.  I make no order as to costs.