ASJAD BAIG v. SECRETARY FOR SECURITY FOR AND ON BEHALF OF DEPARTMENT OF JUSTICE CONSTITUTIONAL AND POLICY AFFAIRS DIVISION

HCAL 673/2021

[2021] HKCFI 3261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 673 OF 2021

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D E C I S I O N

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A. Introduction

1.  The applicant is a non-refoulement claimant.  In 2018, he was convicted of a charge of taking up employment unlawfully but he was eventually acquitted following a successful appeal and a re-trial. Meanwhile, he was imprisoned for about 7 months.

2.  By a letter dated 3 June 2019, he applied for compensation from a government scheme (“Scheme”) which can make ex gratia payments to wrongfully convicted persons.  The Scheme is under the purview of the Solicitor General (“SG”) of the Constitutional and Policy Affairs Division of the Department of Justice (“CPAD” and “DOJ” respectively).  The SG rejected the application on 18 March 2021 (“Decision”).

3.  By his Form 86 and a supporting affirmation, both dated 11 May 2021, the applicant seeks to challenge the Decision.

4.  On 12 May 2021, the Court directed that the putative respondent shall have leave to file and serve evidence in opposition to the applicant’s leave application within 56 days; the applicant shall have leave to file and serve evidence in reply within 28 days thereafter.  The putative respondent filed and served its evidence on 7 July 2021. On 30 July 2021, the Court was notified that the applicant had applied for legal aid.  Thus, the Court extended the applicant’s deadline for filing evidence in reply by 28 days so as to expire on 1 September 2021. The applicant did not file any evidence by the extended deadline.  On 11 October 2021, the Director of Legal Aid notified the Court that the applicant’s legal aid application had been refused.

5.  Having considered the papers, I have decided that this application could be dealt with on paper.

B. Background Facts

6.  The applicant is a Pakistani national who was deported from Hong Kong in 2012.  He entered Hong Kong again in 2015 and has since been remaining in Hong Kong as a non-refoulement claimant.

7.  On 20 June 2018, patrolling police officers saw the applicant handling an electric drill in a depot yard in Sheung Shui and suspected him of taking up employment in breach of his conditions of stay.  The applicant was arrested at the scene and was remanded in custody until he eventually obtained bail from the High Court on 22 January 2019, making a total incarceration period of about 7 months.

8.  On 14 September 2018, he was convicted after trial and was sentenced to about 22 months’ imprisonment at the Shatin Magistracy.  He appealed both conviction and sentence to the High Court.  On 21 December 2018, Toh J allowed the appeal on the basis that the reasons given by the Magistrate were scanty and that she failed fully to explain why the only irresistible inference from the prosecution’s evidence was that the applicant was under employment at the time.  Toh J considered that the proper course was to order a re-trial since, by then, the applicant had not yet served a substantial part of his sentence and that the prosecution’s evidence was not weak.

9.  Afterwards, the applicant was granted bail at the Shatin Magistracy on 22 January 2019 and was eventually acquitted on 23 April 2019 after a two-day retrial.

10.  As noted above, the applicant applied for ex gratia payment from the Scheme by letter dated 3 June 2019.  In the letter, he said the 7 months’ imprisonment was distressing.  He believed the usual sentence was 15 months on a guilty plea.  Taking into account the one-third remission for good behaviour, he had served about 70% of the usual sentence.  He asked that his lengthy imprisonment and the accompanying psychological stress be considered.

11.  The applicant was notified of the Decision by letter dated 18 March 2021.  The applicant was informed that his application for ex gratia payment was considered and rejected by the SG.  The SG first made reference to LC Paper No CB(4) 486/12-14(06) which summarized the guidelines (“Guidelines”) for making ex gratia payment under the Scheme and then explained his reasons for the rejection:

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.

In determining whether or not your application falls within the [guidelines for payment of compensation], the grounds put forward by you, other information in relation to your case (including, in particular, the Statement of Finding of [the first trial], the judgment of [the appeal], relevant transcripts of proceedings of [the first trial], your cautioned interview made on 21 June 2018 at the Sheung Shui Police Station, the photographs taken at the scene by the police, materials relating to your bail application on 16 July 2018, the witness statements of [a police witness], and other available evidence which is relevant to your guilt or innocence) and relevant judicial authorities have been considered in detail.

When considered in the round, there is nothing to suggest that your detention was due to any serious default by the Immigration Department, the prosecution or other public authority.  Whilst you were ultimately acquitted of the charge upon a retrial ordered by the appellant court, this was a case of the prosecution not being able to prove its case beyond reasonable doubt.  There was no exceptional circumstance to show that the position which you find yourself in constitutes an “outstandingly deserving case” for the purpose of the Guidelines either.  In any event, there is serious doubt about your innocence primarily in light of the circumstances of your arrest and the explanation you gave under caution.

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

C. Grounds of review

12.  The applicant appeared to have misunderstood that the Decision was made by the Executive Officer who issued the 18 March 2021 letter and directed his complaints against him.  But I shall take those complaints as directed against the SG.  The applicant also made some complaints clearly directed at his non-refoulement claim in both his Form 86 and his affirmation, which is not the subject of the Decision, so I shall ignore them.

13.  The grounds in the Form 86 comprise 8 short paragraphs, most of which are general allegations without any elaboration.  The allegations are that the SG wrongly assessed his application and the Decision reached was unreasonable in the Wednesbury sense, unfair, failed to attain the high standard of fairness as required under the HKBORO or the “Administrative arrangement test” and the conclusion was “pre-conceived”.

14.  The applicant also complained that the SG had failed to make sufficient enquiries before he made the Decision, and failed to allow sufficient time and chance to the applicant to arrange relevant evidence for his claim for ex gratia payment.  The applicant also said he was mentally and physically tortured “at the Behest of and in full collusion of the Police and the Correction Services Department”.  He did not provide any details or evidence to substantiate that allegation.  He also said the SG failed to take “such argument” into account without pointing out what argument he was referring to.

D. Is there merit for the grant of leave?

15.  The Scheme is an administrative scheme operated by the Government with the aim to pay compensation to persons who have suffered a miscarriage of justice, including those who have been wrongfully convicted and spent time in custody.  The Guidelines for the administration of the Scheme, referred to by the SG in the 18 March 2021 letter, are as follows:

3. As for the payment of ex gratia compensation (i.e. compensation NOT arising from any legal or statutory obligations) under the administrative scheme, the Solicitor General with the assistance of counsel within the Legal Policy Division of the Department of Justice is responsible for considering whether a particular case falls within the guidelines.  If he decides that a case falls within the administrative guidelines, the amount payable is determined by the Secretary for Financial Services and the Treasury, taking into account the views of the Department of Justice and any other affected department or bureau.

4. In short, the administrative guidelines for the payment of ex gratia compensation are summarised as follows:

(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.

5. Applications for ex gratia payments under the administrative scheme are handled by the Solicitor General with the assistance of counsel within the Legal Policy Division of the Department of Justice. Where necessary, outside independent counsel’s advice will also be sought. The Solicitor General is solely responsible for the final decision having regard to the administrative guidelines and all relevant circumstances of each case.”

16.  Generally speaking, the SG should consider granting ex gratia payment to three types of cases as described by §4(a), §4(b) or §4(c).  Whilst it is not expressly prohibited in the Guidelines, §4(g) clearly cautions against extending ex gratia payment beyond those three categories.  §4(d), §4(e) or §4(f) further provide for the types of cases where the SG may refuse the application.  For convenience, I shall refer below to §4(a), §4(b) or §4(c) as the favourable categories and §4(d), §4(e) or §4(f) as the unfavourable categories.

17.  The Scheme was considered by the Court in A v Secretary for Justice [2020] HKCFI 427.  There, the application for ex gratia payment was rejected on the basis that there was serious doubt about the applicant’s innocence, i.e. it fell within §4(e).

18.  The Court stated that an applicant of the Scheme had no legal entitlement to be paid compensation, the granting or not granting of which is a matter of discretion for the Government.  In a judicial review challenge against the SG’s decision, the conventional approach applies; the Court does not conduct a merits assessment of the SG’s decision, but will only review the SG’s exercise of discretion on the usual grounds of illegality, Wednesbury unreasonableness and procedural unfairness.  The SG is not bound to grant ex gratia payment to a person whose case falls within the current policy, nor is the SG bound to refuse ex gratia payment to a person whose case falls outside the policy.  There are also good policy reasons for the Government to be circumspect about making ex gratia payments under the Scheme.  See §§40-41 of the Judgment.

19.  As to §4(e) of the Guidelines, the Court also stated that whether there is serious doubt on the applicant’s innocence is essentially a matter for the SG to decide.  The SG is not bound by the decision of the criminal courts although he should normally not depart from the reasoning underling the court judgment.  The SG is also entitled to take into account materials which were not adduced in the criminal trial or considered by the appeal court.  The weight that should be given to materials which are considered by the SG is also a matter for him to decide.  Even if there could be reasonable arguments for and against the view reached by the SG, that is far from being sufficient for the Court to interfere with his decision.  See §§42-49 of the Judgment.

20.  Whilst the Court focused on §4(e) of the Guidelines in the A v Secretary for Justice case, clearly the Court’s approach is equally applicable to the other favourable/unfavourable categories as described in §4.

21.  As can be seen in the Decision, the thrust of the SG’s reasoning is that the applicant did not fall within any of the three favourable categories in §4(a), §4(b) or §4(c) of the Guidelines.  The applicant did not receive a free pardon.  There is nothing to suggest that the applicant’s detention was due to any serious default by the law enforcement agents, the prosecution or other public authorities.  The SG also considered that there was no exceptional circumstance so as to make the applicant’s case outstandingly deserving.  The SG went further and stated that he also considered the case fitted into the unfavourable categories as described in §4(d) and §4(e), namely that his acquittal was a case of the prosecution failing to prove its case beyond reasonable doubt, and that there was doubt as to the applicant’s innocence.

22.  Before the SG made the Decision, he had the benefit of a detailed internal note dated 16 March 2021, prepared by a Senior Government Counsel for the purpose of making a recommendation about the applicant’s application.  The internal note comprised of 23 pages and 53 paragraphs with 11 attachments.  It suffices for present purposes to note that in the internal note, detailed reference had been made to and analysis performed of the following materials: (a) 6 photographs taken by the police officer at the crime scene, (b) the record of the applicant’s cautioned interview, (c) the applicant’s previous conviction records, (d) the Statement of Findings made by the Magistrate in the first trial, (e) the judgment of the appeal against conviction and sentence, and (f) the transcript of “the reasons for verdict” of the re-trial.

23.  The SG agreed with the SGC’s recommendation and settled the 18 March 2021 letter which contains the Decision.

24.  The SG’s Decision was reached after he had made all the enquiries, obtained all the materials he considered relevant and considered them under the Guidelines.  It was a proper and fair exercise of his discretion and was far from being unreasonable in the public law sense.  There is also no evidence to suggest that the Decision was reached illegally or by an improper process.

25.  As to the applicant’s allegation that the SG did not allow him sufficient time to arrange his evidence for his application, I agree with the putative respondent (as stated in its affidavit dated 7 July 2021) that the applicant was at liberty to submit any further evidence to the SG between June 2019 and March 2021 (when the Decision was made) but he chose not to do so.  No viable grounds of review could possibly arise from this.

E. Conclusion

26.  The applicant’s leave application is therefore dismissed.  In the overall exercise of my discretion, I shall make no order as to costs.