陳思維 v. 勞工處檢控科

HCAL 1140/2022

[2022] HKCFI 3841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1140 OF 2022

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D E C I S I O N

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A.  Introduction

1.  The Applicant was the employee of a company known as “根記環保工程有限公司” (“Employer”). He gave three witness statements to the Labour Department alleging that the Employer had failed to pay him in violation of the Employment Ordinance Cap 57 (“EO”). Apparently the Labour Department had found some of the complaints established. But by letter dated 27 July 2022, the Labour Department had decided to issue a warning letter against the Employer rather than prosecuting it under the EO (“Decision”). By his Form 86 dated 24 October 2022, the Applicant seeks leave to apply for judicial review of the Decision not to prosecute the Employer.

2.  Having considered the materials before the Court, I consider that this application could be dealt with on paper. This is my Decision.

B.  Background Facts

3.  The Applicant was employed by the Employer since August 2017 at a basic monthly salary of HK$18,000 per month. He sustained injury at work in September 2018, and had been taking sick leave since. He considered himself constructively dismissed in December 2021, he said because the Employer had failed to pay him some disability allowances to which he was entitled. The constructive dismissal was disputed by the Employer.

4.  Apparently, he had been paid 80% of his basic monthly salary for the period to which he was entitled under the statute and that period did not extend beyond 17 November 2021. But the Applicant said he was entitled to more payments and had made three witness statements to the Labour Department in 2020, 2021, and 2022 respectively.

5.  In 2020, he claimed that he was entitled to an agreed pay rise of HK$500 per month, and an annual bonus. This matter was adjudicated by the Labour Tribunal in the same year. He failed in his claim for the pay rise, but succeeded in his claim for the annual bonus.

6.  In 2021, he claimed that the Employer still failed to pay him part of the annual bonus for the year 2018 to 2019 and the annual bonus for 2019 to 2020. He also made complaints to the Equal Opportunities Commission.

7.  In 2022, he claimed that the Employer had failed to pay him various payments, including disability allowances, payments in lieu of taking annual leave, payment for statutory holidays, severance payment and payment in lieu of one month’s notice. The last two payments are said to have arisen from his being constructively dismissed by the Employer. As said, the Employer disputed the constructive dismissal.

8.  The Applicant had indicated that he would be willing to testify against the Employer, if the Employer is to be prosecuted for offences under the EO.

C.  The Decision not to Prosecute

9.  The decision was contained in a letter dated 27 July 2022. The Labour Department said (original in Chinese):

你曾向本處提供資料，並錄下供詞，指你的僱主根記環保工程有限公司涉嫌違返「僱庸條例」。

本處接到你的投訴後，已作出詳細調查，並徵詢律政司的法律意見。經詳細考慮，律政司建議本處不就前述事項向你的僱主提出檢控。而本處已就此事件向上述僱主發出警告信。

You had provided information to this department and had given statements against [the Employer] for suspected violation of the Employment Ordinance.

Having received your complaints, this department had made detailed investigation and sought legal advice from the Department of Justice. The Department of Justice had advised us not to prosecute your Employer in respect of the above matters. This department has issued warning letter(s) against your Employer regarding the above matters.

D.  Proposed Grounds of Review

10.  In the Form 86, the Applicant says the Employer had already twice violated the Employment Ordinance and yet the Labour Department decided not to prosecute the Employer. He says the Decision was both unreasonable and illegal, though the Applicant does not further elaborate on the unreasonableness or illegality. No further grounds or elaboration is provided in the supporting affirmation.

E.  Merits of the Application

11.  The Applicant had made various complaints against the Employer over the years. The 27 July 2022 letter did not identify the exact complaints for which prosecutorial advice was sought from the Department of Justice (“DoJ”) or warning letter(s) was issued. Nor did the Applicant identify which two occasions the Employer was said to have violated the EO. But judging from the facts that a warning letter was issued, it must have been the view of the DoJ or the Labour Department that some violation had occurred.

12.  Whilst the Applicant identified the Labour Department as the putative respondent in the Form 86, it seems that the prosecutorial decision was in fact made by the DoJ and the Labour Department was merely acting in accordance with the DoJ’s advice.

13.  Article 63 of the Basic Law provides that the DoJ shall control criminal prosecutions, free from any interference.

14.  Whether prosecutorial decisions of the DoJ are amenable to judicial review has been discussed by Chow J (as Chow JA then was) in his decision in Tsang Kin Shing v the Secretary for Justice [2019] HKCFI 2215 at §§22-39. In gist, as a matter of Hong Kong law, prosecutorial decisions made by the DoJ are not susceptible to be judicially reviewed on conventional administrative law grounds, but only on the ground of unconstitutionality. That is a result flowing from Article 63 of the Basic Law. The power to control criminal prosecution has been constitutionally assigned to the DoJ and a prosecutorial decision could only be reviewed on the basis that the DoJ has exceeded the constitutional limit of such broad powers given to it by the Basic Law. There is no exhaustive list as to how the DoJ could be said to have exceeded the constitutional powers bestowed on it, but examples include that it has acted under political instructions or acted out of bad faith.

15.  The Applicant has not explained why he says the decision was unreasonable or illegal. But the language alludes to conventional administrative review grounds. As stated, the Decision is not amenable to judicial review on such grounds. (For completeness, I would also state that the Labour Department’s following the DoJ advice/decision not to prosecute is also not susceptible to any identifiable public law challenge, and is not arguable unreasonable.)

16.  From the information available before the Court, there is also nothing to suggest that the DoJ has exceeded the constitutional powers granted to it.

17.  In short, this application does not identify any reasonably arguable grounds with any realistic prospect of success.

F.  Conclusion

18.  Therefore, the application for leave to apply for judicial review is dismissed with no order as to costs.