KWOK CHEUK KIN v. 律政司刑事檢控專員梁卓然

HCAL 2882/2018 &

HCAL 687/2019

[2019] HKCFI 2215

HCAL 2882/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2882 OF 2018

________________________

________________________

AND

HCAL 687/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 687 OF 2019

________________________

________________________

________________________

(Heard together)

________________________

DECISION

________________________

INTRODUCTION

1.  These applications for judicial review concern the Secretary for Justice’s decisions, publicly announced on 12 December 2018, not to prosecute (i) Mr Leung Chun Ying (“Mr Leung”), the former Chief Executive of the HKSAR, and (ii) the Hon Holden Chow Ho-ding (“Mr Chow”), a member of the Legislative Council, for various alleged criminal offences which will be further described below.  The principal issue which arises for determination is whether those decisions are amenable to judicial review.  On the basis of the current state of the authorities in Hong Kong, it is clear that those decisions can be reviewed by the court only on the ground that the Secretary for Justice has acted outside the constitutional limits of her power to control criminal prosecutions under Article 63 of the Basic Law (“BL 63”).  It has not been shown that such ground exists, or arguably exists, in the present case.  Accordingly, the two applications for leave to apply for judicial review stand to be dismissed.

BASIC FACTS

(i)     The UGL Incident

2.  DTZ Holdings plc (“DTZ”) was a commercial real estate company listed in the United Kingdom with offices in 145 cities and 43 countries.  In December 2006, Mr Leung was appointed as a director of DTZ.  In February 2007, Mr Leung was further appointed as the Chairman of what has been referred to as “DTZ Asia Pacific”.  It is not clear on the materials before the court whether DTZ Asia Pacific is a branch of DTZ operating in the Asia Pacific region, or a separate legal entity.

3.  As a result of the global financial crisis in 2008, DTZ came under financial difficulties and suffered huge losses during 2009-2011.  It was indebted to the Royal Bank of Scotland (“RBS”) for around £110 million, but its majority shareholder was reluctant to inject more funds into DTZ to service its debts.  On 17 October 2011, RBS engaged Ernst and Yeung (“EY”) for advice, which led to a “fast-track” sale of DTZ.  On 8 November 2011, the board of DTZ resolved that UGL Limited (“UGL”), a company listed in Australia, would be the “preferred bidder” in the rescue takeover of DTZ.

4.  On 24 November 2011, DTZ announced that Mr Leung had resigned from the Board of Directors of DTZ, and also as the Chairman of DTZ Asia Pacific, in order to campaign for election as the next Chief Executive of the HKSAR.  DTZ further stated that Mr Leung would step down as a director of DTZ with immediate effect, and his resignation as the Chairman of DTZ Asia Pacific would take effect at or before the end of January 2012.  Pausing here, it may be noted that, according to a subsequent statement from the office of Hong Kong Chief Executive dated 8 October 2014, Mr Leung’s resignation from “DTZ” took effect on 4 December 2011.  It is not entirely clear, however, from that statement whether the resignation there referred to related to Mr Leung’s position as a director of DTZ or as the Chairman of DTZ Asia Pacific.

5.  On 2 December 2011, UGL and Mr Leung entered into a written agreement (“the UGL Agreement”), under which UGL agreed, subject to completion of UGL’s acquisition of various subsidiaries of DTZ (“the DTZ Group”), to procure two payments, each of £2,000,000 (totalling £4,000,000), to Mr Leung on the first and second anniversary of completion of the acquisition. The payments were subject to certain possible deductions which are not relevant for the present purpose.  As part of the UGL Agreement, Mr Leung agreed (inter alia) to (i) provide such assistance in the promotion of the UGL Group and the DTZ Group as UGL might reasonably require, including but not limited to acting as a referee and advisor from time to time “provided that such assistance does not create any conflict of interest”[1]; and (ii) support the acquisition of the DTZ Group by UGL and not to make any statements (whether public or private) criticising the purchase, or disparaging any member of the DTZ Group or any of their officers or employees.

6.  On 4 December 2011, UGL completed the acquisition of the DTZ Group.

7.  On 25 March 2012, Mr Leung was elected as the 3^rd Chief Executive of the HKSAR, with his term of office commencing on 1 July 2012.

8.  The UGL Agreement came to public attention on 8 October 2014 when an Australian media agency published a detailed report of it in the The Sydney Morning Herald and The Age.  On the same date, the office of the Hong Kong Chief Executive published a statement, stating (inter alia) that the payments made under the UGL Agreement to Mr Leung arose from “Mr Leung’s resignation from DTZ, not any future services to be provided by him”. The public statement omitted any reference to the fact that under the UGL Agreement, Mr Leung had committed himself to providing further services to the UGL Group and DTZ Group as mentioned in paragraph 5 above.

9.  On 9 October 2014, UGL issued a media statement claiming that “the vendor” (of the DTZ Group), RBS and their advisors “played a significant role in initiating and negotiating [the] terms [of the UGL Agreement] with Mr Leung”.  On the other hand, it was mentioned in a news report in The Sydney Morning Herald published on 8 October 2014 that both EY and the former chairman of DTZ (Tim Melville Ross) had claimed that they did not know about the arrangement or deal between UGL and Mr Leung.

(ii)     The alleged collusion between Mr Leung and Mr Chow

10.  On or about 2 November 2016, the Legislative Council formed a select committee (“the Select Committee”) to inquire into the aforesaid “UGL Incident”.  On 3 February 2017, Mr Chow was elected as the Deputy Chairman of the Select Committee.  On 1 March 2017, the Legislative Council Secretariat issued a paper setting out the “Proposed Major Areas of Study” to be undertaken by the Select Committee for consideration by the members of the Select Committee.  The Proposed Major Areas of Study consisted of 4 main topics, namely:

(1)     Background, nature and details of the agreement between Mr Leung and UGL signed in 2011;

(2)     Declaration requirements under Article 47 of the Basic Law and the system of declaration of interests by Members of the Executive Council;

(3)     Conflicts of interests; and

(4)     Taxation issues.

A number of sub-issues were stated under each of the 4 main topics, the details of which it is not necessary to set out in this decision.

11.  On 25 April 2017, the Select Committee discussed 40 odd amendments to the Proposed Major Areas of Study put forward by Mr Chow. However, it was later discovered, apparently by the Legislative Council Secretariat in or about May 2017, that the amendments were in fact prepared or drafted by Mr Leung.  On 19 May 2019, Mr Chow withdrew from the Select Committee with immediate effect.

(iii)    The decision not to prosecute Mr Leung and Mr Chow

12.  Subsequently, complaints were made to the ICAC against Mr Leung and Mr Chow for alleged offences of “corruption” and “misconduct in public office” arising from (i) Mr Leung entering into the UGL Agreement and receiving payments thereunder during the time when he was the Chief Executive of the HKSAR, and (ii) suspected interference by Mr Leung and Mr Chow with the Select Committee’s inquiry into the UGL Incident.

13.  On 12 December 2018, the ICAC issued a press release stating that the Department of Justice had advised that there was insufficient evidence to support a reasonable prospect of conviction against Mr Leung or Mr Chow for any criminal offence in respect of the matters mentioned above, and it was decided, with the endorsement of the Independent Operations Review Committee, that no further investigative action would be taken by the ICAC.  On the same day, the Department of Justice also issued a press release stating that a decision had been made not to institute criminal prosecution against Mr Leung and Mr Chow.  In the Press Release, the Department of Justice referred to the prosecution criteria under the “Prosecution Code”, which provided that a prosecutor must consider two issues in deciding whether to prosecute, namely (i) whether there was sufficient evidence to justify instituting or continuing proceedings (the test being whether the admissible evidence demonstrated a reasonable prospect of conviction), and (ii) if there was sufficient evidence, whether the public interest required a prosecution to be pursued.  The Department of Justice further stated that:

(1)     the decision not to prosecute Mr Leung and Mr Chow was solely based upon insufficiency of evidence;

(2)     in relation to the receipt of £4,000,000 by Mr Leung, the totality of the evidence fell short of establishing that DTZ did not consent to Mr Leung accepting the monies or that his conduct fell within the mischief of the offence of accepting an advantage by an agent contrary to Section 9 of the Prevention of Bribery Ordinance (Cap 201) (“the Section 9 Offence”), and thus there was no reasonable prospect of conviction of a corruption charge against Mr Leung;

(3)     as to the absence of declaration of interests by Mr Leung to the relevant authorities, since there was no conflict of interest on his part, there was no legal requirement for him to declare the amounts that he was to receive, and hence the absence of declaration did not constitute any offence of misconduct in public office (“MIPO Offence”); and

(4)     as regards the submission of amendments to the Proposed Major Areas of Study, the amendments would not affect the proper functioning of the Select Committee, and there was insufficient evidence to prove that such misconduct was serious enough to establish a MIPO Offence.

14.  On 26 December 2018, at a media session at the Hong Kong International Airport, the Secretary for Justice stated, inter alia, the following:

“The policy of the Department of Justice (DoJ) in dealing with prosecutorial decisions has been to make the decision within the department itself. Therefore, unless the case involves a member of the DoJ, there would not be outside counsel being engaged. The decision as to why a particular case is or is not prosecuted, is a matter that relates to the case, and I cannot comment on any specific case, in particular any ones that are under judicial review or other judicial processes.”[2]

15.  On 16 January 2019, the Secretary for Justice gave a further explanation in the Legislative Council of the circumstances in which outside counsel would be engaged, as follows:

“(2) The briefing out of criminal cases has two parts, which are before prosecutorial decision is made and after prosecution. Regarding the former one, it is a norm of the DoJ to make prosecutorial decision by members of the DoJ. When a case involves member(s) of the DoJ, it is appropriate to brief out the case for legal advice. Further, depending on the need of the case, the DoJ, as it previously mentioned to this Council, may resort to briefing out when:

(a) there is a need for expert assistance where the requisite skill is not available in the DoJ;

(b) there is no suitable in-house counsel to appear in court for the HKSAR;

(c) the size, complexity, quantum and length of a case so dictate;

(d) it is deemed appropriate to obtain independent outside counsel’s advice or services so as to address possible perception of bias or issues of conflict of interests;

(e) there is a need for continuity and economy; and

(f) there is a need for advice or proceedings involving members of the DoJ.

…

It is not a norm of the DoJ to brief out cases for legal advice.  Over the past three years, the Prosecutions Division of the DoJ provided an average of over 13 000 items of legal advice per year.  Save for those involving member(s) of the DoJ, the numbers of cases in respect of which outside legal advice had been obtained before making the prosecutorial decisions were 0, 1 and 0 respectively in 2018, 2017 and 2016.  It is evident that the DoJ has made prosecutorial decisions without seeking outside legal advice in a great majority of cases.”

(iv)    The Briefing Out Policy

16.  The Secretary for Justice’s policy for briefing out of cases to private practitioners (“the Briefing Out Policy”) is set out in paragraph 3 of a paper titled “Briefing Out Cases of the Department of Justice”, CB(4)619/17-18(03), prepared by the Department of Justice for discussion at a meeting of the Legislative Counsel Panel on Administration of Justice and Legal Services on 26 February 2018, as follows:

“The DoJ has been briefing out certain criminal and civil cases, according to fee schedules approved by the Finance Committee (‘standard briefing out’), or at negotiated fees in specified circumstances (‘non-standard briefing out’). Briefing out is mainly to meet operational needs. In general, the DoJ may resort to briefing out when –

(a) there is a need for expert assistance where the requisite skill is not available in the DoJ;

(b) there is no suitable in-house counsel to appear in court for the Hong Kong Special Administrative Region;

(c) the size, complexity, quantum and length of a case so dictate;

(d) it is deemed appropriate to obtain independent outside counsel’s advice or services so as to address possible perception of bias or issues of conflict of interests;

(e) there is a need for continuity and economy, e.g. where a former member of the DoJ who is uniquely familiar with the subject matter is in private practice at the time when legal services are required, or where it will be economical and in the interest of justice to engage the fiat trial counsel to conduct the relevant appeal; and

(f)     there is a need for advice or proceedings involving members of the DoJ.”

17.  It is clear that, in so far the sub-paragraph (d) above is concerned, the circumstances in which the Secretary for Justice would generally (albeit not mandatorily) engage outside, or independent, counsel for advices or services are not confined to those cases in which members of the Department of Justice are involved.  That situation is covered by sub-paragraph (f) above.  Under sub-paragraph (d), the relevant consideration is whether there is a possible perception of bias (in other words, apparent bias), or conflict of interest, such that outside counsel’s advice or services should be engaged.

(v)     The present applications for judicial review

18.  On 17 December 2018, Mr Kwok Cheuk Kin (“Mr Kwok”) applied for leave to apply for judicial review in HCAL 2882/2018, naming the Director of Public Prosecutions as the Putative Respondent and the Secretary for Justice as the Putative Interested Party.  In his original Form 86, Mr Kwok only complained about the decision not to prosecute Mr Leung in respect of his receipt of “50 million” dollars from UGL without declaring it to the Chief Justice of the Court of Final Appeal under Article 47 of the Basic Law (“BL 47”).

19.  On 12 March 2019, Mr Tsang Kin Shing (“Mr Tsang”) applied for leave to apply for judicial review in HCAL 687/2019, seeking to challenge, essentially, the Secretary for Justice’s decisions not to prosecute Mr Leung and Mr Chow.  In the Form 86, the Secretary for Justice is named as the Putative Respondent, and 4 grounds of judicial review are advanced:

(1)     The decisions not to prosecute Mr Leung and Mr Chow were illegal as the Department of Justice misinterpreted / misapplied the Briefly Out Policy by failing to seek legal advice from independent outside counsel prior to arriving at those decisions.

(2)     Alternatively, the decisions were illegal as the Department of Justice unlawfully fettered its discretion by concluding that independent outside counsel would not be engaged unless the case involves a member of the Department of Justice.

(3)     Further, the decisions were illegal as the Department of Justice erred in law by failing to appreciate or evaluate the relevant law and available facts, which demonstrated reasonable prospects of conviction of the MIPO Offence against both Mr Leung and Mr Chow, and the Section 9 Offence against Mr Leung.

(4)     The decisions were also procedurally unfair as there was apparent bias on the part of the Secretary for Justice, who had never declared her non-involvement in the investigation and/or the decisions.

20.  On 2 April 2019, Mr Kwok gave notice of his intention to amend the Form 86.  In his draft Amended Form 86, Mr Kwok seeks to substitute the Secretary for Justice for the Director of Public Prosecutions as the Putative Respondent, and challenge the Secretary for Justice’s decisions not to prosecute Mr Leung and Mr Chow.  Two principal grounds of judicial review are sought to be raised by Mr Kwok, namely[3]:

(1)     Misunderstanding or fettering of the Secretary for Justice’s discretion under the Briefing Out Policy, and/or departure from the established policy of seeking independent legal advice where serious criminal charges are considered against senior government officials without good reasons.

(2)     Error of law in relation to “conflict of interest” and “duty to disclose” for the purpose of the MIPO Offence.

21.  In passing, I note that in the draft Amended Form 86, Mr Kwok also asserts that the Secretary for Justice acted outside the constitutional limits imposed on her by BL 63 in her decisions not to prosecute Mr Leung and Mr Chow.  However, this point was neither developed in the draft Amended Form 86, nor in Mr Ng’s written or oral submissions for or at the hearing on 23 August 2019.

AMENABILITY OF SECRETARY FOR JUSTICE’S PROSECUTORIAL DECISIONS TO JUDICIAL REVIEW

22.  Prior to 1 July 1997, the law in Hong Kong on whether a decision of the Attorney General to prosecute a person suspected of having committed a criminal offence was amenable to judicial review was settled by the Court of Appeal’s judgment in Keung Siu Wah v A-G [1990] 2 HKLR 238.  In that case, a person against whom a criminal charge of conspiracy to defraud had been preferred by the Attorney General sought leave to apply for judicial review of the decision to prosecute.  Fuad VP (with whom Hunter JA and Penlington JA agreed) held that the Attorney General’s decision to prosecute could not be made the subject of judicial review.  At p 255, Fuad VP stated as follows:

“… it is a constitutional imperative that the Courts do not attempt to interfere with the Attorney General’s discretion to prosecute, but once the charge or indictment comes before a Court for hearing, it can consider whether the prosecution should be allowed to continue if grounds amounting to an abuse of process are raised.”

23.  After 1 July 1997, the law on the amenability of the Secretary for Justice’s prosecutorial decisions to judicial review has to take into account BL 63, which states as follows:

“The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.”

24.  On the face of this article, it vests in the Secretary for Justice (as the head of the Department of Justice) a very wide discretion to decide whether to prosecute any person, which discretion is to be exercised free from any interference.

25.  The post-1997 courts in Hong Kong had to grapple with the issue of whether the prosecutorial discretion of the Secretary for Justice under BL 63 could lawfully be subject to any supervision by the courts under the new constitutional order of the Basic Law.

26.  In Kwan Sun Chu Pearl v Department of Justice [2006] 3 HKC 207 (CA), the applicant applied for an order of mandamus to compel the Department of Justice to reverse its decision not to prosecute an alleged assailant for her assault.  Tang JA (as he then was), at [6], expressed the view that whether Keung Siu Wah precluded judicial review in relation to the decision of the Department of Justice not to prosecute whatever the circumstances was an open question so far as the Court of Final Appeal was concerned, and it “might be” that, despite Young v Bristol Aeroplane Co Ltd [1944] KB 718, the matter was open to review by the Court of Appeal.  However, it was not necessary for his Lordship to determine that question because, on the facts of that case, it was considered not to be one for leave to be granted.

27.  In Re C (A Bankrupt) [2006] 4 HKC 582, concerning applications by the Official Receiver seeking to prosecute two bankrupts for offences under the Bankruptcy Ordinance, Cap 6, Stock JA (as he then was) expressed the view that BL 63 was directed against interference, including judicial interference, with the Secretary for Justice’s prosecutorial independence subject only to issues of abuse of the court’s process and possible situations where decisions were taken in bad faith.  At [20] to [22] of his Lordship’s judgment, the following was stated:

“[20] I apprehend that it is to such interference, that is to say, interference of a political kind, to which article 63 is directed. But the rule that ensures the Secretary’s independence in his prosecutorial function necessarily extends to preclude judicial interference, subject only to issues of abuse of the court’s process and, possibly, judicial review of decisions taken in bad faith:

‘The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government. … It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. … This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. In R v Power [1994] 1 SCR 601, L’Heureux-Dubé J, said, at pp 621-23:

‘It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive….’’

Krieger v Law Society of Alberta [2002] 3 SCR 372, 387-388. (Emphasis added).

[21] The emphasis that I have added to those passages from Krieger is an emphasis designed to highlight the character of the prohibited judicial role with which we are concerned. We are concerned with judicial interference with a decision-making process. If that process has not yet commenced – and section 138 when invoked comes into play when no such process has been engaged – then it is difficult to see whence comes the interference, unless it be said that the initiation of prosecutions is exclusively the preserve of the Secretary, or that he is bound by the order. To these latter points, I will return. As for control, the judgment of the Supreme Court in Krieger goes on, at pages 387 – 388, to refer to the control of prosecutorial powers and it does so by reference to judicial review and abuse of process and by reference to ‘judicial deference to prosecutorial discretion’. It is there said that: ‘Subject to the abuse of process doctrine, supervising one litigant’s decision-making process – rather than the conduct of litigants before the court – is beyond the legitimate reach of the court.’ (Emphasis added). What article 63 does, apart from its prime purpose of prohibiting political interference is to reflect the boundary that protects the Secretary from judicial encroachment upon his right to decide whether to institute a prosecution, what charge to prefer, whether to take over a private prosecution, and whether to discontinue proceedings. Those are the prerogatives with which we are concerned:

‘The Attorney-General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the courts.’

per Viscount Dilhorne in Gouriet v Union of Post Office Workers [1978] AC 435, 487. See also Krieger, above, at p 394.

[22]     This is not to say that the Courts are powerless to prevent an abuse of their process, but the exercise of such a judicial power, even though it may have the effect of bringing proceedings to a halt, arises after the institution of proceedings and, as the phrase ‘abuse of process’ itself illustrates, is a power directed at the preservation of the integrity of the judicial process.  It is a necessary corollary to the exercise of judicial authority, itself preserved by the Basic Law.  There is also authority for the proposition that ‘dishonesty, bad faith or some other exceptional circumstances’ might found a basis for challenge in the courts of the exercise in a particular case of a prosecutorial prerogative: see R v Director of Public Prosecutions ex parte Kebilene [2000] 2 AC 326, 376; though in this regard see also Kwan Pearl Sun Chu v Department of Justice, Civil Appeal 314 of 2005, 30 May 2006, unreported.”

28.  Then came the decision of Hartmann J (as he then was) in RV v Director of Immigration [2008] 4 HKLRD 529, who considered in depth the question of the amenability of the Secretary for Justice’s prosecutorial decisions to judicial review.  That case concerned an application by a torture claimant, who had used a false passport to enter Hong Kong, to challenge his prosecution for the offences of using a false travel document and making false representations regarding that passport to an immigration officer on (inter alia) the ground that the decision to prosecute him was inconsistent with, and contradict, the Secretary for Justice’s prosecution policy that persons in the position of the applicant would not be prosecuted for the commission of immigration offences necessary to get them into Hong Kong pending determination of their torture claims.  Hartmann J first stated, at [2] of his judgment, that, prior to the Basic Law coming into force, the Court of First Instance was bound by the judgment of the Court of Appeal in Keung Siu Wah to the effect that a decision of the Secretary for Justice (then the Attorney General) whether or not to bring a criminal prosecution was not subject to judicial review.  The learned judge then noted that that legal position was not universally followed in other common law jurisdictions, including England and Wales (R v DPP, ex p Kebilene [2002] 2 AC 326, HL), Fiji (Matalulu v DPP [2003] 4 LRC 712, Supreme Court), Mauritius (Mohit v DPP of Mauritius [2006] 1 WLR 3343, PC); and Trinidad and Tobago (Sharma v Browne-Antoine [2007] 1 WLR 780, PC), although all those judgments emphasised that it would only be in highly exceptional or rare circumstances that the court could justifiably interfere with a prosecutorial decision.  At [55] of his judgment, Hartmann J said that whatever the developments in the law in other jurisdictions, he remained bound by the judgment of the Court of Appeal in Keung Siu Wah unless it could be shown that on a true construction, the Basic Law provided that the power of the Secretary for Justice to control criminal prosecutions was amenable to judicial review.  The learned Judge then considered the judgments of the Court of Appeal in Kwan Sun Chu Pearl and Re C (A Bankrupt), and came to the conclusion that the power of the Secretary for Justice to control criminal prosecutions was a constitutional power which must be exercised within constitutional limits, and accordingly subject to the court’s scrutiny as to whether the exercise of that power had exceeded the constitutional limits or remained with them.

29.  In the words of Hartmann J:

“[65] I am bound therefore by the judgment of the Court of Appeal in Re C (A Bankrupt) to recognise that art.63 of the Basic Law enshrines the independence of the Secretary for Justice to control criminal proceedings as he thinks best and that, in the exercise of that power, the Secretary is free of both political interference and ‘judicial encroachment’.

[66] But it seems to me that the judgment of the Court of Appeal recognises that today the power of the Secretary for Justice to control criminal prosecutions is a constitutional power. It is a power bestowed by the Basic Law and defined by that Law. As such, it must be exercised within constitutional limits. In that fundamental respect, the source and nature of the power must be different from the source and nature of the power as it was exercised when the Court of Appeal gave its judgment in Keung Siu Wah v. Attorney General.

[67] If the power must be exercised within constitutional limits, it seems to me that it must be for the courts, in any given case, to determine whether the exercise of that power has exceeded the constitutional limits or remained within them. Put another way, the limits of the constitutional power are defined by the constitution itself. Any definition of those limits must therefore require an interpretation of the Basic Law and that is a function of the courts…

[68]     In my judgment, it must therefore be the case that, since the Basic Law came into effect, this court has the power to determine whether the Secretary for Justice, in his control of criminal prosecutions, has, or has not, acted within the limits of his constitutional power.  The means for that determination is judicial review.  To come to this conclusion is not a defiance of binding precedent, it is recognition of a new constitutional order and the duties of our courts in respect of that new order.”

30.  As regards the constitutional limits themselves, the learned judge said this:

“[71] Clearly, the Secretary would act outside of his powers if it could be demonstrated that he has done so not on an independent assessment of the merits but in obedience to a political instruction. Art.63 specifically forbids such interference with the exercise of his powers.

[72] Equally plain, in my view, is the conclusion that the Secretary would act outside of his powers if he acted in bad faith, for example, if one of his offices instituted a prosecution in return for payment of a bribe.

[73] I am also of the view that a rigid fettering of his discretion would fall outside of the Secretary’s constitutional powers; for example, a refusal to prosecute a specific class of offences detailed in a statute lawfully brought into law. Such an action would undermine the constitutional functioning of other organs of state: the executive and the legislature.

[74] It is not possible, of course, to foresee and classify every circumstance in which this court can hold, without impermissable encroachment, that the Secretary has acted outside of his constitutional powers. There may be exceptional circumstances that arise. But this proviso is not to be read as somehow acting to reduce the role of the Secretary to that of an ordinary administrator. The prosecutorial independence of the Secretary is a linchpin of the rule of law. That is the way it has been prior to the Basic Law and the way it now remains. The exceptional circumstances of which I speak must be truly exceptional and must demonstrate that the Secretary has acted outside of his very broad powers, powers that, as Viscount Dilhorne said (see para.60 above), he exercises free of direction by his ministerial colleagues and free also of the control and supervision of the courts.

[75] In summary, I am satisfied that, under the Basic Law, the Secretary’s control of criminal prosecutions is amenable to judicial review but only to the very limited extent that I have described.”

31.  In summary, Hartmann J mentioned three particular types of cases where the Secretary for Justice would be regarded as having acted outside the constitutional limits when making a prosecutorial decision, namely, (i) acting in obedience to political instruction, (ii) bad faith, and (iii) rigid fettering of prosecutorial discretion, while making it clear that the above are not exhaustive of the circumstances in which judicial interference would be justified.  It is also clear from the judgment of Hartmann J that the prosecutorial independence of Secretary for Justice should not be put on the same footing as an ordinary exercise of discretion by an administrator, and thus her decision to prosecute (or not to prosecute) could not reviewed by the court based on ordinary judicial review grounds.

32.  After RV, the case of Ma Pui Tung v Department of Justice, CACV 64/2008 (unreported, 28 September 2008) came before the Court of Appeal.  It concerned a challenge against a decision not to prosecute a person whom the applicant believed had given false evidence against him in proceedings before the Solicitors Disciplinary Tribunal, as well as a decision to prosecute the applicant for a bankruptcy offence.  Rogers VP (with whom Le Pichon JA agreed) stated in a succinct judgment as follows:

“[10] It is, no doubt, in extremely rare cases and only where the evidence points unquestionably to the desirability of there being a prosecution that a court should interfere with a decision of the prosecuting authority not to prosecute. There are instances where an application for judicial review in respect of a refusal to prosecute has been allowed. I would draw attention for example to R v Director of Public Prosecutions, ex parte C. [1995] 1 Cr.App.R. 136 and the note contained at pages 858-861 of the Criminal Law Review 2000 in respect of the case of R v Director of Public Prosecutions, ex parte Jones. It must be emphasised, however, that those were cases where the facts spoke for themselves. It is, perhaps, all the more important that a court should exercise extreme caution if consideration is given to questioning a decision not to prosecute because Article 63 of the Basic Law provides:

‘The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.’

[12]     Although the availability of alternative remedies is no longer considered an absolute bar to the grant of judicial review, where an alternative remedy exists the court should be slow and circumspect in permitting an application for judicial review to proceed.  It would appear that the theoretical possibility of a private prosecution may exist, although it has to be said that in the present case it is most unlikely that any private prosecution for perjury would be allowed to proceed.”

33.  It is not clear from the judgment of the Court of Appeal in Ma Pui Tung whether the judgment of Hartmann J in RV was brought to its attention.  Nevertheless, Rogers VP made it clear that it was only in extremely rare cases that the court would interfere with a decision of the prosecuting authority not to prosecute, and pointed to the need for extreme caution before doing so in view of BL 63.

34.  In none of the Hong Kong cases mentioned above did the court actually took the exceptional step of interfering with the prosecutorial decision of the Secretary for Justice.  The only Hong Kong case to which my attention has been drawn where a proposed challenge against a decision not to prosecute received a positive response from the court was the decision of Zervos J (as he then was) in D v DPP [2015] 4 HKLRD 62.  In that case, the applicant, who was a foreign domestic helper, sought leave to apply for judicial review of the decision of the DPP not to prosecute her former male employer for committing acts of indecent assault against her. Zervos J considered that it was reasonably arguable that the DPP had erred in his understanding and application of the relevant law, and granted the applicant leave to apply for judicial review.  The reasoning of the learned judge appeared at [24] to [27] of his decision, as follows:

“[24] From the above, it would appear that the principle as stated in Keung Siu-wah has been qualified and reviewed in a new constitutional and modern context. It is noteworthy that there had been comments by the Court of Appeal questioning the limitation to the circumstances to challenge a decision not to prosecute by judicial review. See Kwan Sun Chu Pearl v Department of Justice [2006] 3 HKC 207 at paragraphs 5-7, per Tang JA (as he then was) and Ma Pui Tung v Department of Justice, CACV 64/2008, 23 September 2008, unreported, at paragraph 10, per Rogers VP.

[25] Mr McCoy in his submissions relied on a line of recent authority that has held that the decision not to prosecute is amendable to judicial review but that the power to do so is one to be sparingly exercised. He relied on the Privy Council decision of Mohit v Director of Public Prosecutions of Mauritius [2006] 1 WLR 3343 which he argued disapproved Keung Siu Wah. See also Matalulu v Director of Public Prosecutions [2003] 4 LRC 712; [2003] 2 HKC 457. Mr Duncan on the other hand made references to passages in the authorities that he submitted limited the circumstances in which a review of a decision not to prosecute could take place.

[26] Without wanting to descend to detailed analysis of the legal arguments submitted by the parties on this issue, it would appear to me that the question of amenability to judicially review a decision of the Director not to prosecute is reasonably arguable both as a matter of principle and in the circumstances of this case. It is reasonable arguable at least whether the decision not to prosecute in this case comes within the exceptional circumstances as stated by Stock JA in Re C (A Bankrupt) or has exceeded the constitutional limits as stated by Hartmann J in RV.

[27] In light of the foregoing, I am satisfied that the grounds of review are reasonably arguable and that leave should be granted.”

35.  As pointed out by the Court of Appeal in its recent judgment in Re Leung Lai Fun [2018] 1 HKLRD 523 (23 January 2017), the decision of Zervos J in D v DPP did not raise any legal concept inconsistent with the principles established in RV.  The Court of Appeal said that “the Judge took into account the particular circumstances of the case and took the view that the applicant’s case was reasonably arguable”, which was “the Judge’s preliminary view and there was no further development of the case” (see [11]).

36.  Significantly, the Court of Appeal also endorsed the analysis of Hartmann J in RV, and stated as follows in [10]:

“Article 63 of the Basic Law provides that ‘The Department of Justice shall control criminal prosecutions, free from any interference’. As Hartmann J had pointed out in RV v The Director of Immigration (2008) 4 HKLRD 529, this provision includes the protection of the independence of the Department of Justice’s control of criminal prosecutions from judicial encroachment. It is only if the case belongs to those extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned. Otherwise the Court should not encroach on the right of the Department of Justice to control prosecutions. This is the major premise which is founded on principle.”

37.  In the event, the Court of Appeal rejected the applicant’s intended challenge against the DPP’s decision not to prosecute two persons for the offences of “making a false instrument” and “using a false instrument” in relation to a cremation permit for the applicant’s deceased mother.

38.  Mr Tam and Mr Ng have referred me to various overseas authorities to show that:

(1)     the court has power to review a prosecutorial decision of the prosecuting authority on orthodox or conventional judicial review grounds such as adoption of unlawful policy, failure to act in accordance with settled policy, irrationality, error of law, taking into account irrelevant matters, etc (see R(Chaudhary) v DPP [1995] 1 Cr App R 136 at 139G-141G; R(Jones) v DPP [2000] IRLR 373 at [26]; R(Manning) v DPP [2001] QB 330 at [23]; R(Peter Dennis) v DPP [2006] EWHC 3211 (Admin) at [23] – [30]; R(F) v DPP [2014] 1 QB 581 at [6]; R(SY) v DPP [2018] 2 Cr App R 15 at [13] – [15]; Osborne v Worksafe of New Zealand [2017] 2 NZLR 513 at [39] – [40] and [46] – [49]); and

(2)     a lower threshold should be adopted with respect to a decision not to prosecute as opposed to a decision to prosecute (see Marshall v DPP of Jamaica [2007] 4 LRC 557 at [18]; Osborne v Worksafe of New Zealand [2017] 2 NZLR 513 at [36] – [37]; Sharma v Brown-Antonie [2007] 1 WLR 780 at [14(5)]; R(F) v DPP [2014] 1 QB 581 at [3]).

Also, as pointed out by Mr Ng, in Jamaica, there is a provision in its Constitution, namely, Section 94(6) thereof[4], which is similar to our BL 63, but it did not prevent the Privy Council from coming to the conclusion that judicial review of the DPP’s prosecutorial decisions was available in principle, although it was a “highly exceptional remedy”.

39.  It is not with disrespect that I do not propose to analyse these overseas authorities in detail in this decision.  As mentioned by Tang JA in Kwan Sun Chu Pearl, it is open to the Court of Final Appeal, and possibly the Court of Appeal as well, to develop the law in this jurisdiction along the lines of the abovementioned overseas authorities which would enable the court to exercise a greater control over prosecutorial decisions made by the Secretary for Justice.  However, I do not consider that such development of the law can be undertaken by a judge at first instance.  Re Leung Lai Fun represents, I believe, the latest judicial guidance from the Court of Appeal on the issue of the amenability of the Secretary for Justice’s prosecutorial decisions to judicial review.  This issue has not, so far as I am aware, been considered by the Court of Final Appeal.  I consider that it is my duty to follow the Court of Appeal’s judgment in Re Leung Lai Fun to hold that it is only where a prosecutorial decision of the Secretary for Justice can properly be said to be “unconstitutional” that the court may interfere with the decision.  To reach the high threshold of unconstitutionality, it is not sufficient to establish mere orthodox or conventional grounds of judicial review.

40.  Returning to the present case, the intended grounds of judicial review raised by Mr Kwok and Mr Tsang are (i) misinterpretation or misapplication of the Briefing Out Policy, (ii) fettering of discretion as to the circumstances in which independent outside counsel’s advice or service would be sought or engaged, (iii) error of law in relation to the MIPO Offence and Section 9 Offence, and (iv) procedural unfairness and apparent bias.  These are ordinary judicial review grounds which, even if established, are not sufficient to show that the decisions not to prosecute Mr Leung and Mr Chow are beyond the constitutional limits of the Secretary for Justice’s power to control criminal prosecutions under BL 63.

41.  Having reached this conclusion, it would not be necessary for me to deal with other arguments raised by the parties at the hearing, including arguments on standing, delay/extension of time, and existence of an alternative remedy (namely, private prosecution).  It would be particularly inappropriate for me to consider the ground of “error of law” in this decision, because that would inevitably require an examination of whether there is sufficient evidence for the prosecution of Mr Leung and Mr Chow for the MIPO Offence and/or Section 9 Offence.  Under our criminal justice system, whether a person is a guilty of having committed a criminal offence should only be determined by a judge, or a jury in the Court of First Instance, in a trial after having considered all admissible evidence.  It would not be fair to either Mr Leung and Mr Chow for this court to express any view on the sufficiency of the evidence to prosecute Mr Leung and Mr Chow for the MIPO Offence and/or Section 9 Offence.

42.  Overall, I consider that the two applications for judicial review are not reasonably arguable, and have no realistic prospect of success.

DISPOSITION

43.  The two applications for leave to apply for judicial review, as well as Mr Kwok’s application to amend the Form 86 in HCAL 2882/2018, are dismissed.

44.  There are no special or unusual circumstances in the present case to depart from the general rule that an unsuccessful applicant in an application for leave to apply for judicial review will not be ordered to pay the costs of a putative respondent or putative interested party (see Leung Kwok Hung v President of the Legislative Council of the Hong Kong Special Administrative Region (2014) 17 HKCFAR 841, at paragraph 17(2)).  Accordingly, I make no order as to costs in these two applications.