LUI CHI HANG HENDRICK v. INDEPENDENT POLICE COMPLAINTS COUNCIL

HCAL 2924/2019

[2019] HKCFI 3120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2924 OF 2019

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D E C I S I O N

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1.  Having heard parties, I have decided to grant the Applicant leave to apply for judicial review on one of the grounds set out in the Form 86 he has filed. Because of that, and for fear of prejudicing the substantive hearing, I will only give succinct reasons for my decision (as set out below).

The Application for leave

2.  The Applicant’s Form 86 is dated 4 October 2019.  It is signed by counsel.  The proposed respondent is the Independent Police Complaints Counsel (“IPCC”).  The decisions which the applicant seeks to challenge (the “Decisions Under Challenge”) are stated in the Form 86 as follows:

“ A decision by IPCC contained in a press release dated 5 July 2019 to proactively conduct a fact-finding study of the public order events in between 9 June to 2 July 2019 (‘the Study’) and a decision by IPCC contained in a press release dated 16 August 2019 to extend the scope of the Study to cover the public order events after 2 July 2019 and publish findings in phases (‘the Decisions’).”

3.  On 11 October 2019, I gave directions on service and filing of documents.  I directed that the application for leave (not the substantive application, hence not a rolled‑up hearing) be heard on 20 November 2019.  I also allowed IPCC liberty to attend that hearing.

4.  The Applicant applied for Legal Aid on 30 October 2019.  The statutory stay of 42 days was thereby triggered [1]. I did not see any reason to make any order otherwise. I therefore on 4 November 2019 directed that the hearing of 20 November 2019 be adjourned to 20 December 2019.  I again granted IPCC liberty to attend the adjourned hearing.

5.  Pursuant to my directions, Mr Johnny Ma, counsel for IPCC, filed his submissions on 13 December 2019.  He opposes the application.

6.  On 18 December 2019, the Applicant filed a summons seeking leave to file his 2^nd affidavit to put in evidence certain incidents that took place after his 1^st affidavit. I grant him leave to do so.

7.  Also on 18 December 2019, Mr Jeffrey Tam, who together with Mr Albert Wan appear for the Applicant, filed his submissions in response to those of Mr Ma. 

The factual backdrop, and the Decisions Under Challenge

8.  On 2 July 2019, IPCC issued a press release.  What it said there provides the factual backdrop for the Decisions Under Challenge it subsequently made.  The relevant terms of the 2 July 2019 press release are as follows:

“ In the course of the last few weeks (between 9 June to 1 July 2019), there had been several large‑scale Public Order Events (POEs), nearly all of which had been peaceful. The exceptions were the events of the early morning of 10 June and the afternoon of 12 June when there were violent clashes with the Police and yesterday going on to the early hours of this morning, when the Legislative Council Complex was violently broken into and subsequently damaged by protesters … The IPCC therefore proposes to take further steps to strengthen arrangements already in place to deal with the complaints so far received.

First of all, after consultation with the IPCC, the Commissioner of Police (‘the Commissioner’) has informed the IPCC that he has decided that the special team in CAPO dealing with the Reportable Complaints arising from the POEs will now directly report to an Assistant Commissioner, to ensure that these complaints are dealt with effectively and efficiently.

Second, in light of the widespread public concerns the IPCC will proactively make a detailed study of the POEs (‘The Study’). The Study will cover all relevant facts relating to the POEs from 9 June to 2 July 2019, although a special focus of the Study will be the events of 10 June and 12 June when violent clashes occurred, and the event of 1 July when the Legislative Council Complex was broken into, leading the Police actions after midnight.

The reason for the Study is that the IPCC is unlikely to be able to effectively discharge its statutory functions without a complete picture of the POEs, where all stakeholders, the public and the Police, have had the opportunity to tell their side of the story. The power of the IPCC to undertake this proactive Study is derived from S.8(2) of the IPCC Ordinance…

The initial fact‑find work of the Study will be undertaken by a Special Task Force within the Secretariat of the IPCC, led by the Deputy Secretary‑General (Operations).  It is expected that Members of the Council will as needed take part in interviews of all stakeholder for the purpose of the Study.”

9.  The Decisions Under Challenge which the IPCC subsequently made involve two related decisions (which I will call the “1^st Decision” and the “2^nd Decision”):

a. the 1^st Decision was stated in the press release of IPCC of 5 July 2019.  Its relevant terms are:

“ …the [IPCC] today held a Special In-house Meeting, during which all attending Members unanimously passed the motion to proactively conduct a fact-finding study of the POEs (the ‘Study’) and to submit the report of the Study (the ‘Report’) to the Chief Executive. To perform the Counsel’s statutory functions, this Report will also be made public.”

b. The 2^nd Decision was stated in the press release of IPCC of 16 August 2019.  Its relevant terms are:

“ The [IPCC] decided earlier (5 July) to take the initiative to conduct a fact-finding study (the ‘Study’) of the large‑scale Public Order Events (POEs) that took place between 9 June and 2 July 2019. The Council held a special in‑house meeting again today at which all attending Members unanimously passed the motion to extend the scope of the Study with a view to clarifying all relevant facts thus facilitating performance of its statutory function.

   … As the situation is still evolving, the Council unanimously agreed at its meeting today to extend the scope of the fact‑finding Study to cover POEs after 2 July and publish findings in phases.  The Council will continue to aim for publication of the first phase report, covering the period from 9 June to 2 July, within six months, insofar as it is practicable to do so.”

The Proposed grounds of review

10.  The proposed grounds of review are stated in the Form 86.  They may be categorized and summarized into 3:

a. The “Ultra Vires ground”, that:

“ The Decisions [Under Challenge] are illegal in that it is ultra vires for IPCC to proactively conduct a fact‑finding study (i.e. the Study) and to look at the causes of the incident in public order events and provide recommendations on way forward to avoid recurrence of similar incidents.” [2]

b. The “Error of law ground”, that:

“ In purporting to rely on sections 8(1)(c) and 8(2) [of Independent Police Complaints Council Ordinance [IPCCO]] to justify the Decisions [Under Challenge] to conduct the Study, the IPCC erred in law in interpreting the two sections.” ^[3]

and

c. The “Improper Purpose ground”, that:

“ Further or alternatively, even if IPCC has the power to conduct the Study, IPCC is conducting the Study for an improper purpose. [4]

According to the Chief Executive Mrs Carrie Lam, in conducting the Study, IPCC will look at the causes and facts of the incidents in the public order events and provide the government with recommendations on the way forward to avoid recurrence of similar incidents.

In other words, the purposes of conducting the Study is to identify the causes and facts of the incidents in the public order events, to provide recommendations to the government on the way forward to avoid recurrence of similar incidents. This purpose is not within the purposes contemplated under IPCCO.” [5]

11.  At §12 of his written submissions, Mr Tam states that the Ultra Vires ground is the principal ground.  The other two grounds are alternatives.

12.  During the oral hearing, Mr Tam states that the Ultra Vires ground and the 2 alternative grounds will stand or fall together.  He confirms that should leave be granted on the Ultra Vires ground, he will not pursue the other 2 alternative grounds (save any points which may be relevant to the consideration of the Ultra Vires ground).

IPCC’s grounds in opposition

13.  Mr Ma submits that leave should be refused on the following grounds [6]:

“ a. No Merits — the Applicant’s case is not reasonable arguable;

b. Non-reviewability / Prematurity — the Decisions are intermediary / preparatory and thus not reviewable, and/or the application is premature;

c. Delay — the Applicant fails to make this application promptly; and

d. No Standing — the Applicant does not have sufficient interest in the matter.”

Threshold for leave

14.  The test for granting leave is reasonable arguability — Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, at §§14-17.  The burden to establish the same is on the applicant.

Whether IPCC amenable to judicial review

15.  There is no direct authority in Hong Kong as to whether IPCC is amenable to judicial review.

16.  The establishment, functions, duties and powers of IPCC are all statutory in origin — see the Independent Police Complaints Council Ordinance, Cap 604 (“IPCCO”).

17.  I note the nature of the Decisions Under Challenge.  In my view, it is reasonably arguable that they are public in nature.

18.  I note that Mr Ma does not seek to argue that IPCC is not amenable to judicial review.

19.  On the basis of the materials before me, and given what I have stated in §§16 and 17 above, I am of the view that it is reasonably arguable that IPCC is amenable to judicial review.

The principal proposed ground — whether ultra vires

20.  At §13 of his submissions, Mr Tam submits that:

“ The Decisions are illegal in that it is ultra vires for IPCC to proactively conduct a fact‑finding study (ie the Study) and to look at the causes of the incidents in public order events and provide recommendations on way forward to avoid recurrence of similar incidents.”

21.  On the face of that paragraph, the Decisions Under Challenge are said to have a number of facets, which include at least:

a. to conduct “proactively … a fact-finding study”;

b. “to…look at the causes of the incidents” and

c. “to provide recommendations on way forward to avoid recurrence”.

(I will for ease of reference call them “Facets (a), (b) and (c)”.)

22.  In the course of the oral hearing, and upon my invitation, Mr Tam clarifies that Facet (a) is in his submissions sufficient by itself to render the Decisions Under Challenge ultra vires because IPCC lacks the requisite powers to conduct the Study.  Facets (b) and (c) relate more to the purposes of the Study.

23.  Facet (a) brings to focus whether IPCC has the powers to proactively conduct a fact‑finding study. 

24.  On the face of IPCCO, IPCC has no express proactive power to find facts.

25.  The Appellant has placed before me some documents on the legislative history of the IPCCO.  One of them is the Report on the Bills Committee on the Independent Police Complaints Council Bill (LC Paper No. CB(2)2499/07-8) (the “Bill Committee Report”).  §§71 to 73 of that Report are relevant:

“ Investigative power

71. Some members and some deputations are of the view that IPCC should be empowered to conduct independent investigations if it is not satisfied with CAPO’s investigation findings, and to determine the acceptability of the findings and results of the investigation of all complaints…

72. The Administration has responded that the main functions of IPCC are to monitor and review the handling and investigation of complaints against the Police conducted by CAPO … The Administration considers it inappropriate to confer IPCC with investigative power on the grounds that:

(a) IPCC does not have powers similar to those available to the Police…

(b) IPCC would need to have its own investigation team…

(c) empowering IPCC to investigate complaints lodged with CAPO would confuse the IPCC’s role as an oversight body.  The arrangement might create two different sets of findings and results in respect of a complaint, and hence cause confusion…”

(Emphasis added)

26.  By his 2^nd affidavit, the Applicant has brought to my attention the reported views of the Independent Expert Panel leading to the Panel’s decision to “stand aside from its role”.  The experts were reported to have said that “We ultimately concluded that a crucial shortfall was evident in the powers, capacity and independent investigative capability of IPCC” [7].

27.  In his written submissions on behalf of IPCC, Mr Ma has been focusing upon the purposes of the Study.  He submits[8] that those purposes are:

a. to get a complete / overall / full picture of the public order events, so as to assist and facilitate IPCC in the performance of its statutory functions; and

b. to provide the factual background against which the practices and procedures adopted by the police in the public order events will be considered, so as to assist and facilitate IPCC in the performance of its statutory functions.

28.  But whatever the purposes, the issue remains whether IPCC has the proactive fact‑finding powers to conduct the Study.

29.  During the oral hearing, Mr Ma raises two main points in respect of the that issue:

a. the discussions in the Bill Committee Report relates to the question as to whether IPCC should be given the power to investigate specific complaints that have been lodged with the CAPO;

b. the Study was conducted not for any specific complaint, but for the purposes stated in his written submissions, and for that, IPCC has incidental fact-finding powers under s 8(2) of the IPCCO [9].    

30.  This distinction Mr Ma draws between fact‑finding powers in respect of specific complaints on the one hand, and general incidental fact‑finding powers under s 8(2) on the other hand does not sit entirely well with the structure of IPCC which apparently does not include any investigation team (see §72(b) of the Bill Committee Report).  The existence of incidental fact‑finding powers which Mr Ma is submitting may also lead the sort of confusion referred to in §72 (c) of the Bill Committee Report.  This submission of Mr Ma may need to be examined in further details in deal course.

31.  Given the absence of any express statutory investigative or proactively fact‑finding powers, and given the legislative history of the IPCCO, and despite Mr Ma’s oral submissions, I form the view that it is reasonably arguable that IPCC does not have such powers. This impacts on the issue as to whether the Decisions Under Challenge are ultra vires — and in particular Facet (a) set out above.

The alternative grounds

32.  Mr Tam confirms that should I grant leave on the Ultra Vires ground, which I will, he will not pursue the other grounds.  I therefore do not consider them separately.  

Delay?

33.  Unless extension has been granted by the Court for good reason, application for leave to apply for judicial review “shall be made promptly and in any event within three months from the date when the grounds for the application first arose” — Order 53, rule 4(1) of the Rules of the High Court.

34.  The period of 3 months represents the maximum time allowed for the making of an application for leave.  That an application has been made within 3 months does not necessarily mean that it has been made “promptly” — see §9 of Practice Direction SL3.

35.  The Applicant filed his Form 86 within 3 months of the press release of IPCC of 5 July 2019 (albeit by only 1 day).

36.  The question remains whether he did so promptly.

37.  As I have explained above, the Decisions Under Challenge in fact involve two decisions.  The 2^nd Decision first arose only on 16 August 2019.

38.  I take into account the fact that the situation which Hong Kong faced over the last several 6 months had been fluid and evolving.  Even the Decisions Under Challenge came in stages.  It is not a case which the Applicant had sat on a set of static circumstances that had crystalized by the time of the 1^st Decision.

39.  In my view, and on the facts of this case, I am not satisfied that the Applicant is guilty of any delay to such an extent that leave should be refused.

40.  To state the obvious, my ruling in this regard will not affect IPCC’s entitlement on the substantial hearing to rely on any time lapse since the 1^st Decision as a ground for opposing the grant of any relief (should it need to be raised, and should IPCC decide to raise it) — see §9 of Practice Direction SL3.

Whether non-reviewable decisions / Prematurity

41.  An essential quality of a reviewable decision is that it is a substantive determination.  The emphasis is on the decisive nature of the exercise of power.  The extremely important judicial review jurisdiction of the Courts is not meant for the purpose of micro‑managing the activities of subordinate tribunals or administrative decision makers — Financial Secretary v Wong (2003) 6 HKCFAR 476 (per Litton NPJ at §§94-95, and Bohkary PJ at §14).

42.  Mr Ma submits[10] that:

“ …the Study is indisputably an intermediary (or even only preliminary) or preparatory step which is intended to aid or assist the Council in the performance of its various functions under the [IPCCO] in due course.”

43.  The reasonable arguability test equally applies to the issue of prematurity — see Kwok Cheuk Kin v Chief Executive of the HKSAR & Ors [2017] 5 HKC 579, per A Chow J at §36.

44.  The question at hand is whether IPCC has the requisite proactive fact‑finding powers to conduct the Study.  It has apparently concluded that it does.  It is going to utilize, and indeed has apparently been utilizing, such powers to carry out the Study so as to put together a report.  The report is intended to be submit to the Chief Executive.  If it turns out that IPCC in fact does not have those requisite powers, the contents of the report may be tainted by materials obtained through processes which are outwith its powers. 

45.  In R (Associated Newspapers Ltd) v Lord Justice Leveson [2012] EWHC 57 (Admin), the English Court of Appeal was concerned with the reviewability of a decision in principle made by the Chairman of the Leveson Inquiry[11] that he would admit evidence, subject to certain conditions, from journalists who wish to remain anonymous on the ground that they fear career blight if they identify themselves.  At §39 of the judgment, Lord Justice Toulson observed that:

“ … I am not persuaded that [the] application for judicial review is premature. Whether an application is premature depends on the subject matter and the nature of the challenge. The claimant’s challenge goes to the root of the ruling and now is the right time to address it.”

The situation we have here is not dissimilar to the one in Associated Newspaper.

46.  I am therefore of the view that it is reasonably arguable that the Decisions Under Challenge are reviewable and that the present application for leave is not pre‑mature.  Indeed, Mr Ma in the course of the oral hearing has fairly accepted that as the Applicant is now confining his application to the Ultra Vires ground, the Respondent’s objection on the prematurity basis has become much less potent.

The Applicant’s interest and standing

47.  There is no one single test for deciding whether an applicant has sufficient interest and standing to apply.  When an applicant is bringing an application as a representative of the public interest, and Mr Tam is saying that the Applicant is[12], the Court adopts a holistic approach.  As explained by A Chow J in Kwok Cheuk Kin v Commissioner of Police and Another [2017] 6 HKC 93, at §34, that approach involves the Court:

“ …taking into account a host of relevant considerations including the merits of the application, the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, and the nature of the breach of duty against which relief is sought.”

48.  I adopt this holistic approach (and this is the reason why I leave this aspect of the application to be considered last, and after I have considered the merits of the application). I have expressed the view that the proposed grounds of challenge are reasonably arguable.  The issues raised are important.  The rule of law is engaged.  There is nothing which suggests that the Applicant brings this application out of ill motive or improper purpose.  He says he has participated in some of the peaceful public order events.  On the facts of the case, I am of the view that the Applicant is not a mere busybody.  I am of the view that he has sufficient standing to bring the application.

Disposition

49.  As I have said in §1 above, I grant the Applicant leave to apply for judicial review on Facet (a) of the Ultra Vires ground (see §§20 and 21 above).    

50.  Subject to any directions which parties may seek and which this Court may grant, the procedure and time‑table as set out in the Rules of the High Court will apply to the conduct of the substantive hearing. Priority will be given.

51.  I make a costs order nisi that the costs of the application for leave (including the oral hearing on 20 December 2019) be reserved.