HCAL 56/2005





NO. 56 OF 2005





Before : Hon Hartmann J in Court

Date of Hearing : 21 September 2005

Date of Ruling : 21 September 2005




1. I have before me an application for leave to apply for judicial review. The applicant appears in person although she has been assistedby a colleague, Mr Raymond Man. The applicant complains that she has been the victim of an assault. She says that this assaulttook place on the evening of 22 June 2004 in a village called Hung Leng Village in the New Territories. On that occasion she receiveda minor injury to her ankle. She complains that, although the police investigated the matter and their findings were referred tothe Department of Justice, the Department declined to institute criminal proceedings against the person who the applicant assertsassaulted her, that person being Mr Wong Kun-wai. She seeks a judicial review of that decision; an order, that is, to quash thatdecision.

2. I declined to grant leave on the papers. I wished to know more about the factual background to the complaint and, more importantly,was concerned that this court had no jurisdiction to judicially review the exercise of discretion of the Director of Public Prosecutionsin respect of instituting prosecutions. I therefore directed that there be an oral hearing. That hearing took place on 8 July 2005.

3. I think it is fair to say that impassioned representations were made to me by the applicant and Mr Man, the unspoken thrust of thoserepresentations being to the effect that the police and/or members of the Department of Justice had not only been guilty of negligencebut perhaps of bad faith too.

4. In the circumstances, I felt that I could not simply dismiss the application for leave and that the matter should be adjourned sothat assistance could be obtained from the Department of Justice. The matter was therefore adjourned to Friday, 22 July 2005.

5. It appears that both the applicant and Mr Man were assaulted on an occasion after 22 June 2004, on this occasion suffering fairlybad injuries. One of the reasons why I adjourned the matter was because it was asserted by the applicant that the second assault– although I was a little confused as to the sequence at the time – was brought about by either Mr Wong again or at Mr Wong’sinstigation. Unfortunately, in respect of this second assault, if I understand it correctly, none of the assailants could be identified.

6. My clerk wrote to the Department of Justice, recording my observations. It is necessary, I think, if only to explain the full background,that my observations be repeated in this ruling :

(i) This application concerns what, on its face, appears to be a violent dispute in a village in the New Territories, the dispute focusingon development rights. It appears that the applicant and an associate have both received physical injury as a result of the dispute,both the applicant and the associate, Mr Man Sek-ong, being so badly injured that they required hospitialisation.
(ii) The matter has been referred to the Department of Justice by the police in respect of possible prosecution.
(iii) On the material before me, it appears that the applicant and Mr Man Sek-ong have made extensive representations to the Departmentof Justice to the effect that a certain person (or certain persons) should be prosecuted. These representations have been accompaniedby evidential material. Several letters have been addressed to the applicant and Mr Man by Mr Thomas Law, SADPP, the last letter,dated 12 March 2005, stating that, despite the representations, no prosecution would take place as there was no reasonable prospectof securing a conviction. The applicant herself however appears to have been the subject of the prosecution.
(iv) The applicant has asserted not simply that Mr Thomas Law (and those who assist him) has exercised his discretion wrongly but appearsto have suggested that there has been a failure utterly to consider the material placed before him or to consider it in a way whichfalls within the parameters of his discretion, this failure amounting in essence to a dereliction of duty.
(v) I am in no position to comment on these serious allegations and my observations are not to be taken to mean that I necessarily givethem credence. However, having regard to all the material placed before me and the representations so strongly made, I believe itis best that this application for leave should be adjourned so that, if the Director of Public Prosecutions deems it necessary, Imay receive some assistance at the adjourned hearing.
(vi) It is my understanding that the Director of Public Prosecutions occupies a unique constitutional position and that, in the exerciseof his powers, he is not, in broad principal, subject to the control and supervision of the courts. I have made this clear to theapplicant. She is aware that she faces a most difficult task. However, recent authorities suggest that there may be occasions whenthe courts will take the unusual step of assuming supervisory jurisdiction. In this regard, for example, see R. v. Attorney –General, ex p Rockhall [2000] 1 WLR 882 and also in Re Jordan [2003] NIQB 1 (6 January 2003), the letter being a decision of the Northern Ireland Queen’s Bench Division.
(vii) In all the circumstances, I do not, in conscience, feel that I can simply dismiss the application for leave at this stage. That iswhy I have decided to adjourn the matter. I am told by the applicant that a DVD exists which is of essential relevance. I haveasked that a copy of the DVD be supplied, this being part of the material supporting the application.”

7. On 19 July 2005, Ms Priscillia Lam Tsz-ying, the government counsel who advised on the applicant’s file filed an affirmation inwhich she set out her involvement in the matter. She concluded by saying the following :

“It suffices to say that there was no clear and unambiguous picture of the events of that evening. I was not satisfied upon myevaluation of the available evidence that there was sufficient likelihood of a conviction for any offence against any of the personsarrested (which included this Applicant) and applying the appropriate prosecution guidelines that there was no reasonable prospectof a successful prosecution and I was so advised. Mr Thomas Law, SADPP, concurred and the police were advised in terms.

In coming to this conclusion, I took into account all of the then available evidence which included the medical reports of the Applicantand Mr Wong.”

8. Before the hearing on 22 July 2005 I viewed a DVD which was part of the applicant’s case and was meant to show what happened onthe evening of 22 June 2004 when the applicant was assaulted. While I watched the DVD, my clerk did his best to assist me by translatingwhat was said. In my view, the DVD does not show clearly – or at all in any direct way – who assaulted who that evening. Itshows a highly emotional confrontation and records various allegations and counter allegations being made. But it does not showany assault.

9. In addition to the affirmation of Ms Lam, I was assisted by the Department of Justice by the appearance of Mr Darryl Saw, SC. MrSaw placed a detail skeleton argument before me. The applicant and Mr Man, however, complained that they had only received the skeletonargument either the day before or that very morning. They said that they required time to take legal advice themselves as they believedthat they could persuade me, if given time, to grant leave. In the circumstances, the matter was adjourned to today, 21 September2005.

10. The applicant, clearly, feels very strongly about what she insists was an assault upon her, an assault aggravated by a later premeditatedassault upon her and Mr Man. I am aware that village confrontations of this kind can result in long term bitterness and enmity. However, the fact is that, having done my best to get an overall picture, I cannot find any grounds for suggesting that the Departmentof Justice came to a plainly wrong decision not to prosecute; that is, a decision which is unreasonable in law.

11. Mr Man has today, in very emotive terms, attempted to show that there has been some sort of collusion between the police and theDepartment of Justice, indeed that counsel in the Department of Justice have not been honest in saying that they had available tothem all the evidence in coming to their decision. Mr Man has said that when the police file was considered by the Department ofJustice, counsel would not have had the medical documents before them even though they have insisted that such documents were inthe file. Mr Man has a formal typed report which bears a date after the decision of the Department of Justice not to prosecute. There appears to be a misunderstanding. Mr Saw has shown me a medical examination form typical of the type that are sent to theDepartment of Justice by the police when advice is sought. That form, he has said, was sent with the original police file. Theform is handwritten, clearly a copy of the original form made out by the doctor at the hospital at or about the time the applicantwas treated. It speaks for itself, making it clear that, on original examination at the Accident & Emergency Department, therewere injuries to the right ankle showing tenderness, swelling and possible haematoma; that they were fresh, and that the allegationmade by the applicant was that the injuries resulted from an assault. That handwritten form is no different from Mr Man’s latertyped letter.

12. Suffice to say that I am satisfied there is nothing in the allegation made that counsel have lied in respect of medical evidence. It seems to me that the applicant and Mr Man have made their allegations out of desperation. While I appreciate their deep feelings,it seems to me that they have lost all objectivity.

13. In any event, it seems to me that the law, as it presently stands, prevents the applicant from obtaining leave. The relevant HongKong law is contained in a judgment of our Court of Appeal in Keung Siu Wah v. Attorney General [1990] 2 HKLR 238. I quote from the headnote :

“It was a constitutional imperative that the court would not interfere with the Attorney General’s discretion to prosecute. However,the court retained an inherent jurisdiction to prevent an abuse of process.”

14. In that judgment, Fuad VP observed at p.253 :

“I entertain no doubt whatever that the decision to prosecute in the instant case likewise is not subject to the judicial reviewprocess. Such a decision does not fall within the criteria for a reviewable decision stated by Lord Diplock in Council of Civil Service Unions.”

15. There have been changes to the law in England and judicial review has been used sparingly where the Director of Prosecutions haschosen to prosecute or not to prosecute. However, as Lord Steyn observed in his speech in R v. Director of Public Prosecutions ex parte Kebeline [2000] 2 AC 326, at p.371 :

“I would rule that absent dishonesty or malafides or exceptional circumstance, the decision of the Director to consent to the prosecutionof the applicants is not amenable to judicial review.”

Lord Hope said the same, at p.376 :

“There are strong grounds for the view that, in the absence of dishonesty, bad faith or some other exceptional circumstance, theDirector’s decision to consent or not to consent to a prosecution are not amenable to judicial review.”

And further, Lord Hope went on to say :

“To this must be added the fact that the process of judicial review could do no more than require the Director to reconsider hisdecision. It could not require him to change his view.”

16. Even if Keung Siu Wah v. Attorney General is to be read as allowing judicial review of the Director of Public Prosecutions in cases where abuse of process is identified, inthe present case, as I have said, I have been unable to identify anything that even arguably could constitute a basis for suggestingthat there has been abuse of process.

17. Assuming, without finding it to be so, that the English authorities are binding, or should be followed, I am still faced with theposition that absent dishonesty, bad faith or some other exceptional circumstance, the decision of the Director of Public Prosecutionsis not subject to judicial review.

18. As I have made clear to the applicant, whether I would have reached a different decision from counsel in the Department of Justiceis not the point. Judicial review is not concerned with the merits of a decision. It is concerned with the legality of the process,and there is nothing to suggest that the Department of Justice in this matter has not acted entirely honestly and rationally on theevidence presented to it.

19. In the circumstances, while I understand the deep feelings of the applicant and Mr Man, application for leave must be refused. Therewill be no order as to costs.

  (M.J. Hartmann)
Judge of the Court of First Instance,
High Court

Applicant, in person, present

Mr Darryl Saw, SC instructed by the Department of Justice, for the Respondent

Appeal dismissed: see CACV314/2005 dated 30 May 2006