Read the full judgment text of CACV 143/2014 on BabelCite. This Court of Appeal judgment was delivered on 17 April 2018 before 林文瀚 (副庭長), 張澤祐, 關淑馨.
Administrative and public law – judicial review – police criminal investigation – appeal against refusal of leave – whether police refused to investigate – scope of judicial review over police investigations – delay – admissibility of new evidence on appeal. The applicant sought judicial review of the police's handling of her complaint (WTS#RN13033942) alleging that medical staff had killed her mother. The Court of First Instance judge refused leave on grounds of no arguable case, no Wednesbury unreasonableness, no arguable breach of the Basic Law, and that the application was substantially out of time under Order 53 rule 4(1). The applicant appealed and sought to introduce new evidence, including subsequent police correspondence and a 2009 authorisation letter. Held, appeal dismissed: the proper function of an appeal is to consider whether the judge below erred; the court in judicial review does not assume the role of the police or direct how a criminal investigation is to be conducted (黃得煒及警務處處長 HCMP 2443/2016, 黃容治及立法會秘書處 CACV 169/2015, D v Secretary for Justice followed). The 2014 police letter demonstrated that the police had not refused to investigate and that the obstacle to further investigation was the applicant's own refusal to sign a consent form to obtain hospital records. The 2015 closure decision was a professional judgment based on insufficient evidence, with the offer to reconsider upon receipt of new material. New evidence was admitted only insofar as the police correspondence was relevant to whether the police had refused to investigate; other documents aimed at relitigating the underlying medical treatment allegations were excluded. The applicant could not use the appeal to advance new judicial review grounds not before the judge below. The judge's refusal of leave was correct on grounds of no arguable case and substantial delay (Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 applied; Law Chun Loy v Secretary for Justice applied on delay). Outcome: appeal dismissed; new evidence largely not admitted.
Legal issues: Whether police had refused to investigate at time of judicial review application · Admissibility of new evidence on appeal · Whether the judge below erred in refusing leave for judicial review
Outcome: Appeal dismissed; the Court of Appeal upheld the judge's refusal to grant leave to apply for judicial review. Most of the new evidence sought to be introduced was not admitted.
Cited by 49 cases · Cites 6 cases