Kwok Cheuk Kin v. 律政司刑事檢控專員梁卓然

HCAL 2882/2018 &
HCAL 687/2019

[2019] HKCFI 900

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

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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

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(Heard together)

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D E C I S I O N

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1.There are two applications for judicial review before the court, both relating to the decision of the Secretary for Justice made on 12 December 2018 not to prosecute Mr Leung Chun Ying (“Mr Leung”), the former Chief Executive of the HKSAR, for various alleged criminal offences the details of which it is not necessary to set out in this decision.

2.In HCAL 2882/2018 (“the Kwok JR”), Mr Kwok made the application for leave to apply for judicial review on 17 December 2018.  The Director of Public Prosecutions is named in the Form 86 as the putative respondent.  On the same day, the court directed that the Secretary for Justice should be joined as a putative interested party, and there should be an inter-partes oral hearing of the application for leave to apply for judicial review.

3.In HCAL 687/2019 (“the Tsang JR”), Mr Tsang made the application for leave to apply for judicial review on 12 March 2019.  The Secretary for Justice is named in the Form 86 as the putative respondent.  In addition to challenging the Secretary for Justice’s decision not to prosecute Mr Leung, Mr Tsang also challenges her decision not to prosecute the Hon Holden Chow Ho-ding (“Mr Chow”), a member of the Legislative Council, for an alleged criminal offence.  On 13 March 2019, the court directed that there should be a rolled-up hearing of the application for leave to apply for judicial review and the substantive application for judicial review.  The court also fixed a directions hearing for 3 April 2019 (ie the present hearing) to consider the further conduct of the two applications in view of the overlapping issues raised by them.

4.On 27 March 2019, the Secretary for Justice took out a summons in the Tsang JR seeking the following order, namely, that:

(1)  the directions given by the court on 13 March 2019 be varied such that there should be an inter-partes oral hearing of the leave application (instead of a rolled up hearing); or

(2)  alternatively, the Form 86 be struck out, and the application for leave to apply for judicial review and/or the application for judicial review be dismissed on the ground of abuse of process.

5.On 2 April 2019, Mr Kwok gave notice of intention to amend his Form 86 in the Kwok JR.  In the draft Amended Form 86, Mr Kwok seeks to challenge also the Secretary for Justice’s decision not to prosecute Mr Chow.

6.On behalf of the Secretary for Justice, Mr Suen submits that a rolled-up hearing in the Tsang JR is inappropriate for the following reasons:

(1)  Under Article 63 of the Basic Law, prosecutorial independence should not be subject to judicial scrutiny save in extremely rare circumstances not engaged by the grounds in the Tsang JR. Such question of jurisdiction should be determined first and a rolled-up hearing is inappropriate.

(2)  The effect of a rolled-up hearing is to compel the Secretary for Justice to deal substantively with the Tsang JR including potentially the need to adduce evidence regarding the exercise of prosecutorial discretion.  This would in itself be subjecting the prosecutorial discretion to judicial scrutiny and hence in contravention of BL 63.

(3)  If the Secretary for Justice has to deal substantively with the Tsang JR including adducing evidence regarding the exercise of the prosecutorial decision, there would be a serious likelihood that the issues canvassed in this application for judicial review would end up in the media, resulting in a trial by the media or by the public over the question of the supposed guilt or innocence of the subject of the prosecutorial decision.  This would manifestly be contrary to public interest.

(4)  A rolled-up hearing would deprive the Secretary for Justice of the opportunity to oppose leave in the Tsang JR on the preliminary grounds of jurisdiction/amenability, locus, exhaustion of alternative remedy, and merits.

7.Accordingly, Mr Suen says that court should either split the rolled-up hearing or, in the alternative, hear the strike out application first.

8.The question of whether there should be an oral hearing to consider the question of leave only or a rolled-up hearing to consider both the question of leave and the substantive merits of an application for judicial review is a case management decision.  As a matter of principle, one starts with the purpose of the leave requirement in judicial view, which is to filter out cases which are not reasonably arguable by an expeditious process.

9.Where it is clear on a quick perusal of the papers that the application is not reasonably arguable, the court will dismiss the application on paper, or hold an ex parte oral hearing to deal with the application if a hearing is requested by the applicant pursuant to Order 53, rule 3(3) of the Rules of the High Court, Cap 4A.

10.On the other hand, where is it clear that the application is reasonably arguable in the sense as established by the judgment of the Court of Final Appeal in Chan Po Fun [2008] 1 HKLRD 319, leave will be granted and the application will proceed in accordance with the procedures under Order 53.

11.However, it is not always easy for the court to determine upon a quick perusal of the papers whether the application is reasonably arguable.  Many applications nowadays are prepared by litigants in person who, perhaps understandably, fail to set out the proposed grounds of judicial review clearly in the Form 86, and/or the relevant background facts (with supporting documents) in a logical and intelligible manner in the affidavit filed in support of the application for leave to apply for judicial review.  There are also many applications prepared by lawyers which are excessively complicated, despite the court’s repeated reminders to practitioners of the observation by Litton PJ in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, at paragraph 137, that “[g]rounds for quashing the exercise of administrative power by the court if well-founded should be capable of being stated clearly and succinctly, in a few numbered paragraphs”.  Lastly, it is a fact that the complexity of applications for judicial review, both on fact and law, has increased substantially over the last decade or so making it increasingly difficult for the court to form a quick view on the merits of an application from a perusal of the papers only.

12.In any case where the court cannot form a quick view on whether the application for judicial review is reasonably arguable, the court has to decide whether to direct an oral hearing to consider the question of leave only or a rolled-up hearing to consider both the question of leave and the substantive merits of an application for judicial review.  As earlier mentioned, this is a case management decision.  In the exercise of the court’s case management powers, one should bear in mind the underlying objectives of the CJR as set out in Order 1A, rule 1, namely:

(a)  to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court;

(b)  to ensure that a case is dealt with as expeditiously as is reasonably practicable;

(c)  to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings;

(d)  to ensure fairness between the parties;

(e)  to facilitate the settlement of disputes; and

(f)  to ensure that the resources of the Court are distributed fairly.

13.One of the major considerations for holding a rolled-up hearing would be the cost-effectiveness, or procedural economy, of having one hearing instead of two separate hearings.  To an applicant of limited means but who is not qualified for legal aid, this is an important consideration and goes to the issue of access to justice.  Even where the applicant is legally aided, the procedure adopted should serve to minimize costs where possible.

14.Whatever may have been the previous practice of the court, in the view of the developments mentioned in paragraph 11 above, I consider that the court should now be more ready to order a rolled-up hearing in applications for judicial review in appropriate cases in order to give effect to the above objectives of the CJR.

15.Turning back to the present case, this is obviously not the appropriate occasion to consider the merits of the Tsang JR which would require the court to take a closer look at the precise scope of the court’s jurisdiction to intervene in the exercise of the Secretary for Justice’s power to control criminal prosecutions under Article 63 of the Basic Law.  It is clear that the court may intervene where the Secretary for Justice has acted outside the limits of her constitutional power, such as where there is evidence proving that she has acted in obedience to political instruction when making the decision, or acting in bad faith (see RV v Director of Immigration [2008] 4 HKLRD 529; Re Leung Lai Fun [2018] 1 HKLRD 523).  In the Tsang JR, the grounds relied on by Mr Tsang include (i) misinterpretation and/or misapplication of policy, (ii) fettering of discretion, (iii) error of law, and (iv) apparent bias. Whether these are permissible grounds of judicial review will have to be determined in due course.  These questions can be determined in either a hearing for leave or a hearing for striking out.

16.The practical consideration, it seems to me, is that a preliminary hearing, whether for leave or for striking out, cannot be avoided in the present case.  This consideration substantially militates against the advantage of cost-effectiveness or procedural economy arising from a rolled-up hearing.  Another relevant consideration is that in a leave hearing, other issues such as the questions of “standing” and “exhaustion of alternative remedy”, which I understand will also be raised by the Secretary for Justice, can be determined.

17.For the sake of completeness, I should add that, subject to the above observations, I do not accept the submissions made by Mr Suen referred to in paragraphs 6(2), (3) and (4) above.

18.In all the circumstances, I am prepared to vary the previous direction given on 13 March 2019 to split the rolled-up hearing, such that there shall be an oral hearing of the leave application first in the Tsang JR.  I accept, however, Mr Tam’s submission that this matter has dragged on for some time and should be resolved as soon as possible.  I therefore intend to deal with the application expeditiously, and I shall now hear the parties on the directions that should be given for the further conduct of the two applications for leave to apply for judicial review.

Mr Ernest Ng and Ms Ivy Ho, instructed by Kenneth Lam, for the Applicant in HCAL 2882/2018

Mr Jeffrey Tam and Mr Andrew Lau, instructed by Ho, Tse, Wai & Partners, for the Applicant in HCAL 687/2019

Mr Jenkin Suen, instructed by Department of Justice, for the Putative Respondent and Putative Interested Party in HCAL 2882/2018, and for the Putative Respondent in HCAL 687/2019