Chun Wah Tak, Bruce v. Solicitor General

HCAL 2286/2019

[2020] HKCFI 1794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2286 OF 2019

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BETWEEN

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J U D G M E N T

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1.The applicant seeks to judicial review the decision[1] of the Incumbent Solicitor General (‘ISG’). It confirmed the decision of the Former Solicitor General (FSG) in 2015. In the 2015 decision, the FSG reconsidered his 2014 decision and refused the application for ex gratia compensation by the applicant for wrongful imprisonment. The applicant argues that the ISG decision is a second and distinct decision amenable to judicial review. This court orders a roll-up hearing.

Background

2.Shortly after 9pm on 22 March 2008, a Chinese flagged bulk carrier ‘Yao Hai’ collided with a Ukrainian flagged oil-rig supply vessel ‘Neftegaz 67’ at the eastern entrance to the Castle Peak buoyed channel.  The captain of Neftegaz 67 (D1), the master of Yao Hai (D2), the pilot of Yao Hai (D3) and the applicant (D4) were prosecuted under s. 72 of the Shipping and Port Control Ordinance.[2]  The applicant was the co-pilot of Yao Hai.  All of them were convicted in the District Court.[3] The applicant was sentenced to 2 years and 4 months imprisonment.[4]  He was granted bail pending appeal after spending 29 days in prison.

3.The Court of Appeal quashed the conviction of the applicant in December 2011.  The Court awarded costs of the trial and the appeal to the applicant.

Application for compensation

4.On 24 March 2014, the applicant applied for compensation.  The Former Solicitor General (‘FSG’)[5] considered his case under the Ex Gratia Scheme[6] and the Statutory Scheme[7].

5.By the letter dated 24 October 2014[8], the FSG refused the application on the grounds that:

a. The conviction was not overturned on the basis of a new or newly discovered fact showing conclusively that there had been a miscarriage of justice.

b. The applicant’s case was not within the Guidelines submitted to the Legislative Council.  There was no serious default by any law enforcement agency or the Prosecution.  There was no serious default by the trial judge.

6.The applicant invited the FSG to reconsider his application on both grounds through his solicitor in January 2015.  In the last paragraph of the letter, the applicant requested that the final decision be available on or before 23 March 2015.

“If we have not succeeded in persuading you to reconsider this application, please would you be kind to indicate your final decisions, in respect of both Statutory and Administrative schemes. We look forward to hearing from you on or before Monday 23 March 2015.”[9] (the underline was by the applicant’s solicitor)

7.The FSG replied on 30 April 2015 that he maintained his previous decision and refused the application.[10]

8.There was no further communication until 15 January 2018.  The applicant’s solicitor wrote to the ISG[11] stating that the FSG did not give any final answer to the applicant.  In that letter, the applicant relied on the comment of Lord Clarke NPJ in the Kulemesin case.[12]

9.In paragraph 181 of the judgment, Lord Clarke NPJ commented:

“Reliance was also placed upon the fact that the prosecution did not initially allege that this was a narrow channel case. That is true. The prosecution’s first case did not refer to the narrow channel rule at all. On the contrary it asserted that it was a head on case, presumably under rule 14, under which vessels meeting on reciprocal or nearly reciprocal courses so as to involve risk of collision must alter course to starboard. No proper thought could have been given to the case before this charge was drafted. Rule 14(b) expressly provides that such a situation shall be deemed to exist when a vessel sees the other vessel ahead or nearly ahead and by night she can see the masthead lights in a line or almost in a line and/or both side lights. In the present case there was no time when the vessels could see both the other’s side lights. As the plot in Annex 2 shows clearly, save perhaps at the last, the position throughout (assuming of course that they were looking) was that the N67 could see the green starboard light of the YH and the YH could see the red port light of the N67. They were crossing vessels not end on vessels. No competent mariner could have thought otherwise.”

10.Relying on the sentence underlined, the applicant argued that there were new or newly discovered facts to show that the prosecution should not have been brought against the applicant in the first place.[13]

11.On 14 February 2018, Mr. Richard Ma, Senior Government Counsel, replied that the decision of the FSG in the letter dated 24 October 2014 was final.  That decision was reconsidered and confirmed by the FSG in the letter dated 30 April 2015. Mr. Ma however agreed to consider the letter dated 15 January 2018 from the applicant.[14]  

12.Subsequently, there was a series of correspondences which was not important.  In the interim, the applicant commenced civil action against the Government.[15]

13.On 10 May 2019, Ms. Carmen Poon, Senior Government Counsel, wrote to the applicant confirming that the final position was as stated in the letter dated 30 April 2015.[16]

The Judicial Review

14.On 8 August 2019, the applicant filed an application for leave for judicial review the decision of the ISG contained in the letter dated 10 May 2019.  

15.In the beginning of the roll-up hearing, Mr. Daniel Hui[17] applied for an amendment of the Form 86.[18] The reason being that the Guidelines applied by the ISG in assessing the application for compensation was not part of the Ex Gratia Policy.

16.Mr. Johnny Ma[19] opposed the amendment.  He argued that the applicant changed the basis of the judicial review.  The status of the Guidelines was never doubted in the original Form 86.  On the contrary, the applicant relied on specific paragraphs of the Guidelines to justify his application for compensation.

17.I agreed with Mr. Ma.  The amendment changed the basis of the judicial review substantially.  I refused the application for amendment.

Did the letter from the ISG amount to a second decision?

18.The applicant argued that he made a 2^nd application to the ISG by the letter dated 15 January 2018. The applicant stressed that there were new matters arising from the decision of the Court of Final Appeal in Kulemesin.  The refusal of the ISG on 10 May 2019 was therefore a distinct and reviewable 2^nd decision.

19.The putative respondent pointed out that there was no 2^nd decision.  The refusal of compensation by the FSG was clearly communicated to the applicant on 30 April 2015.  It was the final decision.  The applicant should have challenged this decision by way of judicial review.

20.Further, the comment of Lord Clarke NPJ referred to the charge against the captain of ‘Neftegaz 67’ (D1) only.  His Lordship pointed out that the prosecution did not initially allege that it was a narrow channel case.  On the contrary, the initial basis of the prosecution was that it was a head on collision case.  D1 relied on this in his appeal.

Discussion

21.The FSG first refused the application of compensation by the letter dated 24 October 2014. The applicant invited the FSG to reconsider by the letter dated 29 January 2015. The applicant reiterated that he expected the final decision to be available on or before 23 March 2015[20]. The FSG informed the applicant by the letter dated 30 April 2015[21]. This decision must be taken as the final decision.

22.Nearly three years later on 15 January 2018, the applicant’s solicitor wrote to the ISG alleging that he did not give any final answer to the applicant.  In this letter, the applicant’s solicitor also referred to the letter dated 30 April 2015.  

23.It is inexplicable that the applicant’s solicitor did not regard the letter dated 30 April 2015 as the final decision.  From the context of all the correspondences then, it was obvious that the applicant expected a final decision on or before 23 March 2015 which was later extended to 30 April 2015.  

24.The question then is whether the decision of the Court of Final Appeal in Kulemesin raised new matters which obliged the ISG to reconsider.

25.The conviction of the applicant was quashed by the Court of Appeal in December 2011.  The Court of Appeal concluded that the failure of the applicant to advise the pilot[22] of Yao Hai did not give rise to criminal liability.  Although the applicant failed to keep a proper look-out in breach of rule 5 COLREGS[23], this fact alone did not endanger or cause to be endangered the safety of the crew of Yao Hai.[24]

26.In the same judgment, the Court of Appeal also ruled that the offence under s. 72 of the Shipping and Port Control Ordinance was an absolute offence.[25]  

27.The appeal in the Court of Final Appeal only concerned the captain of ‘Neftegaz 67’ (D1) and the pilot of Yao Hai (D3).  Ribeiro PJ ruled that s. 72 of the Shipping and Port Control Ordinance was not an absolute offence.  It was for the prosecution to prove all elements of the offence beyond reasonable doubt.  A defendant was entitled to acquittal if he could raise a reasonable doubt.[26]

28.As to the comment in paragraph 181, Lord Clarke NPJ pointed out that the prosecution should have proceeded on the basis that it was a narrow channel case.  In my view, there is no new matters raised in his Lordship’s judgment.

29.I agree with the putative respondent.  The comment only concerned the case of the captain of ‘Neftegaz 67’ (D1), it did not concern the applicant at all.  In fact, the applicant gave evidence in the trial that it was a narrow channel case.[27]

30.In the letter dated 15 January 2018 by the applicant’s solicitor, there was no mention as to the nature of the alleged new or additional matters arising from the decision of the Court of Final Appeal.  In my judgment, the applicant’s position was the same before and after the decision.  The basis of the request made by the applicant’s solicitor is unsubstantiated.  

31.The fact that the ISG had held a conference to discuss the applicant’s request is neither here nor there.  The fact is that the ISG only confirmed the decision of the FSG.  The letter dated 10 May 2019 should not be regarded as a distinct decision amenable to judicial review.

32.In this leave application, the applicant tries to revive the challenge in relation to the decision of the FSG in 2014 and the reconsideration in 2015.  Both are substantially out of time.  There is no reason given for the delay.  In fact, there is no attempt to apply for extension of time.

33.Given that there was no 2^nd decision by the ISG, the key decision was by the FSG.  I refuse leave for judicial review.  There is no need to consider the grounds raised in the Form 86 and the additional argument raised at the end of the hearing.[28]

Conclusion

34.I refuse leave for judicial review.  It is not reasonably arguable.  There is no realistic prospect of success.

35.I make the following orders:

a. Leave for judicial review refused.

b. Costs to the putative respondent.

Mr. Daniel Hui, instructed by Haldanes, for the applicant.

Mr. Johnny Ma, counsel on fiat, leading Ms. Vienne Luk, SGC of DOJ, for the putative respondent.