Leung Shuk Mei v. Department of Justice

HCAL 1018/2021

[2021] HKCFI 2378

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1018 OF 2021

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J U D G M E N T

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A. Introduction

1.In her Notice of Application for Leave to Apply for Judicial Review dated 19 July 2021 (“Form 86”) and her supporting affirmation of the same date, the applicant (“Ms Leung”) expresses dissatisfaction with a prosecutorial decision made by the putative respondent, the Secretary for Justice (“SJ”).

2.However, the Form 86 and the affirmation do not in fact specify any intended grounds of review.

3.By letter dated 12 August 2021, the Department of Justice (“DOJ”) acting for the SJ, have sought to draw to the Court’s attention certain background material and applicable principles.

4.Having considered the Form 86, the affirmation and the DOJ’s letter, I am wholly satisfied that Ms Leung’s application for leave to apply for judicial review should be refused.  I so order.

B.     Background

5.Insofar as it is helpful to provide some context, the DOJ has in its letter informed the Court that Ms Leung was involved in an incident with another person, a Mr Tam, over a queuing issue at a bus stop.  Both Ms Leung and Mr Tam were arrested.  After police investigation and consideration by the Prosecutions Division of the DOJ, Mr Tam was charged with ‘assault occasioning actual bodily harm’ contrary to section 39 of the Offences Against the Person Ordinance Cap 212.

6.Ms Leung has repeatedly expressed her disagreement with that charge, and has insisted that Mr Tam should be charged with ‘wounding with intent’ and ‘indecent assault’, urging the DOJ to reconsider the charge and demanding an explanation of the prosecutorial decision.

7.On 23 July 2021, Mr Tam appeared before the Kwun Tong Magistracy, where he pleaded guilty.  The case was adjourned to 20 August 2021 for sentencing.

C.     Reasons for Refusal of Leave

8.RHC Order 53 rule 3(2)(a) – governing the method by which judicial review proceedings are commenced – mandates that the application for leave must be made by filing a notice in the particular form, containing the statement of grounds upon which leave is sought.

9.Where, as in this case, an applicant simply fails to identify any ground of review at all, that is fatal to the application.  It does not fall to the Court to try to identify a potential ground of review for an applicant.

10.But, in any event, the prosecutorial decision to charge and prosecute Mr Tam for the particular offence is not susceptible to judicial review.  This is because Article 63 of the Basic Law provides that the DOJ shall control criminal prosecutions, free from any interference.

11.As reminded by the letter from the DOJ, the Court of First Instance has recently reaffirmed the position that, under the framework of Article 63, the independence of the DOJ’s control of criminal prosecutions is protected from judicial encroachment, save in extremely rare situations (which are inapplicable to the present case): see Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397.

12.On these twin bases, Ms Leung’s application for leave to apply for judicial review is not reasonably arguable with any realistic prospect of success.

D.     Result

13.The application for leave to apply for judicial review is refused, with no order as to costs.

The applicant acting in person

Mr Philip Lau, Government Counsel of Department of Justice, for the putative respondent