Wong Hon Lung v. Chief Executive of HKSAR

HCAL 712/2021

[2021] HKCFI 2155

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 712 OF 2021

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Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Chambers

Date of Decision: 25 August 2021

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DECISION

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INTRODUCTION

1.This is an application for leave to apply for judicial review of the decision of the Chief Executive dated 23 February 2021 rejecting the Applicant’s petition that his criminal conviction more particularly described below be referred to the Court of Appeal for review under s 83P of the Criminal Procedure Ordinance, Cap 221 (“CPO”).

BASIC FACTS

2.On 10 August 1982, the Applicant was convicted of the offence of murder by an unanimous verdict of the jury before Mr Commissioner Leathlean (“the Trial Judge”) in High Court Case No 120 of 1982 (“HCC 120/1982”).  The principal issue at trial concerned the identification of the Applicant as the assailant in question.  The Applicant’s application for leave to appeal against conviction was dismissed by the Court of Appeal on 28 June 1983 in CACC 833/1982.  His petition to the Privy Council for leave to appeal against the judgment of the Court of Appeal was dismissed on 18 November 1983.  His death sentence was subsequently commuted to 30 years’ imprisonment in May 1989 by the then Governor of Hong Kong.  He was released from prison in 2002.

3.  Pausing here, I should mention that:

(1)  In September 1993, the Applicant applied again for leave to appeal against conviction out of time, but the application was refused by the Registrar of the then Supreme Court of Hong Kong in December 1993.

(2)  Between March 1987 and September 1994, the Applicant made 4 unsuccessful petitions to the then Governor of Hong Kong, and in September 1993, he made an unsuccessful petition to the Queen of the United Kingdom, seeking to re-open his conviction in HCC 120/1982.  Since 1 July 1997, the Applicant has made 3 further unsuccessful petitions to the Chief Executive for his conviction to be referred to the Court of Appeal for review.

4.By a letter dated 11 June 2018, the Applicant, through his solicitors, made the present (4^th) petition to the Chief Executive for his conviction to be referred to the Court of Appeal for review under s 83P of the CPO.  Enclosed with that letter was a “Petition of Wong Hon Lung” (“the Petition”) signed by leading and junior counsel dated 8 May 2018.  As stated in §5 of the Petition, only one ground of petition was advanced, as follows:

“In the present petition, there is only one fresh ground for the Chief Executive’s consideration which has not been considered by the courts before. The new ground which underlies the present application is that at trial, in examining the circumstances in which the identification by the eyewitness was made, the court erred in not giving specific directions to the jury to consider that the eyewitness was a drug addict and had taken dangerous drugs a few hours before the offences took place, and therefore his testimony should be treated with particular care and caution for those reasons.”

5.On 22 January 2020, the Private Secretary to the Chief Executive sent to the Applicant’s solicitors a document titled “Provisional views for comments by the Petitioner” (“the Provisional Views”) on the merits of the Petition, and invited the Applicant’s comments on the Provisional Views by 5 February 2020.

6.On 29 April 2020, the Applicant’s lawyers sent to the Chief Executive a “Reply to the Provisional Views of the Department of Justice” dated 29 April 2020 (“the Reply”) signed by leading counsel. The Reply essentially repeated the matters raised in the Petition.  At §14 of the Reply, there is a reference to an internal Attendance Note of the Legal Aid Department dated 10 May 1984 (“the Attendance Note”), in which it was recorded that the Trial Judge had, in a telephone conversation with the Acting Assistant Director of Legal Aid, expressed some misgivings about the conviction of the Applicant (“The Judge felt that the accused had been wrongly convicted by the jury on the evidence.  He said that the jury had been very much influenced by a visit to the scene of the crime …”).  This matter was, apparently, referred to and relied upon in the Applicant’s previous petition dated 6 May 2015[1] and presumably was rejected on that occasion, and is not relied upon as an independent ground in support of the present Petition.

7.By a letter dated 23 February 2021, the Chief Executive informed the Applicant’s solicitors that the Petition was not acceded to (“the Decision”).

8.On 17 May 2021, the Applicant, acting in person, filed a Form 86 seeking leave to apply for judicial review of the Decision. The Form 86 failed to set out the relief sought, or the grounds on which relief was sought.  The Applicant also filed an affirmation dated 17 May 2021 in support of the application.  The affirmation merely exhibited 4 documents, namely: (i) the decision letter dated 23 February 2021, (ii) the Petition dated 8 May 2018 and a couple of documents annexed thereto, (iii) a Note of Advice dated 9 March 2021 (“the Note of Advice”) signed by leading and junior counsel, which referred to the possibility of an application for judicial review of the Decision, and (iv) a letter dated 6 September 1989 from the Legal Aid Department to the Applicant, enclosing therewith a copy of the Attendance Note.  The Applicant’s affirmation failed to set out any ground of judicial review.

9.On 18 May 2021, the court gave directions for the Putative Respondent to file and serve an Initial Response to the application for leave to apply for judicial review.  An Initial Response of the Putative Respondent dated 12 July 2021 was subsequently filed and served.  The Applicant has not filed any reply to the Initial Response.

DISCUSSION

10.As this court has stated on many previous occasion, the requirement of an applicant to clearly set out, inter alia, the relief sought and the grounds on which relief is sought in the Form 86 is a mandatory requirement under Order 53, r 5(2)(a)(iii) of the Rules of the High Court, Cap 4A.  The purpose of this requirement is to enable the judge to properly carry out the filtering function of an application for leave to apply for judicial review, which is primarily intended to be an ex parte process on paper.  The requirement applies regardless of whether the applicant is acting in person or legally represented.

11.It needs to be emphasized that it is not the function of the judge considering an application for leave to apply for judicial review to plough through the materials produced by an applicant in order to find out whether some reasonably arguable grounds of judicial review exist, or formulate such grounds for the applicant.  On this ground alone, I would dismiss the present application for leave to apply for judicial review.

12.For the sake of completeness, I shall briefly consider the merits of the application.

13.In Muhammad Riaz Khan v Chief Executive, HCAL 121/2015 (unreported, 16 February 2016), at §§46-47, Barnes J approved the following legal principles formulated by counsel concerning an application for judicial review of a decision made by the Chief Executive refusing to refer a case to the Court of Appeal for review under s 83P of the CPO:

“(1) A reference to the Court of Appeal under section 83P of the CPO will be inappropriate where the court will be invited to re-examine the same case which it has already rejected.

(2) Section 83P of the CPO confers a statutory power on the Chief Executive who may exercise such power ‘as he thinks fit’ which indicates that the decision is entrusted to him and it is not one with which the court should readily interfere unless strong grounds for doing so are shown.

(3) On an application for judicial review a decision made under section 83P of the CPO is not subject to review in relation to its correctness but rather with respect to its legality.”

14.As earlier noted, only one ground is advanced on behalf of the Applicant in support of the Petition, namely, that in view of the fact that the eyewitness (“Chan”) to the offence was a drug addict and had taken dangerous drugs a few hours before the offence took place, the Judge ought to have given a special direction to the jury that the evidence of Chan should be treated with particular care and caution for those reasons.

15.In considering this ground of petition, it is relevant to note that the issue of identification, in particular the reliability of the identification evidence of Chan, was the central issue raised in the Applicant’s application for leave to appeal to the Court of Appeal in CACC 833/1982, as shown by the following passages in the “Reasons for Judgment” of the Court of Appeal:

“…His real case was that the direction on identification was inadequate and that the judge failed to remind the jury sufficiently of the bad character of the injured man.

It must be mentioned at the outset that the jury was taken to the scene of the alleged crimes and was able to judge for itself the quality of the lighting. The judge directed the jury that identification was the crucial issue and emphasised that, if the evidence of the injured man left them in any reasonable doubt at all whether it was the Appellant who attacked him, then the Appellant should be found not guilty on both counts…

Having drawn attention to a number of specific points in relation to identification, the judge did warn the jurors of the need for being ‘especially cautious’ about the evidence of the injured man in relation thereto and that they must consider all the factors to which the judge had referred ‘really terribly carefully in deciding whether you are satisfied beyond reasonable doubt that it was the accused who attacked Mr. Chan’. He went on to explain the reason why such caution was necessary. It was contended that he ‘failed [to] warn the jury of the poor quality of the identification evidence and thus the greater danger of convicting upon it’. To that we can only say that, once the judge had decided that the evidence was not so poor that it would be unsafe to leave the case to the jury, he was not obliged to express his view upon its quality, although he was entitled to make such fair observations as he thought fit. What in truth counsel argued was that the judge failed to mention to the jury various inconsistencies in the evidence of the injured man and inconsistencies between his evidence and his statement to the police. The judge told the jury that he was deliberately refraining from going through this evidence in detail because the trial had been short and the evidence was still fresh in the jurors’ minds. The judge, indeed, referred generally not merely to inconsistencies in the evidence but to the injured man’s admission to having told lies to the police.

Then it was contended that the judge failed to warn the jury adequately of the bad character of the injured man, on whose evidence the conviction would necessarily depend. We have already seen that the judge did mention the admission to telling lies to the police. He mentioned the witness’s addiction to dangerous drugs and his triad affiliation: he did not expressly mention his three criminal convictions. He said quite boldly ‘he is not of good character’.

It is always easy to point to matters which a judge might have included in his summing-up and which he omitted, but the question at the end must be whether the case has been fairly left to the jury and we were satisfied that in the present case the jury could have had no doubt of the dangers in accepting the evidence of identification.  We accordingly refused leave to appeal.”

16.It is clear that the Trial Judge did refer the jury to the fact that Chan was a drug addict with triad affiliation and had told lies to the police, and was not a man of good character.  The Trial Judge also directed the jury to be “especially cautious” about the evidence of Chan.

17.It is correct that the Trial Judge did not give any special direction to the jury about the fact that Chan had taken dangerous drugs a few hours before the offence.  However, as mentioned in the Provisional Views:

“[17] Notwithstanding his argument, it is not disputed by the Petitioner that ‘[in] both the United Kingdom and Hong Kong, there is no case law specifically indicating that the court is obliged to give a specific direction to the jury on the reliability of testimony given by an eyewitness who is a drug addict or was abusing drugs at the time he claims to have seen the offence taking place …’

[18] Whether a specific direction is required to deal with a witness who was a drug abuser turns upon the facts of each individual case and must be decided in context. The shorthand notes taken by the court reporters at the trial of the Petitioner indicate that the sobriety of Chan at the time of the offences had never been challenged. Nor was there any expert evidence adduced at trial to assist the Court as to how Chan, at the material times, might have been influenced and, if so, to what extent by drug consumption. After all, the need for specific directions in this regard was not even raised before the Trial Judge by counsel.

[19] At the trial of the Petitioner, the fact that Chan was a drug abuser came before the jury during this witness’s examination-in-chief by prosecuting counsel …

[20] After the evidence of Chan’s having taken drug had been elicited, the defence counsel did take the opportunity to cross-examine Chan over any effect it might have on him (Chan) at the material time of the offences …

[21] The defence counsel appeared to have accepted Chan’s reply that after a lapse of 7 to 8 hours, the heroin consumed by an addict of some three years’ experience had little adverse impact on his wellbeing generally or his eyesight specifically. The defence counsel neither cross-examined Chan further on his heroin dosage nor his method of consumption, for example, whether by injection or by inhalation. At the end of the cross-examination, the defence counsel did not even put to Chan that he had or might have mistakenly identified the Petitioner as the assailant under drug influence.

[22] Such was the oral testimony of Chan after cross-examination when neither the Prosecutor nor the Defence adduced expert evidence from a toxicologist or pathologist on the sobriety of a drug abuser like Chan after consumption of heroin.  Without the relevant opinion evidence to assist, there is limited basis for giving a meaningful direction which would be useful to the jury on Chan’s sobriety at the material times.  The Petitioner’s complaint against the Trial Judge is misconceived because to give a specific direction at the trial as suggested by the Petitioner would in essence only be asking the jury to speculate.”

18.The above refutation of the ground of petition was not dealt with substantively in the Reply.  All that was said, at §16 of the Reply, was that:

“However, legal niceties and technicalities aside, it strikes at the very heart of fairness and justice for the Petitioner’s conviction to stand. Given that the Petitioner continues to maintain his innocence when he has finished serving his sentence completely and when there is no obvious benefits to him personally, common sense must dictate that there are substantial doubts as to whether his conviction may genuinely be regarded as safe.”

19.In my view, having regard to the state of the evidence at the trial, there can be no valid criticism of the absence of any special direction by the Trial Judge to the jury concerning the fact that Chan had taken dangerous drugs a few hours before the offence took place, and his evidence should be treated with particular care and caution for those reasons.

20.In the Note of Advice, it is mentioned that the Chief Executive has not given reasons for the Decision and this gives rise to a “possibility” of judicial review.  However, it seems to me to be clear, in the circumstances, that the Chief Executive must be taken to have accepted the analysis in the Provisional Views set out above to reject the only ground of petition raised by the Applicant.  I do not consider that the absence of reasons in the decision letter has caused any, or any real, prejudice to the Applicant, or rendered the decision-making process unfair.

21.The Applicant has failed to identify any ground for leave to apply for judicial review of the Decision in his application. None is readily discernible from the materials before the court.

22.In all, the intended application for leave to apply for judicial review is not reasonably arguable, and does not have a realistic prospect of success.

DISPOSITION

23.The application for leave to apply for judicial review is dismissed.

24.Mr Lau for the Putative Respondent applies for the costs of the application to be paid by the Applicant on the grounds that the present application is clearly ill-conceived and constitutes an abuse of process, the Applicant has failed to identify any relief sought or grounds on which relief is sought, and the Putative Respondent has incurred time and costs in preparing the Initial Response upon the court’s directions, and provided useful and material assistance to the court in setting out all relevant background facts of the application and explaining the applicable legal principles and considerations leading to the Decision.  The principles for awarding costs against an unsuccessful applicant in an application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841), and do not have to be repeated here.  For the reasons advanced by Mr Lau, I am satisfied that this is a proper case to order the Applicant to bear the costs of the Putative Respondent, to be summarily assessed.  The Putative Respondent shall file and serve a costs statement within 14 days of this decision, and the Applicant shall have leave to file and serve his objection to the costs statement (limited to 2 pages) within 7 days thereafter.  The court shall summarily assess the Putative Respondent’s costs thereafter.

The Applicant, acting in person

Mr Philip Lau, Government Counsel of Department of Justice, for the Putative Respondent

[1] See §14 of the Reply.