Lam Sze Chun v. Commissioner of Police, Hong Kong Police Force and Another

HCAL 133/2022

[2022] HKCFI 1496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 133 OF 2022

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submissions:  17 March and 14 April 2022

Date of Decision:  23 May 2022

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D E C I S I O N

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A.  Introduction

1.The applicant reported a crime to the Hong Kong Police on 3 March 2021 (“Crime Report”) and was told on 23 April 2021 that the investigation was concluded, apparently without result. Dissatisfied with how the Crime Report was investigated, he made a complaint (“CAPO Complaint”) against the case officer to the Complaints against Police Office (“CAPO”) of the Police. Feeling his concerns remained unsatisfactorily addressed, the applicant gradually made complaints to various other entities, including the Independent Police Complaints Council (“IPCC”).

2.By a Form 86 filed on 9 February 2022, the applicant seeks leave to challenge a series of actions or decisions taken by the Police and the IPCC regarding the handling of his Crime Report and the CAPO Complaint.

3.On 10 February 2022, I directed a timetable for the putative respondents to file and serve an Initial Response and for the applicant to file and serve a Reply. I said the Court would then consider if the matter could be disposed of on paper or whether further case management directions should be given.

4.Having considered the Initial Responses of the putative respondents, the Reply of the applicant, and all the other materials available to the Court, I will determine the applicant’s leave application on paper.

5.This is my Decision on the application for leave to apply for judicial review, and the related application for interim relief.

B.  Background Facts

6.The applicant apparently makes his living by trading in the stock market via online stock trading platforms. On 3 March 2021, he visited the Wan Chai Police Station (“WCH Station”) to report a suspected hacking in his personal computer by which information in the computer, including his trading information, was stolen.

7.Detective Police Constable Wong (“DPC Wong”) took a statement from the applicant on 3 March 2021. In the statement, the applicant said he discovered that an unknown software known as “DEBUG” was installed in the personal folder in his computer on 30 December 2020. He called Microsoft to make enquiry and still could not figure out how DEBUG was installed. He suspected that Microsoft hacked into his personal folder to view the information in the folder. He also suspected that his trading information on an online platform known as “Interactive Broker” was hacked such that other people would follow his buy or purchase order with a slightly more competitive price than his. As a result, his order would fail.

8.By letter dated 11 March 2021, WCH Station said that after carefully considering all information from the investigation, no one was arrested. The applicant said he did not receive this letter. In any event, he visited WCH Station again on 23 April 2021 and was informed by DPC Wong that the investigation into his Crime Report was concluded.

9.On 26 April 2021, unhappy with the investigation result, he went to CAPO to make the CAPO Complaint against DPC Wong. A standard form for making complaints against the Police, i.e. Pol. 964, was filled out either by the applicant or the recording CAPO officer, and both signed the form. DPC Wong was identified as the police officer against whom the complaint was made by his rank and number. The complaint stated in Pol. 964 was that the Police concluded the applicant’s Crime Report without investigation/handling and without notifying him of the result (until he made enquiry himself).

10.CAPO issued the applicant a letter dated the same day to acknowledge the complaint. The letter was in Chinese:

你曾於2021年4月26日提出投訴 。本課己把有關投訴記錄在案（檔號為CAPO HKI RN 21000451） 。

You have made a complaint on 26 April 2021. This Office has recorded the relevant complaint (under file No. CAPO HKI RN 21000451).

11.By letter dated 13 May 2021, CAPO further said:

你曾於2021年4月26日提出投訴警隊成員 。案件檔號為CAPO HKI RN 21000451 。

本課港島區辦事處現正調查你的投訴。請你撥電[號碼]與[吳警長]聯終，以便本課安排間錄取你的投訴的全部詳情。

You have made a complaint against a member of Police Force on 26 April 2021. The case file no. is CAPO HKI RN 21000451.

The Hong Kong Island branch of this Office is investigating into your complaint. Please contact [a Sergeant Ng] at [this number] to enable this Office to obtain the full details of your complaint.

12.CAPO took a written statement from the applicant on 31 May 2021, on his CAPO Complaint. He said he suspected that the Police had obtained some information from the investigation but did not tell him on 23 April 2021. He thought the Police might use his trading information to buy stocks. But, in response to the question of whether he had any addition to make, it was recorded that he said he did not want to make use of the “three complaint methods” to make a complaint against the Police, what he wanted was to have his Crime Report re-opened for investigation and for the investigation to be done by another team.

13.It was not stated what the three complaints methods were in the statement. But in the Police’s Initial Response, the Police referred to the guide “A Guide for Complaints” issued by CAPO and said that the three complaint methods were (a) conducting a full investigation into the complaint, (b) resolving the complaint by way of informal resolution, or (c) handling the complaint by means of Expression of Dissatisfaction Mechanism.

14.By letter dated 30 September 2021, WCH Station wrote to the applicant and referred to his request via CAPO for the Crime Report to be reviewed. WCH Station said that a review had been conducted but that the Police considered that there was insufficient evidence to arrest anyone. WCH Station also said that the Police would revisit the case in the future should there be further information showing that some other people are involved. Another Detective Police Constable was listed for enquiry this time.

15.On 30 September 2021, the applicant attended the IPCC office in person to deliver a letter of the same date. The applicant did not exhibit the letter since he did not have a copy of the letter. The IPCC replied by letter dated 8 October 2021. The IPCC explained that under the two-tier police complaint system in Hong Kong, CAPO is responsible for the handling, classification and investigation of complaints against the Police, and IPCC’s role is to observe, monitor and review the handling and investigations of “Reportable Complaints” conducted by CAPO. IPCO further stated:

With respect to your complaint cases (CAPO HKI RN 21000451) mentioned in your letter, we noted from CAPO that it was not categorized as Reportable Complaint. Should you have any enquiries in relation to your complaint cases, please contact CAPO direct for assistance [and two numbers were given].

16.By letter dated 19 October 2021, the applicant wrote to IPCC to complain about CAPO’s failure to categorize his CAPO Complaint as a Reportable Complaint and about the two-tier mechanism.

17.There followed: further correspondence between the applicant and WCH Station, where the applicant was informed that his Crime Report revealed insufficient evidence to arrest anyone; further correspondence between CAPO and the applicant where the applicant was informed that his CAPO Complaint was referred to WCH Station for consideration; and further correspondence between IPCC and the applicant where the applicant was informed that since his complaint was not categorized as a Reportable Complaint, he should contact CAPO directly.

18.In a letter dated 12 November 2021 issued by the IPCC to the applicant, it is stated:

According to section 11 of the IPCC Ordinance, “Reportable Complaints” refer to complaints lodged by members of the public that are not vexatious or frivolous and are made in good faith, and are pertinent to the conduct of police officers while on duty or police officers who identify themselves as such while off duty. The complaint should be made by or on behalf of a person directly affected by police misconduct.

[Then the two-tier mechanism is explained]. If you have any queries in relation to the progress of your case (Ref CAPO HKI RN 21000451) and the classification, please contact CAPO directly for assistance.

If you wish to relay your provided information to CAPO for their appropriate action via IPCC, your written consent within 10 working days is much appreciated.

19.On 15 November 2021, the applicant attended the private office of the IPCC Chairman (rather than the official address of the IPCC) and requested to meet her in person. According to the IPCC, the Chairman did not meet him because she was otherwise engaged.

20.On 16 November 2021, two police officers from CAPO approached the applicant on the street near his residential address (“16 Nov Incident”). CAPO said it was because they had tried to reach the applicant by phone twice but in vain. CAPO said they invited the applicant for an interview which the applicant declined, but he did not object to a “quick chat”. This is largely in line with the applicant’s account, except that he referred to the “quick chat” as an interview and that he only agreed to talk to CAPO on that occasion under the impression that they had the power to require it.

21.On 17 November 2021, the applicant attended the private office of the Chairman again. Apparently, the Chairman had arranged for three IPCC Vetting Officers to attend her private office and arranged for them to meet the applicant (“17 Nov Incident”). Gathering information from both sides, it appears that the Vetting Officers had there invited the applicant to attend an interview with CAPO.

22.As explained in CAPO’s Initial Response, IPCC informed CAPO on 17 November 2021 that the applicant was not satisfied with CAPO’s handling of his complaint and he wished to have a video-recorded interview with CAPO in the presence of an IPCC observer. CAPO explained that since IPCC Observers would only attend interviews of cases categorized as a Reportable Complaint, they understood the applicant’s request as a request to go through a formal complaint procedure and for a full investigation to be conducted. Therefore, CAPO categorized the applicant’s CAPO Complaint as a Reportable Complaint on 18 November 2021.

23.On 24 November 2021, the applicant attended a video recorded interview with CAPO in the presence of an IPCC observer (“24 Nov Interview”). A summary of what was said was attached to CAPO’s Initial Response:

(1)  The applicant requested that his Crime Report be investigated not by WCH Station or not by the same group of police. It was not sensible since CAPO is now investigating into WCH Station. The CAPO officer said they had no power to arrange them. The Crime Report was opened under a specific case number and that number would not change. Also, within the WCH Station, the Police had already arranged for another officer to review his case and the same conclusion was formed.

(2)  The CAPO officer said it was not their role to investigate into the applicant’s Crime Report. Their role is to see if the WCH Station’s investigation was proper.

(3)  The applicant said he had given a document to IPCC a few days ago (presumably during the 17 Nov Incident) and IPCC said the document was already given to CAPO. The applicant asked for its whereabouts. The CAPO officer said he did not know if IPCC had already given the document to CAPO and he would have to check. But if the applicant had a copy of the same at the moment he could give it to CAPO if he was willing to.

24.By letter dated 26 November 2021 (“26 Nov Letter”), the IPCC wrote to the applicant to put on record what happened in the previous week or so:

After issuing the letter to you dated 12 November 2021, we noted from the Complaints Against Police Office (CAPO) that the captioned case has been re-categorized as a Reportable Complaint and CAPO has initiated an investigation into the complaint. In addition, in your meeting with IPCC staff on 17 November 2021, you agreed that your complaints be followed up by CAPO for investigation. In response to your request, we have asked CAPO for an urgent arrangement of interview, your information was therefore relayed to them for the purpose of contributing to a full investigation into your case. In this connection, an interview was conducted between you and CAPO on 24 November 2021 in the presence of an IPCC Observer.

C.  Whether there are merits for review

25.In the applicant’s Form 86, he identified the decision the subject of challenge as “a series of decisions” made by the putative respondents and referred to the attachment to his supportive affirmation in which he detailed his entire dealing with WCH Station, CAPO and IPCC. In one of the attachments to the supporting affirmation, the applicant invited consideration of the cause and effect of all of the incidents/events over the nine-month period, said to be interlinked.

26.In another of the attachments to the supporting affirmation, the applicant stated that he would like to understand the finalised information before formulating final relief, but asked for consideration of making the following orders (in my non-exhaustive summary of them):

(1)  require CAPO to provide an updated status of the CAPO Complaint;

(2)  order the Police to reopen the Crime Report, with certain specific steps to be taken;

(3)  to declare CAPO and IPCC statutory duties related to the present case as the Court deems illegal, unreasonable and improper;

(4)  to order a thorough review analysis of the existing two-tier governance framework to be conducted by a reputable audit/consulting team;

(5)  to order the IPCC to oversee or investigate the activities of CAPO, not limited to those of the “reportable complaints” category, and to grant powers to the IPCC to directly advise the Commissioner of Police to order disciplinary action against CAPO’s wrongdoings;

(6)  to order damages against the Police in the sum of HK$1.5 million, and against the IPCC in the sum of nought HK$0.5 million;

(7)  to order certain interim relief; and

(8)  to order his name to be anonymized by use of initials only.

27.Both the Police and the IPCC said, in their Initial Responses, that the leave application should be dismissed for the applicant’s failure to identify either the subject(s) of intended review or the intended grounds of review. I am not sure that is an entirely fair comment. Though the expression of the applicant’s concerns and the basis for it are not set out as clearly as one would hope would be set out by a lawyer, the main thrust of his concerns is clear.

28.Further, in his Reply, the applicant has sought to set out the decisions he seeks to challenge and has provided some sort of grounds.

29.In essence, he set out the actions or inactions of WCH Station, CAPO and IPCC in a chronological order and identified such actions/inactions as 17 decisions the intended subjects of review. The proposed grounds for most of the decisions are references to phrases commonly found in administrative law such as unlawfulness, unreasonableness, procedural impropriety and references to the Police’s duties under the Police Force Ordinance Cap 232 (“PFO”), with very little elaboration, except those decisions concerning the categorization of his CAPO Complaint and the transfer of information from IPCC to CAPO where he provided more details.

30.There is some force in the putative respondents’ argument that the applicant has effectively made a series of general complaints, which is not a matter generally suitable for a challenge by way of an application for leave to apply for judicial review. Further, some of the decisions or proposed grounds are also plainly based on wrong facts.

31.The 17 decisions are:

(1) Decision 1:  Police concluded the applicant’s Crime Report without proper investigation with no reasons given. The Police concluded the investigation in a very short period of time and did not examine the applicant’s electronic equipment. The applicant did not consent to the Police’s approach and was not offered a chance to meet with the police officer to discuss his Crime Report despite his request.

(2) Decision 2:  The Police’s decision not to provide the applicant with an official notice regarding the conclusion of his Crime Report. The applicant was only informed in person when he visited WCH Station on 23 April 2021.

(3) Decision 3:  The applicant said during his meetings with CAPO from May to June 2021, he was promised that his Crime Report would be re-opened and that he was misled into believing that it would not be difficult to re-open the case. The Police’s actions were illegal and improper and he had a legitimate expectation that the Crime Report would be re-opened.

(4) Decision 4:  The WCH Station “front-ran” a case review of his Crime Report prior to CAPO arrangement and confirmation. He appears to suggest that WCH Station could only conduct a review or re-open the Crime Report with a lawful order from CAPO but the Police in their Initial Response did not explain if the WCH Station’s review/re-opening of the Crime Report was officially driven by CAPO.

(5) Decision 5:  The applicant visited the IPCC office on 30 September 2021 and 19 October 2021. On both dates, the WCH Station issued him letter regarding his Crime Report. Based on this, he suspected that the Police decided to conduct unauthorized surveillance on him.

(6) Decision 6:  By letter dated 11 October 2021, the applicant requested to have an in-person meeting with the then in-charge officer of his Crime Report. The applicant said this specific request was not answered and the Police’s letters to him were all very similar and in a template-like manner.

(7) Decision 7:  The CAPO’s referral of his case to the WCH Station was made, despite that the applicant once requested that his Crime Report should not be reviewed by the WCH Station to avoid conflict of interest because he made the CAPO Complaint against DPC Wong of the WCH Station.

(8) Decision 8:  The decision not to categorize his CAPO Complaint as a Reportable Complaint until November 2021. The applicant said his complaint should have been at all times categorized as such under section 11 of the Independent Police Complaints Council Ordinance Cap 604 (“IPCCO”), and it should have been supervised throughout the entire complaint process.

He also said that what he said at the end of the 31 May 2021 interview with CAPO should not justify CAPO’s categorization. He said his response to the question of what he would add to the statement was only an expression of emotions. That, in the whole context, should not be taken as an indication that he did not want to use CAPO’s complaint process. He did say he wanted for his Crime Report to be re-opened, which could only be achieved by CAPO’s complaint process. He also said at some point he had chosen the “Expression of Dissatisfaction Mechanism” – being one of the three methods offered – and the CAPO officer had clearly noted down his choice. He understood that choice, whilst seeming to be the least severe among the three, would still attract officer at the rank of superintendent or higher to evaluate his complaint.

(9) Decision 9:  It refers to the 16 Nov Incident where the applicant was approached by two officers from CAPO on the street near the applicant’s resident. CAPO officers said they had tried to contact the applicant by phone but in vain and thus they tried to locate him physically. The applicant says proper means of communication should be letter correspondence.

(10) Decision 10:  It refers to the 17 Nov Incident. In the applicant’s words, he was interviewed by the IPCC Vetting Officers in the Chairman’s private office without prior notice or appointment. From the applicants’ case, apparently the IPCC officers invited the applicant to attend CAPO again to make an interview in the presence of an IPCC observer. The applicant said he thought the interview was arranged by the Chairman at the moment and thus tended to accept the unanticipated interview. But over the course of the interview the IPCC officers requested him to take statements with CAPO again and adopted an uncomfortable manner/tone. The applicant said the IPCC’s decision to interview him on 17 November 2021 was an exercise in excess of the IPCC’s power.

(11) Decision 11:  The IPCC relayed information provided by the applicant – mostly concerning the complaint about CAPO – to CAPO. He said he had never agreed to such disclosure. The applicant said this amounts to a breach of IPCC’s duty to keep confidence under section 40 of IPCCO and his privacy. This also suggests a collusion between CAPO and IPCC.

(12) Decision 12:  It refers to the 24 Nov Interview. The applicant said he was not informed that the interview was requested by both CAPO and the IPCC. The applicant also suggested that CAPO officers were biased in favour of the WCH Station in the interview.

(13) Decision 13:  The Decision by the IPCC to make false statement of facts in the 26 Nov letter. The applicant points to the reference that the 24 Nov Interview was initiated by IPCC and CAPO and yet in the letter the IPCC suggested that it was made “in response to” the applicant’s request. The applicant also said he did not agree in the 24 Nov Interview that the complaint be followed up by CAPO.

(14) Decision 14:  CAPO and IPCC did not explain the re-categorization of his CAPO Complaint to Reportable Complaint. The applicant said they were under a duty to give reasons.

(15) Decision 15:  “The decision of IPCC to unreasonably ignore its core duty to uphold the objectives of Hong Kong Police governance system and framework as a whole”.

(16) Decision 16:  The failure of CAPO to update the applicant within two months after the 24 Nov Interview. The applicant said CAPO had a performance pledge to update the applicant every two months but since the 24 Nov Interview he had only received one letter dated 24 January 2022.

(17) Decision 17:  CAPO’s decision not to perform its duties under the PFO.

32.Of course, I also note that the putative respondent additionally argues that leave to apply for judicial review should be refused on bases including that the matters raised by the applicant are not amenable to judicial review, or are premature. For example, the investigation report by CAPO has not yet been submitted to the IPCC.

33.Broadly speaking – except perhaps the matters covered by Decisions 8, 11 and 14 – it is clear that the matters raised in all the other Decisions as identified by the applicant have no reasonable prospect of success.

34.Decisions 1 and 7 concern how the Police should conduct their investigation into a suspected crime, including how they would allocate human resources within the Police Force. The Police enjoy a broad operational discretion under the common law on how to carry out investigative duties, and such discretion includes deciding if an on-going investigation should be terminated: see HKSAR v Lew Mon Hung [2018] HKCA 116 at §§119-130: HKSAR v Ng Shek Wai [2018] HKCFI 720 at §§19-21; 黃得煒及警務處處長 (unreported, HCMP 2443/2016, 23 November 2016) at§22. There is no basis to interfere with how the Police conducted their investigation in the present context.

35.The other Decisions (except 8, 11 and 14) could also be quickly disposed of. They are either premised on wrong factual assumptions or do not pertain to matters which would usually attract judicial scrutiny:

(1) Decision 2:  Even on his own case, the applicant was indeed notified about the progress/result of his Crime Report orally on 23 April 2021 and in writing subsequently. If the applicant meant that the Police should have informed him in writing by 23 April 2021 the latest (i.e. less than 2 months after he first made the Crime Report), I see no basis for suggesting this.

(2) Decision 3:  The applicant’s Crime Report was indeed re-opened/reviewed by the Police after he made the CAPO Complaint.

(3) Decision 4:  It is the applicant’s own case that he requested CAPO to ask for the investigation of his Crime Report to be re-opened. If the applicant suggests that there must be some sort of “formal or official order” from CAPO before WCH Station could re-open his Crime Report, he did not explain what are the required formal or official order and the basis for saying so.

(4) Decision 5:  There is no factual basis to suggest Police’s surveillance of him.

(5) Decision 6:  There are no public law reasons why the Police should offer a meeting in person with him in the context.

(6) Decision 9:  The applicant did agree to talk to the Police on the 16 Nov Incident, although he said he did it under the impression that the Police had power to do so. Whilst not every complainant would appreciate the Police’s decision to approach him on the street for the purpose of taking statements for his complaint, it is clearly within their power to do so.

(7) Decision 10:  The applicant did say he “tended to accept” the unanticipated interview on 17 November 2021. His case was not that he was forced to do so. The applicant contacted IPCC about his CAPO Complaint. It could not be argued that the IPCC had no power to ask the applicant to talk about his complaint without prior appointment when the applicant himself apparently showed up at the private office of the Chairman of IPCC about the same matter also without prior agreement.

(8) Decision 12  concerns what was or was not said at the 24 Nov Interview. These are not matters which would usually amount to decisions amenable to judicial reviews. In any event, the applicant did not suggest that he did not know the interview was conducted in the presence of an IPCC observer.

(9) Decision 13  concerns whether the IPCC’s 26 Nov Letter about who said what during the 17 Nov Incident was correct. These are not matters which would usually amount to decisions amenable to judicial reviews. The applicant did not explain how the IPCC had infringed his public law rights even if IPCC’s account of what transpired in the 17 Nov Incident was factually incorrect.

(10) Decision 15 and 17  are devoid of any particulars. They are not “decisions as such” but they are perhaps the applicant’s general understanding that the Police and IPCC had breached their duties.

(11) Decision 16:  if applicant counts from 24 Nov 2021 – which appears to be his case – 24 January 2022 is within the 2 months’ period. There is no need to discuss if a performance pledge could properly give rise to public law complaint.

D.  Decisions 8, 11 and 14

36.Decisions 8 and 14 together seem to me to raise the question about the proper categorization of the CAPO Complaint – including perhaps as to the legality of the Expression of Dissatisfaction Mechanism, and its relationship with the two-tier mechanism provided for in the IPCCO.

37.Decision 11 also seems to me to raise arguable matters for review relating to the correct parameters of the duty of confidence owed under the IPCCO.

38.Whilst I think it might be said that Decisions 8 and 14 are decisions of the Police/CAPO, and that Decision 11 might be said to be a decision of the IPCC, I think there may be some overlap, so that I grant leave in those respects as against both respondents. Indeed, where a purpose of the IPCC is to provide supervision and oversight to the activities of CAPO, I think would be helpful to receive submissions from both parties to that arrangement.

E.  Interim Relief

39.The application for interim relief which the applicant invites me to consider is in relation to: (1) ordering the Security Bureau and the Police to ensure the applicant’s safety and to prevent any disturbance, illegal/unauthorised surveillance, loss of possession or problematic tricks which are able to adversely affect his living, physical body and health; and (2) the damages claims put forward by him.

40.There is no basis on which the applicant is properly entitled to any such interim relief, which I therefore refuse. Even if there were any proper legal basis, I would in the exercise of my discretion still refuse such interim relief.

41.As already indicated, the applicant has also asked that his identity be anonymized, by use of initials. The basis put forward was to prevent the applicant from “unpredictable manipulations done by potential gamers, hackers, offenders and inferior policeperson etc when they know applicant’s situation”. However, in the exercise of my discretion, I do not think this is a case in which there should be any departure from the ordinary approach to open justice and the naming of persons by whom and against whom legal proceedings are brought.

F.  Conclusion

42.I grant leave to apply for judicial review in respect of only Decisions 8, 11 and 14 (as described above) on the grounds I have indicated. But I reject leave as regards all other Decisions mentioned as the intended targets of review.

43.I reject the application for anonymity, and the other applications for interim relief.

44.I direct the parties to provide to me by 9 June 2022 their respective proposals for case management directions, for my consideration in accordance with §§8-12 of Practice Direction 26.1.

45.All questions of costs are reserved.

The applicant, acting in person

Ms Liesl Lai, Senior Government Counsel (Ag.) and Mr Vincent Yeung, Government Counsel, of the Department of Justice, for the 1^st putative respondent

Deacons, solicitors for the 2^nd putative respondent