郭卓堅 v. 律政司司長林定國

HCAL 1513/2022

[2023] HKCFI 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1513 OF 2022

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D E C I S I O N

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A.  Introduction

1.By a Form 86 filed on 16 December 2022, the Applicant seeks an injunction to prohibit the putative respondent Secretary for Justice (“SJ”) from prosecuting, on the charge of fraud, matters arising from monetary disputes between landlord and tenant.

2.The Applicant has asked for an oral hearing in his supporting affirmation, which hearing I fixed for today. I also directed the SJ to file an Initial Response, which was filed on 5 January 2023, signed by Mr Alvin Hor and Mr Eric Kwong, both Government Counsel of the Department of Justice (“DoJ”). As permitted by my directions, the Applicant has since filed a Reply to the Initial Response on 10 January 2023.

3.At the hearing today, the Applicant has appeared in person, and has relied on those matters canvassed by him in writing. The SJ has been represented by Mr Hor and Mr Kwong, who have relied on the matters canvassed in the Initial Response.

B.  Proposed Grounds of Review

4.In the Form 86, the Applicant says monetary disputes between landlord and tenant have always been effectively dealt with by way of civil litigation. But “this time” (without further identifying the occasion) the SJ had decided to prosecute the relevant person on the charge of fraud. The Applicant says such a decision would cause public unrest and plunge the society into chaos.

5.In the supporting affirmation, the Applicant says that he is a “stakeholder” of these judicial review proceedings. This seems to be on the basis that he was allocated a public housing unit in Yau Tong in 2019, but he did not live there because the location was not convenient. In November 2022, the Government forfeited the lease on the basis that he had breached the terms of his tenancy. I suppose what he means to say is that he has ‘standing’ because he is also at risk of being prosecuted for fraud for breaching the terms of his tenancy. As he put it in his Reply to the Initial Response, “these days, those who breach a land lease/tenancy agreement are subject to criminal prosecution of fraud by the DoJ”.

6.But the Applicant does not say that he has himself been prosecuted or that there is any sign indicating such prosecution might be forthcoming. The most that he says is that he has been legally advised (though does not say by whom) that a criminal charge of fraud may be preferred by the DoJ any time for a mere breach of a land lease/tenancy agreement.

7.The Applicant further points to certain examples, so as to show that breaching the terms of a tenancy is a common occurrence in Hong Kong. He points to the general facts that: a tenant may sub-let part of the leased area to someone else (presumably in breach of the head tenancy); and a tenant may also register his or her flat as a business address even though the tenancy specifies for residential use. He then says law enforcement agents cannot selectively enforce the law because all persons are equal before the law. I suppose what the Applicant tries to say is that the SJ’s decision to prosecute a landlord and tenant dispute for fraud could have a huge impact on society, given the common occurrence of such disputes.

8.In his Reply to the Initial Response, he also suggests that he has been living in “fear and panic” as a result of the failure of the SJ to follow the normal practice of resolving tenancy disputes in civil litigation, instead of seeking to hold a person criminally liable for the charge of fraud. As he puts it, by posing a rhetorical question, unless the SJ carries out “selective and targeted prosecution, ignoring Article 25 of the Basic Law”, how can the large number of breaches of land leases and tenancy agreements be addressed by charging one or two people on fraud against the government?

9.By way of relief, the Applicant seeks a categorical prohibition to restrain the SJ from prosecuting a certain type of cases on the ground that – insofar as I can discern – that type of case could be, and has always been, dealt with effectively by way of civil litigation

C.  Any Arguable Intended Grounds of Review?

10.This Application can be disposed of quickly.

11.First, as Mr Hor has identified, the Applicant has failed to identify any actual decision intended to be challenged in the current proceedings. Though the Applicant has referred to “this time”, he has not specified the actual time – even if people who keep an eye on current legal affairs in Hong Kong might make a supposition as to the particular prosecution he has in mind.

12.This first point is connected to the fact that the declarative or injunctive form of relief sought also gives rise to uncertainty. In effect, the declaration or injunction sought is broad and all-encompassing in relation to apparently numerous potential decisions, which have themselves not yet been made and may never be made. The Applicant cannot identify any decision which actually directly affects him.

13.Nor – and this is also connected to the first point – is there any proper identification of any specific or proper grounds of review, in the identification of an alleged public law wrong. This failure to meet the mandatory requirement in RHC Order 53 rule 3(2)(a) is itself a reason to refuse leave to apply for judicial review. As has been stated on numerous previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant who seeks leave to apply for judicial review.

14.In any event, the subject of the intended challenge appears to be directed at prosecutorial decisions. This requires reference to Article 63 of the Basic Law, which provides that:

The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.

15.Whether prosecutorial decisions of the DoJ are amenable to judicial review has been discussed by Chow J (as Chow JA then was) in his decision in Tsang Kin Shing v Secretary for Justice, [2019] HKCFI 2215 at §§22-39, and by Alex Lee J in Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397 at §§34-35.

16.In gist, as the law now stands in Hong Kong, prosecutorial decisions made by the DoJ are not susceptible to judicial review on conventional administrative law grounds, but only on the ground of unconstitutionality. That is a result flowing from Article 63 of the Basic Law. The power to control criminal prosecution has been constitutionally bestowed upon the DoJ and can be reviewed only on the basis that the DoJ has exceeded the constitutional limit of broad power given to it. There is no exhaustive list where it might be said the DoJ has exceeded the constitutional powers granted to it. But, examples include where it has acted under political instructions or acted out of bad faith.

17.By the very limited nature of the ground on which the DoJ’s exercise of prosecutorial powers could be reviewed, it is clear that relief of the categorical nature sought in this application is not possible. The Applicant has also failed to propose any ground which could be framed as unconstitutionality.

18.In passing, it might be noted that there are frequently sets of facts which might give rise to civil and/or criminal proceedings. To make a general complaint that one type of proceeding might be taken in addition to or as an alternative to the other type of proceeding is so vague as to identify nothing amenable to any judicial review.

D.  Conclusion

19.This application does not give rise to any reasonably arguable grounds, with any reasonable prospect of success.

20.The application is dismissed.

E.  Costs

21.As to costs, Mr Hor on behalf of the SJ seeks costs against the Applicant on the indemnity basis, for three reasons:

(1)  First, though the Applicant is a lay person, he is very experienced in judicial review proceedings, having been the applicant (sometimes successfully) in many such proceedings, both with the benefit of legal representation and when acting in person. Therefore, to take out this application, which lacked any real particulars, was frivolous.

(2)  Secondly, judicial review proceedings do not act as the opportunity for the Applicant to launch a challenge in the hope that a proper legal case can be built for him after he has made that challenge.

(3)  Thirdly, the Applicant sought an oral hearing on an urgent basis, when there was clearly no urgency.

22.In response, the Applicant relies upon the principle set down by the Court of Final Appeal that costs might not be ordered against an applicant for judicial review where the application is brought for the sake of public interest.

23.In reply, Mr Hor says this case is not a case involving the public interest.

24.I think there is some force in Mr Hor’s submissions, and in particular the first two points he makes. As I have held, the application was procedurally defective. But, though an oral hearing was sought and took place, I did not fix today’s date on the basis of any particular view as to urgency; rather, I fixed it so as to be efficient in the disposal of this matter. In any event, in the broad exercise of my discretion, I do not think this is a case where costs should be ordered against the Applicant, not least on any indemnity basis.

25.Therefore, in this instance, I make no order as to costs.

26.But I would make clear that this is not intended to set any precedent that the Applicant or any other applicant should feel entitled to bring meritless and procedurally defective challenges without risk as to adverse costs orders.

The applicant, acting in person

Mr Alvin Hor and Mr Eric Kwong, both Government Counsel of the Department of Justice, for the putative respondent