Sino Moral Ltd v. Magistrate Wat Lai Man Minnie

HCAL 1078/2023

[2023] HKCFI 2811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1078 of 2023

Application for Leave to Apply for Judicial Review
Notification of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by The Honourable Mr. Justice Wilson Chan:

1.  Leave to apply for Judicial Review refused; and

2.  The costs of the application for leave to apply for Judicial Review be paid by the Applicant to the 1^st and 2^nd Putative Interested Parties, such costs are to be summarily assessed with the directions that (i) the 1^st and 2^nd Putative Interested Parties shall each file and serve a Statement of Costs within 14 days from the date hereof; and (ii) the Applicant shall file and serve its Grounds of Objection (if any) within 14 days thereafter. The summary assessment shall be conducted on paper unless otherwise directed by the court.

Observations for the Applicant:

A.  Introduction

1.By Form 86 dated 3 July 2023, the Applicant:

(1)  names as the proposed Respondent the Magistrate, Miss Wat Lai Man Minnie (“Magistrate”), and as respectively the 1^st and 2^nd Interested Parties Messrs V Hau & Chow, solicitors (“VH&C”) and Mr Koo Ming Kwon (“Mr Koo”);

(2)  seeks leave to apply for judicial review against the “Decision of the Proposed Respondent in not allowing the Applicant to conduct private prosecution against [VH&C] and [Mr Koo] for conspiracy to pervert the course of justice”;

(3)  seeks the relief of a “declaration that the Applicant may conduct private prosecution as proposed”;

(4)  states the ground on which relief is sought as being “The said Decision of the Proposed Respondent is contrary to the Hong Kong Basic Law, Article 33 which states: All Hong Kong residents should be equal before the law”.

2.Pursuant to directions from this court, the Applicant has served its application on the Magistrate, VH&C and Mr Koo. Under cover of a letter dated 31 August 2023, VH&C and Mr Koo lodged their respective Initial Responses to the Applicant’s Form 86.

B.  Case Background

3.The material facts relevant to the present proceedings have been summarised in VH&C’s Initial Response as follows.

4.Mr Siu See Kong (“Mr Siu”) is and was at all material times the sole director and shareholder of the Applicant and the principal of Messrs Siu and Company, solicitors.

5.VH&C was instructed by Mr Koo in a defamation matter. On 16 November 2018, Mr Koo published in several local newspapers and advertisement a statement in relation to Mr Siu’s allegations against alumni of Pui Ching School (the “Statement”). Mr Siu regarded the Statement as a “criminal libel” and reported the matter to the police. In addition, Mr Siu published letters to various entities, including newspaper publishers, accusing Mr Koo of threatening Mr Siu by way of the Statement (the “Accusation Letters”). Mr Siu further commenced a civil action, namely, HCA 2925/2018 against Mr Koo based on the Statement but was later discontinued by Mr Siu.

6.On the basis of the defamatory nature of the Accusation Letters, Mr Koo commenced a separate action HCA 35/2019 against Mr Siu for civil libel on 8 January 2019. On 3 August 2020, Mr Siu through his solicitors, Messrs Deacons, filed the Notice of Sanctioned Payment offering to settle the claim in the sum of HK$210,000. VH&C was instructed by Mr Koo that certain proposed conditions should be added to the sanctioned payment in order to facilitate global settlement of all matters between Mr Siu and Mr Koo. On 21 August 2020, acting on instructions and upon seeking legal opinion from the advising Senior Counsel instructed by Mr Koo, VH&C wrote to Messrs Deacons setting out further conditions proposed by Mr Koo, including a condition that “Your client [ie Mr Siu] shall withdraw his complaint to the Hong Kong Police (with report no: LM 351/19 in HK WCH 18/1)” (the “Condition”).

7.Unfortunately, Mr Siu considered the Condition an act of perverting the course of justice and reported the matter to the police. He was subsequently informed of the Department of Justice’s decision declining to prosecute and/or take further action against VH&C and Mr Koo. Mr Siu sought to challenge the decision of the Department of Justice by way of applying for leave to apply for judicial review in HCAL 726/2022 on the same ground as the present application, namely, the decision is contrary to Article 33 of the Hong Kong Basic Law (which should be Article 25). On 18 October 2022, the application for leave to apply for judicial review was dismissed by K Yeung J, when it was considered that Mr Siu’s intended judicial review was not reasonably arguable: Siu See Kong t/a Siu and Co v Commissioner of Police [2022] HKCFI 3228.

8.On 1 February 2022, the Applicant, a company not interested in the matter but controlled by Mr Siu, applied to the Magistrate to issue a summons for private prosecution against VH&C and Mr Koo for conspiracy to pervert the course of justice (the “Intended Private Prosecution”). A Review Hearing was held on 8 June 2023. On 21 June 2023, the Magistrate refused to issue the summons on the ground of no evidence/prima facie case. The Applicant now seeks to challenge this decision (the “Decision”).

C.  Consideration by the court

9.In Tsui Koon Wah v Peter Law, Magistrate of Kowloon City Magistrates’ Courts, HCAL 53/2007 (unrep, 21/06/2007), at paragraph 23, Reyes J held that the court should not lightly interfere with the magistrate’s decision. In a judicial review of a magistrate’s refusal to issue a summons for private prosecution, provided that the magistrate has acted reasonably, the court cannot substitute its view as to what should or should not have been issued.

10.In the present case, the Applicant’s only ground for the intended judicial review is the one set out at paragraph 1(4) above. It is identical to the ground relied upon by the applicant in Siu See Kong t/a Siu and Co v Commissioner of Police, Supra. At paragraph 7 of that case, K Yeung J had this to say:

“7. The Applicant in the Form 86 relies as his ground Article 33 of the Basic Law. That Article concerns the freedom of choice of occupation, which has nothing to do with the present application. The words cited by the Applicant belong to those of Article 25, which equally have no bearing upon this application.”

11.The same comment is applicable to the present case. As submitted by VH&C, it is unclear and unparticularised how it is said that the Decision was in contravention of the relevant principle of Article 25 “equality before the law”, especially when the Decision was based on the ground of no evidence/prima facie case to issue the summons, as opposed to any specific conduct or status of the parties.

12.The only particular raised by the Applicant is a piece of news read in the media that “a woman stole a cat and asked the complainant to withdraw the complaint to the police and she was charged and convicted of perverting the course of justice”.

13.Without knowing the background and full details regarding this piece of news, it is impossible to conclude that it provides any support for a challenge of the Decision by judicial review.

14.Further, in the context of the present case and for the reasons set out in paragraph 3(21) of VH&C’s Initial Response (which I agree and adopt), there is complete lack of evidence to support a prima facie case of the offence of attempting to pervert the course of justice. The Decision by the Magistrate cannot in any way be said to be Wednesbury unreasonable.

15.Further still, as mentioned in paragraph 7 above, the Department of Justice had already decided not to initiate prosecution and the application for leave to challenge such decision by judicial review was refused by K Yeung J. It is trite that even if a summons were granted for the commencement of the Intended Private Prosecution, the Department of Justice has the right to take up such a prosecution. Since the Department of Justice all long concluded that there was no reasonable prospect of conviction, it could take up such a prosecution and then put an end to it. Accordingly, I agree that the entire exercise undertaken by the Applicant is futile and would be a waste of the court’s limited resources.

D.  Conclusion

16.For the reasons set out above, the Applicant’s application for leave to apply for judicial review is refused.

17.Both VH&C and Mr Koo seek costs. On the question of costs, K Yeung J had this to say at paragraph 11 of Siu See Kong t/a Siu and Co v Commissioner of Police, Supra:

“… Whilst marginal, I am of the view that this case remains, albeit barely, within the parameters of those in which a citizen should ‘be able to seek relief without fear, if permission were refused, of being saddled with the respondent’s costs’ at the stage of seeking leave.” (Emphasis by underlining supplied)

18.In my view, in the present case, for the Applicant to mount another application for leave to apply for judicial review based on exactly the same ground as the previous failed attempt (see paragraphs 10 and 11 above) would amount to an abuse of the process of the court, or at least the Applicant’s application can properly be described as “thoroughly ill-conceived or unmeritorious” (in terms as stated by the Court of Final Appeal in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17(5)).

19.Further, the Initial Responses lodged by VH&C and Mr Koo are of assistance to the court in determining the leave application. In these circumstances, I order that the costs of the application for leave to apply for judicial review be paid by the Applicant to the 1^st and 2^nd Putative Interested Parties, such costs are to be summarily assessed on the papers with the directions set out above.

Dated the 3^rd day of November, 2023.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1