Tsang Ho Ming v. Commissioner of Police and Others

HCAL 1174/2026

[2026] HKCFI 3763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1174 OF 2026

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D E C I S I O N

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A.  Introduction

1.The Applicant has become a regular applicant for leave to apply for judicial review. This is at least unfortunate, where the applications have no merit but require the deployment of judicial resources in order to deal with them.

2.The application in these proceedings was commenced by Form 86 dated 25 June 2026, only three days after his immediately previous application was dismissed on 22 June 2026: see the Decision of H. Au-Yeung J [2026] HKCFI 3168, which was referenced by the Applicant in the ‘Foreword’ to the present application.

3.In the present application, the Applicant has identified the impugned decision(s) as follows (sic) (bold in original):

DECISION of the executive authority challenge/in respect of which relief is sought, according to basic law article 35 clause 2 and 4A order 53 rule 1A(b)

•  INACTION of the Commissioner of police for not categorising the application of force or restraint on a suspect’s neck as deadly force and dangerous force in the use of force continuum, thus violates basic law article 28 clause 2 and hong kong bill of rights article 2 and article 3

•  FAILURE of the legislative Council to enact laws to ban the use of force or pressure or restraint on a suspect’s neck or strictly limit the use of such deadly and dangerous force by police officers only when there is reasonable fear that grave bodily injury will be inflicted as a last resort

•  INACTION of police Commissioner to adequately train its officers to stay professional and have a high emotional intelligence so that they will not use excessive force on suspect/citizen for retaliation because of rage, thus violates basic law article 28 clause 2

•  INACTION of police Commissioner to adequately train its officers about the danger of using neck restraint

•  DECISION of Secretary for Justice NOT to prosecute the police officers involved in threatening to misuse service weapon the charge of inciting others or attempting to commit the offence under cap 212 section 17 for their Facebook comments when expressing their hatred toward Bokhary J’s niece Amina Mariam BOKHARY

•  DECISION of the Secretary for Justice to continuously cover up police brutality of the hong kong police force by adopting a delaying tactic to delay the prosecution of LAM WAI WING of the charge of manslaughter by unlawful and dangerous act

4.As will be readily appreciated, most of those matters do not delineate a clear decision which is sought to be impugned.

5.The relief sought is set out in the Form 86 as follows (sic) (italics and bold in original):

1.  A preliminary injunction to ban police officer from using dangerous choke hold to control/ arrest suspect under non-emergency circumstances

2.  A declaration that the secretary for justice’s decision of not to prosecute LAM WAI WING is unconstitutional because secretary for justice acted in bad faith and try to cover up police brutality and thus took into account irrelevant political consideration when arriving his prosecutorial decision, violating basic law article 63

3.  A declaration that the secretary for justice’s decision of not to prosecute police officers who threatened to misuse service weapon and use unlawful force on Bokhary J’s niece Amina Mariam BOKHARY is unconstitutional, violating basic law article 63

4.  A declaration that the failure of the commissioner of police to categorize the application of force or restraint on a suspect’s neck as deadly and dangerous force in the use of force continuum/ resistance control syllabus when training his police officers is unconstitutional, because it violates basic law article 28 clause 2 and hong kong bill of rights article 2 and article 3

5.  A declaration that the failure of the HKSAR to enact laws to ban or limit the use of force or pressure or restraint on a suspect’s neck as a last resort by police officers is unconstitutional, because HKSAR failed its positive constitutional duty to pre-emptively protect HK citizens against police brutality and torture/ abuse/ the use of grossly disproportionate force such as neck restraint by public official of the hksar, thus subject hk citizen to potential cruel or inhuman treatment by police officer, violating hong kong bill of rights article 3 and basic law article 28

6.  A order of mandamus to compel the secretary for justice to perform his duty under basic law article 63, which is to consider prosecuting lam wai wing, the offence of manslaughter by unlawful and dangerous act

7.  A declaration that chokehold is a deadly force

NOTICE THAT the clause of article 28 of the basic law this JUDICIAL REVIEW is referring to is “Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

6.It can be noted here that most of the matters described as “decisions” do not in fact delineate a clear decision which is sought to be impugned. Together with that point, the very nature of the relief sought by the Applicant is indicative of the problems arising as to standing.

7.Having considered the materials, it seems to me to be appropriate to deal with the matter on the papers.

8.This is my Decision.

B.  The Intended Grounds of Review

9.In the Form 86, the intended grounds of review are headed or introduced as follows (removing all changes in font or emphasis found in the original):

GROUND 1: it has long been recognized by clinical neurologist that applying pressure to the neck is dangerous, and there is no medical reason or any circumstances to justify restraining a person’s neck even when in emergency

GROUND 2: legislatures worldwide and police in many countries have recognized the application of force to the human neck is inherently dangerous and a deadly/ lethal force so that they either completely prohibit the use of such force or only allow the use of such force as a last resort when there is reasonable fear that grave bodily injury will be inflicted (see appendix E)

GROUND 3: the hong kong police department cannot rely on cap 232 section 50(2) as a killing license to justify their every use of arbitrary force to arrest a suspect/ citizen every time, the force used must be reasonable in the circumstances, at least recognizing that using chokehold or neck restraint must be regarded as grossly disproportionate and unreasonable, because the police’s use of force is checked by constitutional law such as basic law and hk bill pf rights protecting right to life and right against cruel and inhumane treatment against police brutality and excessive force during arrest

GROUND 4: there is a dangerous pattern of unprofessionalism and tendency to use excessive force as a form of retaliation against citizen/ suspect among members of the hong kong police force (hkpf)

GROUND 5: the european court of human rights finds the member state violated the right to life of the victim who died during arrest concerning a similar misuse of dangerous physical force on the arrestee by law enforcement officer, and the member state have zero guideline and give law enforcement officer zero training in the use of such immobilization technique/ force

GROUND 6: the HKSAR also violated the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, human rights instrument of the united nations

GROUND 7: weird enough, the police officer who was attacked by a drunk man by chokehold shoot the man (i.e. use deadly force for self-defense) on Jan 24, 2023 in Peng Chau Court case ESCC 850/2023

10.With respect, few if any of these headings or introductions leap out as identifying a proper public law ground of review. Instead, they read like a series of comments or complaints around the topic. Further, those intended grounds do not logically support at the sum of the relief sought (see above).

11.But, before turning to the intended grounds of review, I can address other procedural aspects of the Applicant’s application.

C.  No Standing

12.The first aspect relates to standing.

13.The provision governing the question of standing is to be found in Rules of the High Court (“RHC”) Order 53 rule 3(7), which states that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates. At the leave stage, the Court should be satisfied as a threshold question that the applicant is prima facie a person with the necessary sufficient interest.

14.I note that in H. Au-Yueng J’s recent decision, it was held that the Applicant did not have the necessary sufficient interest so as to give him standing to make the application. Though recognising that the Applicant is a member of the public who is living in the HKSAR, H. Au-Yeung J held that (1) the Applicant clearly had no obvious or direct interest in the subject matter of the concerns raised by him, and (2) the Applicant was perhaps simply a ‘busybody’ seeking to interfere in matters that did not directly concern him, or where his interest was remote at best.

15.It seems to me that the position is the same in this case.

16.In the Form 86, the Applicant has set out the following under the heading ‘Standing’ (sic):

I emphasise that the hong kong police using neck restraint issue raised in this JR is of substantial and grave public interest and therefore should not be strictly bound by some 3 month time limit. Because this JR concerns the lawfulness and medical danger of neck restraint used by hk police and the safety of that immobilization technique and its future use and thus prevent any citizen in the future that may fall victim to such dangerous physical force used by a public officer of hk is at stake here. One victim of such neck restraint technique is one too many.

17.Those points do not give the Applicant the necessary sufficient interest to give him standing to make the application. Once again, the Applicant clearly has no obvious or direct interest in the subject matter of the concerns raised by him, and the specific cases and prosecutorial decisions he mentions have absolutely nothing to do with him. I acknowledge that buried within Ground 2 is some suggestion that the Applicant is a victim of abuse by the Hong Kong Police “this way”, but there is no further information or detail provided to support the suggestion or what that means, or that the Applicant has any real direct personal interest in the matters of concern addressed by him.

18.That failure to identify a sufficient interest so as to give the Applicant proper standing to make the application is, on its own, fatal to the application for leave to apply for judicial review.

D.  Delay

19.Included within the Applicant’s statement as regards standing appears to be some recognition that he faces difficulties arising from delay in the making of the application.

20.It is trite that, by virtue of Order 53 rule 4, an application for leave to apply for judicial review must be made promptly and in any event within a three month period from the date when the grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.

21.Most of the matters about which the Applicant appears to make general complaint have been in existence for a lengthy period. Insofar as he appears to refer to individual cases, they are all some years old. In other words, the application has not been made in good time. Further, I do not accept that the Applicant has identified any circumstances which might amount to good reason for, or which justify, the extension of time within which to bring the application.

22.The application stands to be dismissed on the ground of delay.

E.  No Merits

23.In any event, there is no point in extending time to permit the bringing of an application which has no merit. In this case, the failure on the part of the Applicant to identify any proper public law grounds for the intended review, and/or any grounds of review with any merit is also fatal.

24.I can deal with each of the intended grounds of review with some brevity.

25.Ground 1 as a whole simply refers to aspects of medicine, that applying pressure to a person’s neck may be inherently dangerous. The Court exercising its judicial review jurisdiction does not rule on questions of what is or is not medically dangerous.

26.Ground 2 merely sets out steps which the Applicant says have been taken in other jurisdictions in recognition of that alleged inherent danger. Even if that is correct, that does not identify any particular arguable public law failure in Hong Kong. Alternatively, the Applicant seems to make submissions as to what should be the proper elements of an offence which may involve the use of chokehold or neck restraint. First, there are of course existing offences relating to the use of force or violence, including where the circumstances might permit a plea of self-defence. In any event, such questions relating to the creation of statutory offences are a matter for the legislature, and not for the Court to deal with in a vacuum in the exercise of its judicial review jurisdiction.

27.Ground 3 merely repeats the trite proposition that the use of force must be reasonable in the particular circumstances arising. Whether the use of force is or is not reasonable in any given set of circumstances is a matter to be determined on a case-by-case basis, and not as a general approach leading to some general declaration by a Court exercising its judicial review jurisdiction.

28.Ground 4 asserts some general dangerous pattern of unprofessionalism and a tendency to use excessive force as a form of retaliation against citizens by members of the Hong Kong Police Force. This is not properly identified and specific public law complaint capable of judicial review. Obviously, in any case where it is suggested that excessive force has been used, that question will be considered and determined on the circumstances of that case.

29.Ground 5 relies upon an individual case dealt with in the European Court of Human Rights, in which comments were made about the training of law enforcement officers. As a result, the Applicant suggests that there would be negligence as to that training if there is no intentional or explicit written code or policy about whether and when and how an immobilisation technique or force is used. Again, the Court exercising its judicial review jurisdiction does not rule on individual cases of negligence, and in particular any hypothetical such case. Further, in so far as the Applicant makes the suggestion that prosecutorial decisions have been made in bad faith, there is absolutely no proper basis for making that suggestion. For example, the suggestion that the Secretary for Justice has acted in bad faith to try to cover up police brutality in the case involving a police officer called Lam Wai Wing is outrageously contrary to the facts. Indeed, in relation to that case, the Secretary for Justice has successfully opposed an application for an injunction to prevent a decision to prosecute in that case.

30.Ground 6 makes reference to Article 28 of the Basic Law (“BL 28”) and Articles 2 and 3 of the Hong Kong Bill of Rights (“BOR 2” and “BOR 3”). In that order, those provisions are as follows:

BL 28: The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

BOR 2: Right to life.

(1)  Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

(2)  Sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of this Bill of Rights and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgment rendered by a competent court.

(3)  When deprivation of life constitutes the crime of genocide, nothing in this article shall authorize the derogation in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.

(4)  Anyone sentenced to death shall have the right to seek pardon or commutation of the sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all cases.

(5)  Sentence of death shall not be imposed for crimes committed by persons below 18 years of age and shall not be carried out on pregnant women.

(6)  Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment in Hong Kong.

BOR 3: No torture or inhuman treatment and no experimentation without consent.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

31.As those provisions themselves identify, the protections apparently advocated by the Applicant are essentially already in place. Whether there has been a breach of those protections in any given set of circumstances is a matter to be determined by reference to those circumstances, and not in a general challenge sought to be brought by way of judicial review.

32.Ground 7 makes specific reference to an incident which occurred more than three years ago (emphasising the impermissible delay in the application), but in his conclusion the Applicant poses the rhetorical question “Did the Basic Law not say everyone is equal before the law?”. Unsurprisingly, the answer to that is “yes”, as is indeed apparent from the very wording of the Basic Law. It does not need the Court exercising its judicial review jurisdiction to say so.

F.  Result

33.The Applicant has no standing to bring this application. The Applicant has failed to comply with the necessary time limit within which to bring this application, and has not identified a good reason for an extension of time. The Applicant has failed to identify any public law ground of review which is reasonably arguable with any realistic prospect of success.

34.In the circumstances, the application for leave to apply for judicial review is dismissed. I make no order as to costs.

The applicant, acting in person