Case Detail

CACV 314/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2005

(ON APPEAL FROM HCAL NO. 56 OF 2005)

______________

BETWEEN

	KWAN PEARL SUN CHU	Applicant
	and
	DEPARTMENT OF JUSTICE	Respondent

______________

Before: Hon Tang VP and Yeung JA in Court

Date of Hearing: 10 November 2006

Date of Decision: 10 November 2006

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D E C I S I O N

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Hon Tang VP (giving the decision of the Court):

1. The applicant’s application for leave to apply for an order of mandamus was refused by Hartmann J on 21 September 2005.

2. Her appeal from that decision was refused by us on 30 May 2006. This is her application for leave to appeal to Court of Final Appeal.

3. The applicant has put forward three grounds in support of her application.

4. Before dealing with these grounds, it is relevant to repeat what we said in our judgment of 30 May 2006, namely that we dismissed the application on the merits. We said at the conclusion of para. 7 of our judgment:

“The application has no basis and is hopeless.” para. 7 of the judgment.

5. Turning to the three grounds, the 1^st ground relates to whether a decision of the Secretary for Justice not to prosecute is ever open to challenge by judicial review. We said in our judgment that it was not a point which will require decision because:

“… even if judicial review is available here as in England, this is not a case for leave.” para. 7 of the judgment.

6. That being the case, the point is academic so far as this application is concerned and leave would not be refused.

7. As for the 2^nd ground, this follows from the 1^st ground. There is no question of pre-empting the decision of Court of Final Appeal. The questions simply does not arise for decision, because as we have said:

“… even if judicial review is available here as in England, this is not a case for leave.” para. 7 of the judgment.

8. As for the 3^rd ground, which reads as follows:

“Pursuant to Article 38 of the Basic Law, the applicant’s right should be safeguarded by the laws of the HKSAR. This application, therefore, concerned the Basic Law issue, to be decided by Court of Final Appeal.”

9. But no Basic Law point is involved here. The application for judicial review has no basis and therefore, no question of Article 38 or any other of the provisions of Basic Law is relevant to this application.

10. Ms Vinci Lam, appearing for the Secretary for Justice, has referred us to the case of Hung Cheung-hang and Ors v The Director of Immigration, CACV 225/1998, unreported 5 May 1999, which followed the decision of House of Lords in In Re Poh [1983] 1 WLR 2, and held that there is no right of appeal from a decision of Court of Appeal refusing leave to apply for judicial review.

11. It is unnecessary for us to decide this point, because even if we have jurisdiction to grant leave, we would not do so for the reasons that we have given before.

12. But having regard to the decision of Court of Final Appeal, in Solicitor v Law Society of Hong Kong and Secretary for Justice (Intervener) [2003] 6 HKCFAR 570, we believe leave can be granted in a suitable case to appeal to Court of Final Appeal against the refusal of leave by Court of Appeal.

13. For the reasons that we have given above, this is not a case for leave.

14. For the above reasons, the application is dismissed with no order as to costs.

(Robert Tang)
Vice-President

(Wally Yeung)
Justice of Appeal

The Applicant, in person, present.

Ms Lam Wing Sai, Vinci, SGC, instructed by Department of Justice, for the Respondent.

CACV 314/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2005

(ON APPEAL FROM HCAL NO. 56 OF 2005)

______________

BETWEEN

	KWAN PEARL SUN CHU	Applicant
	and
	DEPARTMENT OF JUSTICE	Respondent

______________

Before: Hon Yeung and Tang JJA in Court

Dateof Hearing: 30 May 2006

Date of Judgment: 30 May 2006

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J U D G M E N T

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Hon Yeung JA:

1. I would dismiss this appeal for the reasons given by Tang JA.

Hon Tang JA:

2. The applicant has applied for an order of mandamus to compel the Department of Justice to reverse its decision and its advice to the police not to persecute one Wong Kwun-wai, in relation to the applicant’s allegation that Wong had assaulted her in the evening of 22 June 2004 in Hung Leng Village in the New Territories.

3. The applicant’s allegation is allegedly supported by a video recording of the event of that evening which has been produced as a DVD. We have watched the DVD and agreed with Hartmann J that its content does not provide any real support for her allegation.

4. The judge refused leave.

5. First on the basis that on the authority of Keung Siu Wah v Attorney General [1990] 2 HKLR 238, a decision of this court, which is binding on him, that the decision of the Department of Justice whether or not to prosecute is not amenable to judicial review.

6. Secondly, taking into account the development of the law since Keung Siu Wah, especially in England, that judicial review might be available if dishonesty, bad faith, or some other exceptional circumstance could be shown (see the case of R v Director of Public Prosecutions ex parte Kebeline (HL) [2000] 2 AC 326), the judge would also refuse leave because the applicant could not show that this application possessed any exceptional circumstance.

7. I agree with the decision of the judge. Whether Keung Siu Wah v Attorney General precludes judicial review in relation to the decision of the Department of Justice not to prosecute whatever the circumstances is an open question so far as the Court of Final Appeal is concerned and it may be that despite Young v Bristol Aeroplane Co Ltd [1944] KB 718 CA, the matter is open to review by this court. It is however unnecessary for me to express any definite view on the matter because I am of the view that even if judicial review is available here as in England, this is not a case for leave. The application has no basis and is hopeless.

8. Today, the applicant, through her consultant Mr Man, repeated her allegation of dishonesty against the police, in relation to the Department of Justice’s claim that they had her medical report when the decision not to prosecute was made. I do not believe I need to do any more than to repeat what the judge said in his judgment at paras. 11 and 12, which read:

“11. Mr Man has today, in very emotive terms, attempted to show that there has been some sort of collusion between the police and the Department of Justice, indeed that counsel in the Department of Justice have not been honest in saying that they had available to them all the evidence in coming to their decision. Mr Man has said that when the police file was considered by the Department of Justice, counsel would not have had the medical documents before them even though they have insisted that such documents were in the file. Mr Man has a formal typed report which bears a date after the decision of the Department of Justice not to prosecute. There appears to be a misunderstanding. Mr Saw has shown me a medical examination form typical of the type that is sent to the Department of Justice by the police when advice is sought. That form, he has said, was sent with the original police file. The form is handwritten, clearly a copy of the original form made out by the doctor at the hospital at or about the time the applicant was treated. It speaks for itself, making it clear that, on original examination at the Accident & Emergency Department, there were injuries to the right ankle showing tenderness, swelling and possible haematoma; that they were fresh, and that the allegation made by the applicant was that the injuries resulted from an assault. That handwritten form is no different from Mr Man’s later typed letter.

12. Suffice to say that I am satisfied there is nothing in the allegation made that counsel have lied in respect of medical evidence. It seems to me that the applicant and Mr Man have made their allegations out of desperation. While I appreciate their deep feelings, it seems to me that they have lost all objectivity.”

9. Mr Man has also attempted to show that there was a further misrepresentation before the judge and that there was confusion between the medical examination form and the medical report. However, he does not contend that the contents of two documents are different. I am convinced that there is nothing in this point.

10. It is obvious that the applicant feels very strongly about the matter, but strong feeling is not a substitute for evidence, so I would dismiss this appeal.

(Wally Yeung)
Justice of Appeal

(Robert Tang)
Justice of Appeal

The Applicant, in person.

Mr I Grenville Cross, SC, DPP, Mr D G Saw, SC, DDPP and Ms Lam Wing Sai, Vinci, SGC, instructed by Department of Justice, for the Respondent.

KWAN PEARL SUN CHU v. DEPARTMENT OF JUSTICE

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