Hui Chi Fung v Secretary for Justice

[2021] 2 HKLRD 956, [2021] HKCFI 1208
Alex Lee J
12 March, 7 May 2021

Facts

X sought leave to apply for judicial review against two decisions by the Secretary for Justice (the SJ) to withdraw two private prosecutions taken out by X (the Decisions). The private summons were against the first and second putative interested parties (IP-1 and IP-2) respectively and pertained to two incidents which occurred during the social unrest in late 2019. The first incident concerned the shooting of a masked male by IP-1, a traffic police officer on duty. The second incident was about the mode of driving of IP-2, a taxi driver, in an area occupied by a group of protestors. X was not physically involved in either of the incidents and admitted to having no private interest in the prosecutions. He contended that the SJ’s Decisions were illegal, Wednesbury unreasonable and unconstitutional. After a rolled-up hearing date was fixed, the Court became aware that X, who was a defendant in unrelated criminal proceedings, had breached his bail terms and absconded from the jurisdiction and that a warrant of arrest had been issued against him. There was information which suggested that X, who was then a Legislative Councillor, might have provided misleading information to the Court when he applied for permission to leave Hong Kong to conduct a duty visit and then failed to return as promised. X had also failed to appear at the hearing of his magistracy appeal against conviction, which resulted in that appeal being dismissed. In light of these circumstances, the Court sought assistance from the parties on the preliminary issue of whether it should hear X’s proposed judicial review at all.

Held, dismissing the application for leave to apply for judicial review, that:

  1. In determining whether an applicant had the requisite standing to bring judicial review proceedings, the court must assess whether in the particular context, the preservation of the rule of law required standing be given to the applicant to ventilate the issues raised in the application in light of the interest he had. The fact that it was X’s private prosecutions that were intervened in and withdrawn by the SJ gave him standing for the leave application (R v Secretary of State for Foreign and Commonwealth Affairs [1995] 1 WLR 386, R (Feakins) v Secretary of State for Environment, Food and Rural Affairs [2004] 1 WLR 1761, Re Wong Chi Kin (CACV 80/2014, [2014] HKEC 1590), Kwok Cheuk Kin v President of Legislative Council [2021] 1 HKLRD 1247 applied).
  2. For the present purpose it was not necessary to decide whether “fugitive disentitlement” as a doctrine or general rule formed part of the common law in Hong Kong. Proceeding on the basis that it did not, X’s application was not about the protection of any his substantial legal rights or “equality of arms” but the legality or rationality of the Decisions. X did not have the right to judicial review and even if he was successful, the Court still retained the discretion not to award any remedies (Polanski v Conde Nast Publications Ltd [2005] 1 WLR 637 distinguished).
  3. In exercising its discretion in judicial review proceedings, the court should give due weight to the following factors: (i) the leave requirement served as an important filter to keep judicial review within its proper bounds and to prevent abuse of the court’s process; (ii) the protection of the rule of law in judicial review proceedings did not require every allegation of unlawful conduct by a public authority to be examined by a court; and (iii) the court had inherent jurisdiction to prevent any abuse of its process and the administration of justice could not be doubted. If the granting of leave would amount to an abuse or bring the administration of justice into dispute, that would afford a valid reason to refuse leave. That was a fact-sensitive issue (AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 applied).
  4. Granting X leave would be an affront to the public conscience and would bring the administration of justice into disrepute because: (i) the Court had cogent reasons to believe that X was involved in a plan to mislead the court and the police into believing he was leaving Hong Kong temporarily when he in fact intended not to face his trial(s); (ii) X was aware that he was in breach of bail condition (as the duty visit was bogus) and he made a conscious decision to flee the jurisdiction; (iii) X’s plan to do so was conceived even before he presented his Form 86; and (iv) X’s conduct amounted to criminal contempt and showed that he had no regard at all for the dignity and authority of the court and the administration of justice (AXA General Insurance Ltd v HM Advocate [2012] 1 AC 868 applied).
  5. The refusal of leave to X did not adversely affect the legitimate interests of other parties because: (i) the SJ had simply withdrawn the two private summonses instead of offering no evidence against IP-1 and IP-2, and therefore it was highly arguable that the plea of autrefois acquit was not applicable to them; (ii) there was nothing to suggest that X’s application was supported by any of the protestors concerned; and (iii) the refusal of leave would not bar any civil claims which may be brought against IP-1 and IP-2.

Application

This was an application for leave to apply for judicial review against two decisions of the Secretary for Justice to withdraw two sets of criminal proceedings taken out by the applicant in the Magistrates’ Court as private summons.

Jurisdictions