Ng Shek Wai v Independent Commission Against Corruption
Court of Appeal
Civil Appeal No 97 of 2018
Lam V-P, Kwan and Au JJA
13 September 2018, 14 February, 26 March 2019

Administrative law — Independent Commission Against Corruption — decisions refusing criminal investigation of complaint and explanation for decision — refusal to grant leave to apply for judicial review of decisions — approach on appeal — whether error in law

Civil procedure — appeal against refusal of leave to apply for judicial review — reiteration of role of Court of Appeal

X applied for leave to apply for judicial review of two decisions of the Independent Commission Against Corruption (ICAC) respectively declining to commence a criminal investigation of his complaint (the “Decision”) and to explain why (the “Further Decision”). The Judge refused leave, holding that the ICAC acted in accordance with established procedures and did not decline to explain the Decision; rather, it was X who failed to take up the ICAC’s offer to follow up on the basis for that decision; judicial review was a last resort which was not available to X as he had failed to exhaust the other avenue open to him. X appealed, arguing inter alia that the Decision was Wednesbury unreasonable because it was made without certain documents he had withheld from the ICAC (the “Documents”).

Held, dismissing the appeal, that:

1) It was necessary to reiterate firmly the role of the Court of Appeal in hearing an appeal against the refusal of leave to apply for judicial review. It was not the occasion for regurgitating arguments advanced and rejected by the judge. The focus was his decision, which would only be reversed if it was shown that he erred in law or failed to take account of relevant matters already raised or was otherwise plainly wrong. Further, the Court would not generally entertain new arguments which were fact-and-evidence sensitive and for which leave had not been sought within time or amended grounds (Re Shrestha Santosh Kumar (CACV 194/2018, [2018] HKEC 2557), United Muslim Association of Hong Kong v Yusuf Yu [2018] 4 HKLRD 22, Daljit Singh (CACV 294/2017, [2018] HKEC 1465), Re Qadir Sher (CACV 242/2017, [2018] HKEC 639), Wong Ho Tong v Director of Lands (CACV 40/2017, [2018] HKEC 1473) applied). (See paras. 21–22.)

2) There was no error in the Judge’s analysis on X’s grounds of appeal. His decision was not tainted by a consideration of irrelevant issues, a misconception of facts, neglect of relevant evidence, speculation or Wednesbury unreasonableness as alleged. As the Judge noted, it was X who withheld the Documents. No new points would be entertained on appeal. (See paras. 26–33.)

3) More fundamentally, the application for judicial review was wholly unnecessary. Following the Decision, the proper course was for X to furnish the ICAC with the Documents and, in light of the same, to request that the matter be referred to the Secretary for Justice (黄容治及立法會秘書處 (CACV 169/2015, [2016] CHKEC 1229), (Re 關媛薇 (CACV 143/2014, [2018] CHKEC 384) applied). (See paras. 33, 35.)

Appeal

This was an appeal against the judgment of Zervos J dismissing an application for leave to apply for judicial review of two decisions of the putative respondent (see [2018] HKEC 813). The facts are set out in the judgment.

Jurisdictions: 

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