Tsang Kin Chiu v Commissioner of Police
Court of First Instance
Constitutional and Administrative Law List No. 141 of 2014
Thomas Au J
Administrative Law
13 July 2015

Commissioner of Police – refusal to disclose identities of police officers who allegedly assaulted applicant – whether jurisdiction to compel such disclosure to applicant

X alleged that he was assaulted by police officers, who were subsequently suspended and arrested, but not charged (the “Officers”). The Commissioner of Police declined X’s request for the Officers’ identities so he could commence a private prosecution against them. X applied for leave to apply for judicial review seeking inter alia a declaration that the assaults violated the constitutional prohibition on torture and also damages, including aggravated and exemplary damages (“Grounds 1–2”); and an order of mandamus to compel the Commissioner to reveal the Officers’ identities. X argued that he had a right to seek such disclosure and the police were obliged to supply victims of crime with their assailants’ identities so that the failure to do so amounted to an obstruction of the administration of justice (“Ground 4”).

Held, refusing leave on Grounds 1–2, but granting leave on Ground 4, that:

  • X’s primary claim under Grounds 1–2 was for damages. A private law writ action could achieve the same and was also more appropriate, since X’s claim for exemplary damages was likely to involve the determination of factual disputes, for which judicial review was unsuitable.
  • X therefore had an effective alternative remedy which had not been exhausted. The fact that the claim for damages was based on an alleged breach of public duty by public officials did not constitute exceptional circumstances so as to justify the grant of leave.
  • It was reasonably arguable as to whether there was a legal basis for the Court to order the Commissioner to reveal the Officers’ identities. Given the parties’ contentions, including on the Court’s jurisdiction and exercise of discretion, the determination of X’s mandamus application should only be properly made at a substantive hearing with fuller arguments and evidence.

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