Kwan Pearl Sun Chu v Department Of Justice

Judgment Date21 September 2005
Judgement NumberHCAL56/2005
Subject MatterConstitutional and Administrative Law Proceedings
CourtHigh Court (Hong Kong)

HCAL 56/2005





NO. 56 OF 2005





Before : Hon Hartmann J in Court

Date of Hearing : 21 September 2005

Date of Ruling : 21 September 2005




1. I have before me an application for leave to apply for judicial review. The applicant appears in person although she has been assisted by a colleague, Mr Raymond Man. The applicant complains that she has been the victim of an assault. She says that this assault took place on the evening of 22 June 2004 in a village called Hung Leng Village in the New Territories. On that occasion she received a minor injury to her ankle. She complains that, although the police investigated the matter and their findings were referred to the Department of Justice, the Department declined to institute criminal proceedings against the person who the applicant asserts assaulted her, that person being Mr Wong Kun-wai. She seeks a judicial review of that decision; an order, that is, to quash that decision.

2. I declined to grant leave on the papers. I wished to know more about the factual background to the complaint and, more importantly, was concerned that this court had no jurisdiction to judicially review the exercise of discretion of the Director of Public Prosecutions in respect of instituting prosecutions. I therefore directed that there be an oral hearing. That hearing took place on 8 July 2005.

3. I think it is fair to say that impassioned representations were made to me by the applicant and Mr Man, the unspoken thrust of those representations being to the effect that the police and/or members of the Department of Justice had not only been guilty of negligence but perhaps of bad faith too.

4. In the circumstances, I felt that I could not simply dismiss the application for leave and that the matter should be adjourned so that assistance could be obtained from the Department of Justice. The matter was therefore adjourned to Friday, 22 July 2005.

5. It appears that both the applicant and Mr Man were assaulted on an occasion after 22 June 2004, on this occasion suffering fairly bad injuries. One of the reasons why I adjourned the matter was because it was asserted by the applicant that the second assault – although I was a little confused as to the sequence at the time – was brought about by either Mr Wong again or at Mr Wong’s instigation. Unfortunately, in respect of this second assault, if I understand it correctly, none of the assailants could be identified.

6. My clerk wrote to the Department of Justice, recording my observations. It is necessary, I think, if only to explain the full background, that my observations be repeated in this ruling :

(i) This application concerns what, on its face, appears to be a violent dispute in a village in the New Territories, the dispute focusing on development rights. It appears that the applicant and an associate have both received physical injury as a result of the dispute, both the applicant and the associate, Mr Man Sek-ong, being so badly injured that they required hospitialisation.
(ii) The matter has been referred to the Department of Justice by the police in respect of possible prosecution.
(iii) On the material before me, it appears that the applicant and Mr Man Sek-ong have made extensive representations to the Department of Justice to the effect that a certain person (or certain persons) should be prosecuted. These representations have been accompanied by evidential material. Several letters have been addressed to the applicant and Mr Man by Mr Thomas Law, SADPP, the last letter, dated 12 March 2005, stating that, despite the representations, no prosecution would take place as there was no reasonable prospect of securing a conviction. The applicant herself however appears to have been the subject of the prosecution.
(iv) The applicant has asserted not simply that Mr Thomas Law (and those who assist him) has exercised his discretion wrongly but appears to have suggested that there has been a failure utterly to consider the material placed before him or to consider it in a way which falls within the parameters of his discretion, this failure amounting in essence to a dereliction of duty.
(v) I am in no position to comment on these serious allegations and my observations are not to be taken to mean that I necessarily give them credence. However, having regard to all the material placed before me and the representations so strongly made, I believe it is best that this application for leave should be adjourned so that, if the Director of Public Prosecutions deems it necessary, I may receive some assistance at the adjourned hearing.
(vi) It is my understanding that the Director of Public Prosecutions occupies a unique constitutional position and that, in the exercise of his powers, he is not, in broad principal, subject to the control and supervision of the courts. I have made this clear to the applicant. She is aware that she faces a most difficult task. However, recent authorities suggest that there may be occasions when the courts will take the unusual step of assuming supervisory jurisdiction. In this regard, for example, see R. v. Attorney –General, ex p Rockhall [2000] 1 WLR 882 and also in Re Jordan [2003] NIQB

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