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CACV 97/2018
[2019] HKCA 343
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 97 OF 2018
(ON APPEAL FROM HCAL 502/2017)
_______________________
| BETWEEN |
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NG SHEK WAI |
Applicant |
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and |
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INDEPENDENT COMMISSION AGAINST CORRUPTION |
Putative Respondent |
_______________________
| Before: |
Hon Lam VP, Kwan and Au JJA in Court |
| Dates of Hearing: |
13 September 2018 and 14 February 2019 |
| Date of Judgment: |
26 March 2019 |
______________________
J U D G M E N T
______________________
Hon Lam VP (giving the Judgment of the Court):
1. On 9 August 2017, the applicant applied by Form 86 for leave to apply for judicial review in respect of two decisions of the putative respondent:
(a) a decision of 10 May 2017 refusing to commence criminal investigation on the applicant’s complaint; and
(b) a decision of 6 June 2017 refusing to explain the 10 May 2017 decision.
2. The application was heard by Zervos J [“the Judge”] on 15 February 2018. On 29 March 2018, the Judge refused to grant leave. The Judge addressed the grounds advanced by the applicant and held that the putative respondent acted in accordance with established procedures in obtaining and following the advice of the Secretary for Justice in declining to investigate further in respect of the complaint of the applicant. The Judge also held that the putative respondent did not refuse to explain the 10 May 2017 decision whilst it was the applicant who failed to take up the offer of the putative respondent to make further inquiry on the basis for that decision. Since judicial review is a last resort, the Judge refused to entertain his application when he had not exhausted the other avenue open to him.
3. By a notice of appeal, the applicant appealed against the decision of Zervos J.
4. At the first hearing of this appeal on 13 September 2018, as there are aspects of the case which were not clear from the documents placed before us by the applicant, we followed the practice recommended in Wong Ho Tong v Director of Lands [2018] HKCA 330 inviting initial response from the putative respondent and adjourned the appeal.
5. The putative respondent through the Department of Justice lodged initial response on 15 November 2018. After reading the initial response, the Court directed the putative respondent to file evidence on the Established Procedure and the Standing Order alluded to in the initial response.
6. Pursuant to that direction, a Senior Investigator of the putative respondent made an affirmation exhibiting the relevant documents on 28 December 2018. Parts of the documents were redacted in the exhibits.
7. The applicant wrote to the Court on 2 January 2019 objecting to the redactions. The Court gave direction on 7 January 2019 that as no leave had been granted for redaction of any document, the putative respondent should seek leave by summons if redaction is sought to be made.
8. On 17 January 2019, counsel for the putative respondent sought leave to file a second affirmation of the officer to exhibit the documents without any redaction. Leave was granted by the Court on 18 January 2019.
9. The second affirmation was filed accordingly.
10. In this connection, we accept the explanation of Ms Lai SC (appearing with Ms Parwani for the putative respondent) that the original redactions were made for operational reasons instead of any intention to conceal anything on the part of the putative respondent. We also agree that all the relevant provisions had been shown in the redacted version. There is no cogent basis to support the applicant’s allegation of concealment of evidence in this regard.
11. On 31 January 2019, the applicant lodged his skeleton arguments.
12. On 12 February 2019, Ms Lai lodged written response to the putative respondent’s skeleton arguments.
13. At the hearing of the appeal on 14 February 2019 the applicant submitted to us his written response to the arguments of Ms Lai. We reserved our judgment after hearing the parties on 14 February 2019.
14. We have read all the documents and the written submissions placed before us.
15. The applicant applied by a summons of 20 August 2018 seeking leave to rely on some new evidence:
“ (i) The Second Affidavit which provides a corrected version of the official transcripts.
(ii) The official transcripts as exhibit SWNG-2 attached to the Second Affidavit.
(iii) The Third Affidavit which explains the communication between the Applicant and the Putative Respondent before and after the decision of the lower court.
(iv) Letters between the Applicant and the Putative Respondent before and after the decision of the lower court as exhibit SWNG-3 attached to the Third Affidavit.”
16. There is no need to seek leave to refer to the official transcripts as it is not regarded as new evidence.
17. As regards the Second Affidavit of the applicant concerning the so-called corrections of the official transcript, we grant leave and we have considered the same.
18. The Third Affidavit of the applicant is different. In this affidavit, the applicant said he filed the same not to support his judicial review application but to defend his credibility against the “groundless speculations” of the Judge.
19. We cannot discern any part of the judgment ruling on the credibility of the applicant. As far as we can see, the Judge did not refuse to grant leave on the basis of lack of credibility on the part of the applicant.
20. In his written submissions of 31 January 2019, the applicant changed his mind and said he would apply to use the Third Affidavit to support his appeal. He said that there were factual inaccuracies in the initial response and he would refer to the evidence in the Third Affidavit to contradict the...
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