TSANG KIN SHING v. SECRETARY FOR JUSTICE

TSANG KIN SHING v. SECRETARY FOR JUSTICE

This was a case management decision: while the court is more ready to order rolled-up hearings in appropriate cases to promote procedural economy, the complexity and need to determine preliminary issues (jurisdiction/amenability under Article 63, standing, exhaustion of alternative remedies and arguability) meant a preliminary oral hearing on leave should be held first; accordingly the court varied the earlier direction and split the rolled-up hearing so that the leave application in HCAL 687/2019 (Tsang JR) be heard first.

Citation
[2019] HKCFI 900
Parties
Applicant (hcal 2882/2018): Kwok Cheuk Kin; Applicant (hcal 687/2019): Tsang Kin Shing; Putative Respondent / Putative Interested Party: Secretary for Justice; Putative Respondent (named in Form 86 in HCAL 2882/2018): Director of Public Prosecutions
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
3 April 2019
Case Number
HCAL687/2019
Procedural Posture
Judicial Review (application for Leave to Apply for Judicial Review) / Preliminary/directions Hearing to Determine Leave; Decision to Split Rolled Up Hearing and Hear Leave First
Outcome
Court varied the earlier directions of 13 March 2019: the rolled-up hearing was split and an oral hearing of the leave application will be held first in HCAL 687/2019 (Tsang JR); further directions to be given for expeditious conduct of both leave applications.
Legal Topics
Prosecutorial Discretion (article 63 Basic Law), Judicial Review, Leave to Apply for Judicial Review, Case Management and Rolled Up Hearings, Abuse of Process, Standing, Exhaustion of Alternative Remedies
Source Language
EN
Constitutional Law Administrative Law Criminal Law Civil Procedure Prosecutorial Discretion (article 63 Basic Law) Judicial Review Leave to Apply for Judicial Review Case Management and Rolled Up Hearings +3 more

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Parties

Kwok Cheuk Kin

Applicant (hcal 2882/2018)

Tsang Kin Shing

Applicant (hcal 687/2019)

Secretary for Justice

Putative Respondent / Putative Interested Party

Director of Public Prosecutions

Putative Respondent (named in Form 86 in HCAL 2882/2018)

Procedural Posture

Judicial Review (application for Leave to Apply for Judicial Review) / Preliminary/directions Hearing to Determine Leave; Decision to Split Rolled Up Hearing and Hear Leave First

Legal Issues

  1. 1 Whether a rolled-up hearing (leave and substantive merits together) was appropriate
  2. 2 Whether the court has jurisdiction to review prosecutorial decisions under Article 63 Basic Law and in what circumstances
  3. 3 Whether the Secretary for Justice should be required to adduce substantive evidence in a rolled-up hearing

Ratio Decidendi

This was a case management decision: while the court is more ready to order rolled-up hearings in appropriate cases to promote procedural economy, the complexity and need to determine preliminary issues (jurisdiction/amenability under Article 63, standing, exhaustion of alternative remedies and arguability) meant a preliminary oral hearing on leave should be held first; accordingly the court varied the earlier direction and split the rolled-up hearing so that the leave application in HCAL 687/2019 (Tsang JR) be heard first.

Court Disposition

Court varied the earlier directions of 13 March 2019: the rolled-up hearing was split and an oral hearing of the leave application will be held first in HCAL 687/2019 (Tsang JR); further directions to be given for expeditious conduct of both leave applications.

Orders

  • Vary directions dated 13 March 2019: split the rolled-up hearing and order an oral hearing of the leave application first in HCAL 687/2019 (Tsang JR)
  • Proceed to give directions for further conduct of HCAL 2882/2018 and HCAL 687/2019 to resolve preliminary issues expeditiously