On 6 September 2019, the Court of First Instance handed down its decision in Kwok Cheuk Kin v. 律政刑事檢控專員梁卓 [2019] HKCFI 2215, on whether decisions not to prosecute for criminal offence(s) are amenable to judicial review.  The Hon Chow J held that prosecutorial decisions are amenable to judicial review, however, the subject applications for leave to apply for judicial review were dismissed on the ground the the necessary thresholds have not been met.

The applicants’ challenge arose from the Secretary for Justice’s decision not to prosecute the former Chief Executive of the HKSAR, Mr. Leung Chun Ying, following the “UGL Incident”.

Under Article 63 of the Basic Law, the Department of Justice shall control criminal prosecutions free from any interference.

The Court followed previous Court of Appeal decisions.  Thus, as the law currently stands, it is only where a prosecutorial decision can properly be said to be unconstitutional that the Court may interfere with the decision.  To reach the high threshold of unconstitutionality, it is insufficient to establish mere orthodox or conventional grounds of judicial review.  The Court left open the possibility of further development of the law with reference of overseas jurisdictions to the Court of Final Appeal and the Court of Appeal in the future.  (§39)

Ernest CY Ng with Ivy Ho acted for one of the Applicants, instructed by Kenneth Lam Solicitors.

The full judgment is available here.