LEUNG WAI HOK v. SECRETARIAT ON CIVIL SERVICE DISCIPLINE

HCAL 36/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 36 OF 2017

___________________

___________________

___________________

D E C I S I O N

___________________

1.  This is an application for leave to apply for judicial review concerning the refusal of the Secretariat on Civil Service Discipline to disclose redacted parts of unused material and to adjourn a disciplinary hearing pending full disclosure.

2.  The applicant was the subject of a disciplinary inquiry under section 10 of the Public Service (Administration) Order which was fixed for hearing from 15 to 17 February 2017.  Following an inspection by counsel for the applicant of unused materials, a request was made to the Secretariat for disclosure of the redacted parts of the unused materials and to adjourn the disciplinary hearing pending the disclosure of unused materials. 

3.  By letter dated 18 January 2017, the Secretariat refused to disclose the redacted parts of the unused materials on the grounds that they were irrelevant to the disciplinary proceedings and/or subject to legal professional privilege, and further refused to adjourn the proceedings.  

4.  The applicant filed a notice for application for leave to apply for judicial review on 14 February 2017.  The applicant did not request an oral hearing if the Court was inclined to refuse the application on the papers. 

5.  The issue of disclosure and the question of adjourning the proceedings are procedural matters that can and should be dealt with by the inquiry body.  The matters do not display the essential quality of a reviewable decision, namely having substantive legal consequences or final binding legal effect.  In the circumstances, these are not matters that warrant the exercise of the judicial review jurisdiction. 

6.  It is well recognised that judicial review is an exceptional remedy that should only be employed in the most appropriate cases. Simply because decisions or actions emanate from a body performing public law duties or powers, is not enough to justify invoking the judicial review jurisdiction.  There must be a public law element with sufficient substance and importance to it to justify judicial review.  This was strongly expressed by the Court of Final Appeal back in 2003 in the decision of Financial Secretary v Wong (2003) 6 HKCFAR 476.  Bokhary PJ (as he then was) stressed that judicial review was not meant for micromanaging and that it should hardly ever be exercised to review decisions that went only to procedure rather than the end result.[1]  In a separate judgment, Litton NPJ also stressed that judicial review was the means by which judicial control of administrative action could be exercised and that not every decision by a decision maker was susceptible to review.  He explained that the essential quality of a reviewable decision was that it was a substantive determination.[2]  He quoted the comments of Mason CJ (as he then was) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 that:

“…the refusal by a decision-maker of an adjournment at an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.”

7.  More recently, Au J in Television Broadcasts Ltd v Communications Authority & Anor [2013] 5 HKC 593 laid emphasis on the special and exclusive nature of the judicial review jurisdiction.  He explained in some detail that save in exceptional circumstances, judicial review should only focus on the ultimate action or decision which had substantive legal consequences or final binding legal effect.[3]  He further explained that a court would adopt a strict approach in deciding whether or not to entertain a judicial review of intermediary or preparatory steps in the decision making process of the executive branch of government and of statutory bodies and tribunals.[4] He then set out six governing principles when a court may entertain challenges of intermediary or preparatory steps in a judicial review which essentially reflect that the jurisdiction would only be invoked in relation to substantive decisions or actions where there is an important public law issue.[5] 

8.  The application is therefore refused.