蘇書幼 v. 律政司 AND ANOTHER

HCAL 2193/2023

[2024] HKCFI 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2193 OF 2023

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D E C I S I O N

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A.  Introduction

1.  In an earlier application for leave to apply for judicial review made in HCAL 150/2023 on 2 February 2023, the Applicant raised complaints arising from a District Court personal injury case – namely DCPI 617/2022 (“PI Action”) – in which the Applicant was plaintiff, and the intended challenge was against an Order made striking out her claim and the PI Action (“Strike-Out Order”).

2.  In my Decision dated 8 March 2023 [2023] HKCFI 682, I set out the relevant background to the PI Action, and how the claim and PI Action came to be struck out. I need not repeat that background here, but I incorporate it by reference. I held that the intended challenge was to a decision – i.e. the Strike-Out Order – which was not amenable to judicial review, and that any appropriate remedy would lie in an appeal, which it seemed the Applicant had in any event sought to bring.

3.  I also noted an allegation made by the Applicant of “improper conduct” between the Correctional Services Department (“CSD”) and/or Department of Justice (“DOJ”) and the clerk to the Master who made the Strike-Out Order, where the Applicant said she saw CSD/DOJ handed to the clerk a folded paper which she thought to be a cheque. She also alleged that the clerk adopted a somewhat different attitude to her when compared with CSD/DOJ. I held that allegation was not about an administrative decision or action which could properly form a target to be impugned by way of judicial review.

4.  Hence, I dismissed the application for leave to apply for judicial review.

5.  By her Form 86 now filed in these proceedings on 7 December 2023, the Applicant effectively seeks to re-tread much of the same ground – though she says otherwise.

6.  The Applicant requested an oral hearing, which I fixed for 7 March 2024. At the beginning of the hearing, the Applicant complained that neither of the putative respondents had attended. But I explained that the application had been made by her, as is typical for applications for leave to apply for judicial review, on an ex parte basis. There was no obligation upon the putative respondents to attend the hearing, and I had not invited nor required them to do so.

7.  Having heard the application, I reserved my decision to be handed down later. This is my Decision.

B.  The Intended Challenge

8.  The Applicant has named the DOJ Office of the Secretary for Justice (“SJ”) and the CSD as the putative respondents to this application.

9.  The basis of the application is that the Civil Litigation Unit of the DOJ, headed by the SJ, was involved in an act or acts “amounting to serious breach of discipline, serious breach of law and serious perversion of the course of justice”. The particular act or acts are the same matter raised by the Applicant in her previous application, namely the suggestion that the CSD as defendant to the PI Action (and the DOJ acting for the CSD) bribed the clerk to the Master during the course of the hearing which led to the striking out of the PI Action by the Strike-Out Order.

10.  In passing, I think it fair to note that the allegation seems to have been made more firmly or definitely than before, in that whilst previously she stated she thought there had been a cheque passed in the folded paper, she now says that there definitely was bribery which she saw.

11.  I would also point out that her firm view that there was bribery appears to be significantly influenced by her belief, which she told me at the oral hearing, that she had “originally won” the PI Action, but that the decision was changed at the hearing which led to the Strike-Out Order, during which hearing she says she saw the bribery take place. In that regard, the Applicant is simply mistaken that she originally won the PI Action. She did not. No judgment was entered in her favour. The date when the Applicant says she “originally won” the case, 16 May 2022, which simply the date when a Master gave directions for a case management conference on 25 July 2022. Instead, she sought judgment in default of the filing of a defence to the action within the original time for filing, but (as is not unusual) the time for the filing of the defence was extended pending determination of the strike out application.

12.  The Applicant’s statement of facts and supporting affirmation rehearses and reproduces much of the material put forward by her in her first application, related to the underlying PI Action. However, there is also some new and updating of information, in relation to matters which arose after the making of the earlier judicial review application and/or the date of my previous Decision on that application.

13.  The Applicant says that she made an application for leave to appeal out of time from the Strike-Out Order, which was heard by Deputy District Judge Laurence Yip on 28 April 2023. The application was refused, and the Applicant suggests that the Deputy Judge deliberately concealed the facts, the verified facts of the case, and the truth of the original PI Action.

14.  Hence, she applied on 2 June 2023 for leave to appeal to the Court of Appeal (“CA”). That application was heard by the Deputy Judge on 1 August 2023, but was also refused. The Applicant says she has lodged a complaint against the Deputy Judge to the Secretariat for Complaints against Judicial Conduct. At the oral hearing, the Applicant said that she had made a further application to the CA in CAMP 285/2023. There is a letter in the materials provided by the Applicant stating that the Complaints Office would withhold conducting investigation into the matter of her judicial complaint until after conclusion of the CAMP 285/2023.

15.  Also at the hearing, the Applicant sought to draw attention away from that litigation and appellate process, and suggested that the core of the subject-matter of these proceedings is in relation to the SJ’s failure to respond to complaints made by her to him.

16.  The Applicant says that on two occasions – 3 February 2023 and 20 April 2023 – she lodged a complaint to the SJ that the DOJ was engaged in acts amounting to a serious breach of discipline, serious breach of law and serious perversion of the course of justice. The particular acts of which she complained are those relating to the allegation of bribery. But, in the exhibits to her affirmation, the letters themselves – both hand written on lined paper – do not appear to make clear the complaint:

(1)  The letter dated 3 February 2023 simply says (in English translation):

In view of the grave seriousness of the matter, the Secretary for Justice has an unshakeable responsibility and a duty to know the truth. I now request the Secretary for Justice to take a close look at the seriousness of the matter (and) handle it with severe punishment.

(2)  The letter dated 20 April 2023, though headed DCPI 617/2022, simply says (in English translation):

I now request the Honourable Paul Lam Ting-kwok, Secretary for Justice, to respond to my complaint directly. Besides, I am aware that the Secretary for Justice was a deputy judge before (and so) my complaint will definitely be handled impartially. Furthermore, a person without real competence “is a disaster to both Hong Kong and the Department of Justice”. The behaviour of a person using underhand triad tactics “against an ordinary Hong Kong citizen” is a disgrace to the Department of Justice.

(3)  Though the second letter has a reference to their being 24 pages in total, it is not entirely clear what those pages comprised. They may well have comprised some of the materials in the PI Action where the Applicant was making allegations of bribery as regards the circumstances leading to the Strike-Out Order.

17.  The Applicant says she has not received a response to the complaints, notwithstanding the passage of by now more than one year since the first complaint was made. She suggests that each and every one of the instances mentioned by her in her affirmation is sufficient to prove that the CSD was guilty of engaging in those acts, so that it should be brought to court for handling. Hence these proceedings.

18.  In a further affirmation dated 4 March 2024, the Applicant stated that she sought judgment against the defendants (meaning the putative respondents), because the issues in the case are of great general importance, concerning all Hong Kong citizens and the spirit of the rule of law in Hong Kong. The Applicant stated (more or less in her words, as translated) that:

(1)  the act of bribing the clerk to the Master during the hearing in the PI Action is a very serious offence;

(2)  an unlearned and incapable person, to the SJ, is a disaster; and

(3)  a person treated an ordinary Hong Kong citizen as third-rate triad gangsters would, and that act is a malignant tumour of the Hong Kong government.

19.  Hence the request for judgment, and the imposition of a severe punishment upholding impartiality and fairness of the Judiciary.

20.  In my summary of her oral submissions, the Applicant stated that:

(1)  this case is not about the appeal;

(2)  she has a duty to uphold the rule of law in Hong Kong (a submission repeated on many occasions);

(3)  the SJ’s failure to respond to her complaints is proof that the DOJ has allowed a member of its staff to trample on the rule of law in Hong Kong;

(4)  this application is necessary to prevent any repeat of circumstances where a court official is bribed or some similar improper conduct occurs;

(5)  the case is not limited to her own circumstances, but is of wider and public interest for everybody in Hong Kong;

(6)  the facts of this case show that the Applicant had originally won the PI Action, but then on 25 July 2023 the DOJ bribed the clerk to the Master, and her claim was later struck out;

(7)  she has raised the allegations of bribery in her attempt to take the Strike-Out Order on appeal;

(8)  she has also raised the allegations of bribery in her judicial conduct complaint;

(9)  the case is similar to the Amoy Garden bodiless case – because if she witnessed a murder, and there was CCTV of the murder, the police could not say there was no murder simply because they had not found a body;

(10)  she saw the bribery with her own eyes so it is impossible to say that it did not occur;

(11)  the Court has the obligation to uphold the rule of law in Hong Kong;

(12)  the Court should give judgment now, and should impose a severe punishment on the respondents as a deterrent to future similar behaviour.

C.  No Merit in Application

21.  There is no merit in the Applicant’s complaints, which are again not properly the subject of judicial review.

22.  First, complaints arising out of orders and decisions in the PI Action would fall to be dealt with by way of appeal, if appropriate. Indeed, that route has already been taken by the Applicant, though she is dissatisfied with the results so far. There is no reason why the Applicant could not have raised, as part of her intended appellate steps, her allegations relating to how she says the Strike-Out Order came to have been made. Indeed, as the Applicant confirmed an answer to my questions, she has actually done so.

23.  If any Court engaged in the potential appellate process on the Applicant’s own applications were to see any merit in the allegations of bribery, they would be taken into account – and might even give rise to reference to the Director of Public Prosecutions. But it is trite that merely making allegations – perhaps particularly serious allegations – does not mean that they are necessarily true or accurate (not least where they appear, as here, to be substantially founded on a misunderstanding of what occurred in the underlying PI Action procedure).

24.  Once again, the fact that the Applicant has sought to appeal – albeit out of time, and apparently so far unsuccessfully – also shows that there was an available alternative remedy, which is a further reason why any challenge by way of intended judicial review is inappropriate.

25.  There is also the fact that much of the real subject-matter giving rise to the complaints was raised by the Applicant in the previous proceedings, and dealt with by me in my Decision dismissing that application. It is not open to the Applicant simply to attempt to raise again in fresh proceedings the same underlying complaints already dealt with in earlier proceedings. The Applicant’s suggestion that the present proceedings are very different from the previous proceedings, because the focus now is on the complaints made to the SJ, overlooks the point that all of the matters of complaint ultimately stem from the allegations of bribery.

26.  Put another way, whilst judicial review is often said to be a remedy of last resort, that does not mean a litigant who has failed through the litigation process – including exhausting alternative remedies of a possible appeal – can then simply turn to judicial review to seek a remedy. Repeated judicial review attempts covering essentially the same ground are also an abuse.

27.  As to the complaints made to the SJ, no public law error or ground has been identified by the Applicant for the grant of leave to apply for judicial review simply from the fact that the SJ is apparently yet to respond to the complaints – or, to use the Applicant’s words, has failed to give a “head-on response”. I acknowledge – assuming for the moment that there has in fact been no response from the SJ – that it might have been preferable for the SJ to have provided some response to the complaints by now. But the fact that there has been no response does not necessarily mean there has been total inaction, and it certainly does not give rise to the inference (invited by the Applicant) that the SJ or DOJ has decided to allow a staff member to misconduct him- or herself in the course of litigation.

28.  Further, the Applicant is clearly aware of the potential way to complain about judicial conduct, or procedural circumstances – both in the context of raising relevant matters by way of the intended appeal process, as well as in the context of a complaint to the Secretariat for Complaints against Judicial Conduct. As I have also already stated in my previous Decision, the Applicant’s allegation is mainly not about an administrative decision or action which could properly form the target to be impugned by way of judicial review. In so far as the current complaint is said to focus upon the SJ’s failure to respond to her complaints made to him, I have already pointed out that no public law grounds of review have been identified.

29.  Lastly, in a letter to the Court dated 23 February 2024 and in her oral submissions, the Applicant has sought to draw some assistance for her application by an analogy with what she calls the “Amoy Garden (bodiless case), date of offence 6 October 2011”. With respect, I see no assistance for present purposes in any such analogy.

D.  Conclusion

30.  The Applicant has failed to raise any matter properly the subject of judicial review. There is no arguable public law ground of challenge with any reasonable prospect of success.

31.  I dismiss the application, with no order as to costs.

32.  I would add that the Court is obviously alive to the duties and importance of upholding the rule of law in Hong Kong. However, it seems to me that the appellate process available to, and being exercised by, the Applicant as well as the judicial conduct complaints process are both capable of ensuring that the particular complaint raised by the Applicant is dealt with so as to maintain the fairness and the rule of law. There are probably also other routes available, which would not require or justify judicial review proceedings.