鄭奇賢女士 v. 香港房屋委員會

HCAL 2147/2023

[2023] HKCFI 3270

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2147 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By her Form 86 dated 30 November 2023, the Applicant seeks leave to apply for judicial review to challenge a decision or decisions made in District Court proceedings DCCJ 2508/2022, in which the Applicant was plaintiff and the Hong Kong Housing Authority was defendant.

2.  In the Form 86 and her supporting affirmation, the Applicant explained that:

(1)  she seeks judicial review against the decision dated 30 August 2023 made in DCCJ 2508/2022;

(2)  she applies for judicial review to seek justice, because she was not wrong and she was wronged;

(3)  she has the right to institute legal proceedings which should not be removed;

(4)  she has been applying for a public housing unit since September 2007, but has been treated unfairly due to the procedural errors and negligence of the related personnel of the Housing Department.

3.  Appendix 1 to her affirmation comprises a Decision and an Order both dated 30 August 2023 made in DCCJ 2508/2022, and a letter from the defendant’s solicitors dated 27 October 2023 requesting the Applicant to pay the defendant’s taxed costs of HK$42,635.

4.  Both the Decision and the Order of 30 August 2023 relate to the decision and order made by a Master of the District Court striking out the plaintiff’s (i.e. the Applicant’s) statement of claim in that action, on the ground that it discloses no reasonable cause of action, and is frivolous, vexatious and an abuse of the judicial process. There were also orders to dismiss the plaintiff’s summons seeking to amend the writ of summons in the action, and the order that the plaintiff should pay the defendant’s costs summarily assessed by the Court at HK$42,635.

B.  Application is Misconceived

5.  The Form 86 also makes reference to Articles 25, 35 and 38 of the Basic Law (“BL25”, “BL35” and “BL38” respectively):

(1)  BL25 relates to Hong Kong residents being equal before the law.

(2)  BL35 relates to Hong Kong residents having, amongst other things, access to the courts and to judicial remedies, as well as the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.

(3)  BL38 relates to Hong Kong residents enjoying the other rights and freedoms safeguarded by the laws of the Hong Kong Special Administrative Region.

6.  However, none of those provisions assist the Applicant in the context of the present application.

7.  The Applicant has exercised her right to institute legal proceedings against the Hong Kong Housing Authority in her claim made in DCCJ 2508/2022. That her claim has been struck out in accordance with the rules of court does not mean that she has been denied equality before the law or denied any other rights and freedoms safeguarded by the laws of the HKSAR.

8.  Quite simply, the Court in its judicial review jurisdiction does not act as an appellate court from decisions made in the District Court. If the Master’s Decision and Order made in DCCJ 2508/2022 properly open to criticism and challenge, that would have to be by way of the appeal process provided for under the rules of court. The Decision and Order are not amenable to judicial review, and indeed the fact that there is an alternative remedy also precludes the route of seeking to challenge them by judicial review.

9.  Nor has the Applicant even attempted to identify any public law errors which led to the Decision and Order of the Master. This is also fatal.

C.  Result

10.  The Applicant has not identified any reasonably arguable intended grounds of judicial review with any realistic prospect of success.

11.  Indeed, with respect, and as I have already said, the application is fundamentally misconceived.

12.  In those circumstances, the Applicant’s application for leave to apply for judicial review is dismissed, with no order as to costs.