莊裕安 v. 終審法院司法常務官

HCAL 1699/2018 &
HCAL 25/2019
[2019] HKCFI 1073

HCAL 1699/2018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1699 OF 2018

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AND

HCAL 25/2019

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 25 OF 2019

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(Heard together)

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D E C I S I O N

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INTRODUCTION

1.  There are 4 applications by the Applicant before the court:

HCAL 1699/2018

(1)  an application for leave to apply for judicial review of the procedure adopted by the Registrar of the Court of Final Appeal (“the Registrar”) relating to the issue of summonses under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A (“the CFA Rules”);

(2)  an application by summons dated 24 September 2018 seeking an order that this case should not be dealt with by the Hon Fung J or by this court, but should be assigned to an English speaking foreign judge;

HCAL 25/2019

(3)  an application for judicial review of (i) the procedure adopted by Registrar relating to the issue of a summons under Rule 7 to the Applicant on 7 December 2018, and (ii) the Court of Final Appeal’s letter dated 27 December 2018 in reply to the Applicant’s letters to the Court of Final Appeal dated 14, 19 and 24 December 2018 respectively; and

(4)  an application by summons dated 14 January 2019 seeking an order that this case should not be dealt with by the Hon Fung J or by this court, but should be assigned to an English speaking foreign judge.

HCAL 1699/2018

2.  In each of the Applicant’s previous applications for leave to appeal in FAMV 3, 4, 12, 28 and 38/2016, the Registrar, on the basis that he was of the opinion that the application disclosed no reasonable grounds for leave to appeal, issued a Rule 7 summons on 13 January 2016, 13 January 2016, 19 February 2016, 7 June 2016 and 31 August 2016 respectively calling upon the Applicant to show cause before the Appeal Committee why his application for leave to appeal should not be dismissed.

3.  By 5 separate orders all dated 18 August 2016, the Appeal Committee dismissed the 5 applications, in each instance on the ground that the application disclosed no reasonable grounds for leave to appeal.

4.  In his Form 86 dated 21 August 2018, the Applicant complains that the Registrar did not give any reasons for issuing the Rule 7 summonses, and contends that the Registrar was under a duty to so.

5.  In my view, the intended application for judicial review is not reasonably unarguable, for the following reasons. First, in a recent judgment of the Court of Appeal in 鄧淑珍 v 終審法院司法常務官, CACV 579/2018, [2019] HKCA 413, at paragraph 17, the Court of Appeal held and confirmed that “司法常務官根據《香港終審法院規則》第 7(1) 條發出傳票的決定 … 不屬受司法覆核監督的範圍內”.

6.  Second, the decision of the Registrar to issue a Rule 7 summons is an intermediate or procedural decision which does not give rise to any substantive consequence.  It is well established that, generally speaking, judicial review does not lie against such intermediate or procedural decision: see 郭卓堅 v 林鄭月娥香港特區行政長官及另一人, HCAL 453, 455, 458 & 460/2017 (27 September 2017), at paragraphs 28 and 29.

7.  Third, the Appeal Committee has confirmed the Registrar’s view that the 5 applications in FAMV 3, 4, 12, 28 and 38/2016 disclosed no reasonable grounds for leave to appeal, and accordingly dismissed them.   The question of whether the Registrar ought to have given reasons for his opinion that the applications disclosed no reasonable grounds for leave to appeal is thus academic.

8.  Fourth, the purpose of Rule 7 is to filter out obviously unarguable applications for leave to appeal in an expeditious manner.  It would not be consistent with this purpose to require the Registrar to give reasons for his opinion that an application discloses no reasonable grounds for leave to appeal.  Whether an application in fact discloses any reasonable grounds for leave to appeal is a matter for determination by the Appeal Committee, and an applicant will have a full opportunity to make written submissions to the Appeal Committee to justify the application.  There is nothing in the CFA Rules to suggest that the Registrar is under any duty to give reasons when issuing a summons under Rule 7.  In my view, no such duty exists.

9.  In so far as the Applicant’s summons dated 24 September 2018 is concerned:

(1)  The fact that this court previously ruled against the Applicant in some related proceedings, including HCA 244/2017 and HCAL 950/2017, is not a valid or sufficient ground in support of the application that this court should not hear the present application.  The same complaint was rejected by the Court of Appeal in 莊裕安 v 高院上訴排期主任吳素蘭, CACV 31/2018, [2018] HKCA 502, at paragraphs 9 and 10.

(2)  The fact that the Applicant previously complained to the Chief Judge of the High Court about the performance of some Chinese judges when dealing with his cases is also not a valid or sufficient ground in support of the application that the present case should be dealt with by an English speaking foreign judge.

(3)  Lastly, the question of whether this case should be heard by Fung J is irrelevant, because it has not in fact been assigned to that learned Judge.

HCAL 25/2019

10.  In the Applicant’s application for leave to appeal in FAMV 98/2018, the Registrar, on the basis that he was of the opinion that the application disclosed no reasonable grounds for leave to appeal, issued a Rule 7 summons on 7 December 2018 calling upon the Applicant to show cause before the Appeal Committee why his application for leave to appeal should not be dismissed.

11.  In his Form 86 dated 4 January 2018, the Applicant seeks to challenge:

(1)  the procedure adopted by the Registrar to issue a Rule 7 summons on 7 December 2018 without giving any reasons in support of his opinion that the application in FAMC 98/2018 disclosed no reasonable grounds for leave to appeal; and

(2)  the Court of Final Appeal’s letter dated 27 January 2018 in reply to the Applicant’s letters to the Court of Final Appeal dated 14, 19 and 24 December 2018 respectively.

12.  In so far as the matter mentioned in paragraph 11(1) above is concerned, the court repeats paragraphs 5, 6 and 8 above.

13.  In so far as the matter mentioned in paragraph 11(2) above is concerned, the Court of Final Appeal’s letter dated 27 December 2018, which was sent in reply to the Applicant’s letters dated 14, 19 and 24 December 2018 respectively, merely stated that the Court of Final Appeal had received the Applicant’s said letters and would respond as soon possible.  This letter from the Court of Final Appeal is plainly not something which can form the subject matter of challenge in an application for judicial review.

14.  In so far as the Applicant’s summons dated 14 January 2019 is concerned, the court repeats paragraph 9 above.

15.  In all, the two applications for leave to apply for judicial review in HCAL 1699/2018 and HCAL 25/2019 are not reasonably arguable, and have no realistic prospects of success.  The two summonses dated 24 September 2018 and 14 January 2019 are also unsustainable.

DISPOSITION

16.  The two applications for leave to apply for judicial review in HCAL 1699/2018 and HCAL 25/2019, and the two summonses dated 24 September 2018 and 14 January 2019, are dismissed, with no order as to costs.

17.  Lastly, I should mention that at the conclusion of the hearing on 18 April 2019, the Applicant informed the court that he had no objection to this decision being written in either the English or Chinese language, and he was well conversant with the English language.  In the interest of efficiency and in view of the fact that these applications raise mostly procedural and technical issues, this decision is written in the English language.