LAM KING NAM v. COMMISSIONER OF CUSTOMS AND EXCISE

HCAL 58/2016

[2025] HKCFI 5773

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 58 OF 2016

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D E C I S I O N

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A.  Introduction

1.  These proceedings were commenced by Form 86 dated 11 March 2016 (i.e. approaching 10 years ago). The Applicant, acting in person, sought leave to apply for judicial review so as to challenge a decision made by the Commissioner of Customs and Exercise to terminate the service of the Applicant as a probationary Customs Officer as from 15 December 2015.

2.  The Applicant requested an oral hearing of the application for leave to apply for judicial review and various directions were previously given in that regard. In particular, Zervos J (as he then was) indicated that he would not grant leave on the papers, but would benefit from an oral hearing with the participation of the Commissioner. Directions given included that the Applicant should file skeleton submissions by 24 May 2016 and the Commissioner should file any skeleton submission by 31 May 2016. The oral hearing date was fixed for 3 June 2016.

3.  However, on 16 May 2016, the Applicant sought leave to adjourn the leave hearing and the various deadlines imposed, pending the result of his appeal against the Director of Legal Aid’s refusal of the grant of legal aid to him. By directions given on 20 May 2016, the leave hearing was vacated on the basis that new directions would be made once the Court was notified by the Applicant of the outcome of the legal aid appeal, and that the parties should be ready to proceed with similar directions once a hearing is fixed.

4.  By letter dated 21 February 2017, the Applicant informed the Court that the hearing for his legal aid appeal had taken place on 31 August 2016 and was adjourned to 14 August 2017. Apparently the hearing was then further adjourned to 13 November 2017, though this fact was not informed by the Applicant to the Court.

5.  Indeed, the Applicant has failed to provide any update to the Court or the Commissioner since his letter dated 21 February 2017. Whatever the result of the legal aid appeal, I think it is fair to state that the Applicant has apparently effectively chosen to discontinue these proceedings, albeit informally through his own inaction.

6.  These long-stagnant proceedings were brought to my attention recently. On 11 November 2025, I gave a direction that unless by 21 November 2025 I should hear from either party requesting a different course of action – which request, if made, I would consider – then the proceedings would be dismissed forthwith, with no order as to costs.

7.  My direction was sent to the Applicant at his address for service on the Court file, as was given by him.

8.  If that address for service is for any reason no longer good, the Applicant has failed to update it, which is at least consistent with the absence of any other contact from him since 21 February 2017. There is no duty placed upon the Court to find litigants for service if they have changed address but failed to inform the Court.

9.  The Applicant has failed to give any response to my direction.

10.  However, the Department of Justice on behalf of the Commissioner has responded, to seek an order that the application for leave to apply for judicial review be dismissed, with costs to the Commissioner. That response was copied to the Applicant at his address for service.

11.  The dismissal with an order for costs against the Applicant is sought on the basis that: (1) the leave application was in any event wholly misconceived and unmeritorious, relating to a decision made by the Commissioner exercising a contractual power which did not involve any element of public law, and which was therefore not amenable to judicial review; (2) at the invitation of the Court, the Commissioner has incurred time and costs to prepare for the previously anticipated hearing; and (3) the Applicant has in effect discontinued the proceedings, and the general rule that an applicant who chooses to discontinue proceedings can expect to pay the costs should apply.

12.  I see some force in those points. I accept that most ex parte applications for leave to apply for judicial review, if dismissed, may lead to a ‘no order’ as to costs. But that is often not the case when the matter is directed by the Court to involve the putative respondent, such that the applicant will know that if the proceedings are continued he will be at risk as to the costs incurred by the putative respondent. This was no doubt in part why the Applicant continued to seek legal aid in this case.

13.  On the other hand, the directions previously given in this case tend to show the Judge then dealing with the matter was not of the view that the application obviously and on its face had no merit. Indeed, Court enquiries have also found that the legal aid appeal was apparently successful – though the application for leave to apply for judicial review was not then pursued, perhaps because the Legal Aid Department could not contact the Applicant.

14.  Further, the relevant costs incurred by the Commissioner were incurred many years ago, but no step was taken to seek those costs even when it must have become apparent long ago that the judicial review application had in effect been abandoned. On one view, these proceedings can be thought to have been effectively abandoned on both sides. The claim to costs was made only in response to my own indication to the parties – made some 8 years or so after any activity in the case – that the application looked like it ought to be dismissed for want of prosecution.

15.  In the exercise of my case management decision, it seems to me entirely appropriate that these proceedings –which have in effect been long ago abandoned by the Applicant – should be dismissed. But, despite the first blush force in the points made for the Commissioner, I am on balance and in the exercise of my discretion not persuaded that the costs previously incurred by the Commissioner should now be payable by the Applicant.

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