LEUNG TC WILLIAM ROY v. SECRETARY FOR JUSTICE

HCAL 160/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 160 OF 2004

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J U D G M E N T

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Introduction

1. On 23 December 2004, the applicant filed a notice of application to apply for judicial review pursuant to O.53, r.3 of the Rules of the High Court.  On 18 January 2005, having heard oral submissions, I granted leave.

2. The respondent has now by way of notice of motion sought to set aside that leave.  This judgment determines the application to set aside.

3. The applicant, who is now 20 years old, is homosexual.  While he has had close relationships with male partners, it is his case that his ability to enter into long term relationships has been frustrated by the fact that at his age, even in private and on an entirely consensual basis, homosexual sex is prohibited by law.  In this regard, s.118C and s.118H of the Crimes Ordinance, Cap.200, prohibit both buggery and acts of gross indecency with or by a man under the age of 21.  The punishments in both cases are sanguine.  Buggery between two men, even in private and on a consensual basis, if one of the men is under 21, brings with it a maximum sentence of life imprisonment.  Acts of gross indecency in the same circumstances attract a possible sentence of two years.  The applicant says that the criminal sanctions imposed on homosexual sex have made it impossible for him to be open about his sexual orientation and relationships with men.  The on-going result has been distress and loneliness.

4. It is the applicant’s case that the law concerning sexual relations conducted in private between consenting persons is discriminatory.  He points to the fact that a man does not have to wait until he is 21 to enjoy sexual relations with a woman.  Provided both parties have reached the age of 16, a heterosexual couple are not subject to the restraints of the law in the same manner as homosexual men; they are free to enjoy both sexual intercourse with each other and other acts of intimacy which, with men, would constitute the criminal offence of gross indecency.  The applicant also points to the fact that the law, as he understands it, does not prohibit sexual relationships between females so that consenting women under the age of 21 are permitted by law to act together in private in a manner which, if they were men, would subject them to criminal sanction.

5. It is the applicant’s contention that this difference in treatment constitutes unlawful discrimination.  It offends the Basic Law and the Hong Kong Bill of Rights, both of which guarantee equality before the law without distinction as to sex and which guarantee freedom from arbitrary interference in the private life of persons.

6. Having said that, however, the applicant has not himself been the subject of any decision or action by any public body arising out of the provisions of the Crimes Ordinance which he says discriminate unlawfully against homosexual men.  He has not, for example, been arrested by the police on suspicion of conduct which offends those provisions.

7. When the applicant’s application for leave to apply for judicial review first came before me, I was concerned that the applicant, not being affected by any decision or action of a public body, the court may not have jurisdiction to hear the matter.  In this regard, Lord Diplock said the following in Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 (at 408E) :

“Judicial review … provides the means by which judicial control of administrative action is exercised.  The subject matter of every judicial review is a decision made by some person (or body of persons) whom I will call the ‘decision-maker’ or else a refusal by him to make a decision.”

8. In the result, through my clerk, the applicant was advised as follows :

“While Mr. Justice Hartmann is satisfied that leave should be granted in respect of the substantive issues raised, he is concerned that the legislation, being primary legislation, is not of itself subject to review.  Mr. Justice Hartmann is aware that in the United Kingdom proceedings of this kind can be brought under the Human Rights Act 1998 or if EC Regulations require.  The difficulty that he envisages is that, in the present case, there does not appear to be any relevant decision or measure made by a public law body.”

9. As a result of my concerns, an ex parte hearing took place on 18 January 2005 at which counsel for the applicant made submissions.  Having heard those submissions, I granted leave.

10. On 11 April 2005, being concerned apparently that the granting of leave in this instance might open the flood gates for persons with no real standing to make direct attacks on primary and secondary legislation, the respondent filed a notice of motion to set aside the leave.  In outline, the respondent has sought to do so on the following grounds, contending that, when considered together, they reveal that the application for leave has constituted an abuse of process :

(i)	that the court has no jurisdiction to grant leave as the applicant’s challenge does not relate to any ‘decision’ of a public law body or, if it does have jurisdiction, leave should only be granted in very exceptional cases, this not being one of them.
(ii)	that the applicant’s complaint is, in the circumstances, concerned with a hypothetical issue, it being well established that common law courts do not decide hypothetical or academic issues; and
(iii)	that the applicant’s challenge is in any event out of time, the applicant having made no attempt to excuse his culpability in this regard.

11. In addition, it has been argued on behalf of the respondent that, in seeking leave, the applicant had been guilty of material non-disclosure.  In my view, that is an essentially factual issue.  Having heard evidence, I am satisfied that the criticism is not well founded.  I say no more on that point.

Setting aside only in ‘very plain’ cases

12. As was emphasised by Mr Dykes SC, leading counsel for the applicant, leave having been granted to the applicant on the basis that he had a prima facie arguable case, the leave should only be set aside if it is demonstrated that it was plainly wrong to have granted it.  In this regard, in Lam Yuet Mei v. Education and Manpower Bureau (unreported) HCAL 36/2004, Chu J said the following :

“Generally speaking, the court has jurisdiction under Order 32 rule 6 of Rules of the High Court and also under its inherent jurisdiction to set aside leave granted ex parte.  The power is however to be used sparingly and only in plain and obvious cases: Hong Kong Civil Procedure 2004 volume 1 para. 53-14/44 and Fordham, Judicial Review Handbook (3^rd edition) para. 21.7.2 at pp. 360-1.”

13. The reason for the principle has been expressed as follows by Bingham LJ :

“I would, however, wish to emphasize that the procedure to set aside is one that should be invoked very sparingly.  It would be an entirely unfortunate development if the grant of leave ex parte were to be followed by applications to set aside inter partes which would then be followed, if the leave were not set aside, by a full hearing.  The only purpose of such a procedure would be to increase costs and lengthen delays, both of which would be regrettable results.  I stress therefore that the procedure is one to be invoked very sparingly and it is an order which the court will only grant in a very plain case.”  [Cited by the Divisional Court in R. v. Secretary of State for the Home Department, ex parte Nazir Chinoy [1991] C.O.D. 347-434, at page 383]

The test to be applied in granting leave

14. Whether in the present case the granting of leave was plainly wrong may only be determined by having regard to the level of scrutiny that should have been applied to the application when it first came before the court.  The test that I applied was the test propounded by Kempster JA in R. v. The Director of Immigration, ex parte Ho Ming Sai (1993) 3 HKPLR 157 (at 161 and 170); namely, whether the material before me disclosed matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought.

15. It is not an onerous test.  It is, in practical terms, a test which eliminates frivolous, vexatious or hopeless applications for judicial review but allows all others.  If the court, on a reasonably brisk examination of the papers, is satisfied that a case has been presented which is fit at least for further investigation at a full inter partes hearing then it should grant leave.

16. Mr McCoy SC, leading counsel for the respondent, has argued that it is the wrong test; that a more stringent test should be applied.  While frankly I have some sympathy for his submission that the test, as presently worded, is too weak and may, by that reason, as often undermine the ends of justice as enhance them, I am satisfied that I am nevertheless bound to apply that test.  I do not agree with Mr McCoy when he says that the issue is an open one.  For judges at first instance the test that I have enunciated remains the test that must be applied.  While the Court of Appeal in Wong Chung Ki v. Chief Executive of HKSAR [2003] 1 HKC 413 may have expressed some doubts as to the test, no decision was made to change it and Godfrey VP (at 417G) specifically reminded judges of first instance that they should regard themselves as still bound by it.

17. In the circumstances, when I granted leave to the applicant, I did so on the basis not that I accepted his contentions as to jurisdiction and locus standi to be proved but only on the basis that, on the materials presented to me, I was satisfied that a case had at least been presented which was fit for ventilation at a full inter partes hearing.

The first issue : the lack of a ‘decision’

18. It is accepted that the applicant has not sought to challenge any ‘decision’ made by a public body which has affected him.  His challenge goes direct to the primary legislation.  As I have said, it is the respondent’s submission that, there being no ‘decision’, the court either has no jurisdiction to entertain the application or, if that is not the case, that should, in the absence of very exceptional circumstances, decline to exercise its discretion to hear the application.  This, it is said, is not an exceptional case.

19. In determining this issue, it is important first to consider the nature of the remedy that the applicant seeks.  He does not seek any of the prerogative remedies.  He seeks only a declaration.  A declaration, as I understand it, does no more than state; that is, declare, the law and the rights of parties in the light of that declaration.  It may perhaps be described as a remedy of clarification.  It is not at root a coercive remedy.  In the eyes of some commentators, that it is not so is one of its advantages as a remedy in the field of public law.  In this regard, the editors of De Smith, Woolf and Jowell’s Judicial Review of Administrative Action (5^th Ed.) say the following (18-002) :

“Because it merely pronounces upon the legal position, it is well suited to the supervisory role of administrative law in England.  In addition, by careful draftsmanship the declaration can be tailored so as not to interfere with the activities of public bodies more than is necessary to ensure that they comply with the law.  In many situations all that is required is for the legal position to be clearly set out in a declaration for a dispute of considerable public importance to be resolved.  It usually relates to events which have already occurred.  However, as will be seen, it is increasingly being used to pronounce upon the legality of a future situation and in that way the occurrence of illegal action is avoided.”  [my emphasis]

20. Increasingly, as the editors have said in the passage that I have just emphasised, the courts of England and Wales have seen fit to grant declaratory relief when that relief may be described as advisory in nature.  As Laws LJ said in R. (on the application of Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840 :

“The court in its judicial review jurisdiction is not generally concerned to give advisory opinions as to how public authorities ought to act; although – and this is an important reservation – there may be circumstances when it is its duty to do so.”

21. The giving of an advisory judgment, of course, implies that there is no existing ‘decision’ of a public body which is the subject of the declaratory relief, at least not at the time the judgment is given.  In principle therefore, as I understand the law now to be, if an applicant seeks only declaratory relief, the court has the jurisdiction to hear the matter even though the challenge is not based on the existence of some ‘decision’ by a public law body.  Absent a ‘decision’, declaratory relief may be granted if the court considers it ‘just and convenient’ to do so : see O.53, r.1(2).  There must, of course, be a real question to be determined, not a question floating entirely in the ether of theory.  The person seeking the declaratory relief must have a real interest in the matter and, before any declaration as to the law can be made, there must be proper argument.  These appear to be the basic conditions to be fulfilled : see, for example, Greenwich Healthcare NHS Trust v. London and Quadrant Housing Trust [1998] 1 WLR 1749, at 1756.

22. In the present case, in my view, it is certainly prima facie arguable that a real question falls for determination, one that profoundly affects the private lives of a whole class of persons.  Equally, I consider it prima facie arguable that the applicant has a real interest in the matter.  He professes to be homosexual and asserts that the law as it stands unlawfully discriminates against him in a manner that has a real influence on his entitlement to the pursuit of happiness in his private life.

23. In some ways, of course, it may be said that what the applicant seeks is a declaration as to the lawfulness of desired future conduct : will it or will it not constitute criminal conduct?  In R. (Rushbridger and Another) v. Attorney General [2003] 1 AC 357, at 367, Lord Steyn said that normally the seeking of a declaration in a civil case about the lawfulness of future conduct will not be permitted.  But, to use his words, “in truly exceptional cases the court may allow such a claim to proceed”.  In short, jurisdiction was accepted, the issue was one of discretion.  The criteria for exceptional cases was considered by Lord Steyn who, on my reading, adopted two substantive criteria.  First, whether the case is fact sensitive or not, questions of pure law being more readily made the subject of a declaration.  Second, whether there is a “cogent public or individual interest which could be advanced by the grant of a declaration”.  In the present case I think it can well be argued that both these criteria are met.

24. But in the present case should the applicant, who seeks declaratory relief, be entitled to directly challenge the lawfulness of primary legislation?  In this regard, the following question may be posed.  If the applicant is unable to directly challenge primary legislation in this manner, how else is he to assert what he considers to be his constitutional rights?  If he is denied declaratory relief he may say – perhaps with some force – that he is given constitutional protection under the Basic Law but has no means of enforcing it through the courts.

25. What must be understood is that, with the Basic Law, Hong Kong today has a different constitutional architecture than it enjoyed before the change of sovereignty.  If access to the protections afforded by the Basic Law is to be provided to those persons who in appropriate cases have a real interest in the matter, it seems to me that the natural route to take is by way of judicial review seeking declaratory relief.  This may not have been attempted before in Hong Kong but that is not to say it may not be a permissible process.

26. I do not come to this conclusion without the benefit of authority.  That authority is R. v. Secretary of State for Employment, ex parte Equal Opportunities Commission and Another [1995] AC 1, a judgment of the House of Lords.  The factual context may be stated as follows.  The Equal Opportunities Commission (‘the EOC’) wrote to the Secretary of State asserting that certain employment legislation indirectly discriminated against women and was therefore in conflict with European Community law.  The Secretary of State replied by letter saying that any differentiation in treatment was justifiable.  The EOC then applied for judicial review, the ‘decision’ under challenge being the Secretary of State’s letter.

27. It was held by their Lordships that the letter from the Secretary of State did not constitute a ‘decision’, merely a statement of a point of view.  But the lack of a ‘decision’ did not deprive the courts of jurisdiction to grant declaratory relief under R.S.C., O.53, r.1(2) – from which we draw our own O.53, r.1(2) – that declaration being to the effect that the primary legislation was incompatible with Community law.  In this regard, the headnote reads :

“… the Secretary of State’s letter of 23 April 1990 had not constituted a ‘decision;’ but that under R.S.C., Ord. 53, r. 1(2) the Divisional Court had jurisdiction to declare that primary legislation, viz. the threshold provisions of the Act of 1978, was incompatible with Community law notwithstanding that there was no decision in respect of which one of the prerogative orders would be available under Ord. 53, r. 1(1);…”

28. I accept that the EOC case was determined in the factual context of European Community law.  But that, in my view, does not bear on the basic principle enunciated; namely, that an applicant seeking declaratory relief may in appropriate cases directly challenge primary legislation.

29. In summary, therefore, it seems to me to be at least prima facie arguable – I need put the test no higher at this stage – that the applicant, who seeks only declaratory relief and not a prerogative order – is not required, as a matter going to jurisdiction, to identify some public law ‘decision’.  I believe it is further arguable that his application, going to what he says are fundamental rights protected by the Basic Law, may properly be classified as an application that is exceptional and, as such, one in respect of which the court should favourably exercise its discretion.

The issue of ‘standing’

30. S.21K(3) of the High Court Ordinance, Cap.4, directs that, in matters of judicial review, the court shall not grant leave “unless it considers that the applicant has a sufficient interest in the matter”.

31. It has long been recognised that at the leave stage it may not be possible to make a final determination whether an applicant does or does not have a sufficient interest in the matter.  At the leave stage therefore – or ‘threshold’ stage, as it has been called – a prima facie view is all that is required.  In this regard, in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Business Ltd [1982] AC 617, at 642, Lord Diplock said :

“Rule 3 (5) specifically requires the court to consider at this stage whether ‘it considers that the applicant has a sufficient interest in the matter to which the application relates.’  So this is a ‘threshold’ question in the sense that the court must direct its mind to it and form a prima facie view about it upon the material that is available at the first stage.  The prima facie view so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the second stage, the hearing of the application for judicial review itself.

The need for leave to start proceedings for remedies in public law is not new.  It applied previously to applications for prerogative orders, though not to civil actions for injunctions or declarations.  Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

32. Is it plain in the present case that the applicant has no interest at all, or no sufficient interest, to support the application?  I do not think it is plain at all.  To the contrary, it is apparent that the applicant is directly affected by the constraints of the statutory provisions to which he objects and that if those constraints are declared to be inconsistent with the Basic Law and/or the Bill of Rights he will directly and substantively stand to benefit.

33. Mr McCoy, in his submissions, linked the issues of ‘no decision’ and ‘no standing’, the one being essentially integral to the other.  The applicant was not affected by any decision of a public body, he argued, he had not, for example, been arrested by the police, and therefore he had no locus standi; that is, no sufficient interest or standing to make the application.  But having found that it is prima facie arguable that, in only seeking declaratory relief, the applicant does not require a ‘decision’ to be identified in order to found jurisdiction, it must follow that he does not need to demonstrate that he has been affected by any ‘decision’.  It must be arguable in the present case therefore that the applicant, as a person profoundly affected in a continuing way by the statutory provisions to which he objects, is no busybody nor the purveyor of a trivial or misguided complaint; in short, that he does have a real interest in the matter.

The question of delay

34. The applicant did not see fit to institute proceedings until he reached the age of 20.  Nor did he offer an explanation for this apparent delay.

35. S.21K(6) of the High Court Ordinance, Cap.4 reads :

(6)	Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant-
	(a)	leave for the making of the application; or
	(b)	any relief sought on the application,
if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

36. Mr McCoy has submitted that manifestly there has been undue delay and that to permit him to proceed without attempting to explain or excuse that delay has left the court in an invidious position. 

37. But it seems to me to be at least arguable that, when declaratory relief only is sought going directly to primary legislation, what is being considered is an on-going state of affairs.  What then becomes of paramount importance is whether there is a real question to be determined and whether the applicant has a real interest in it.

38. In any event, I do not see that the granting of relief in respect of fundamental rights can be said – in the present case – to cause substantial hardship to any group of persons or be detrimental to good administration, indeed the opposite may be contended.

39. O.53, r.4(1) of the Rules of the High Court reads :

“An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

But, in a case of this kind, when can it be said that the grounds for the application first arose?  As I have emphasised, we are talking about an on-going state of affairs.

40. This is not to say that issues of promptness are never relevant when a declaration is sought that goes direct to primary legislation.  They may sometimes be of central relevance.  But in the present case, the court having a discretion, it does not seem to me that issues of promptness are of importance, not at least to prevent the applicant from arguing his case at a substantive inter partes hearing.

More appropriate applicants

41. During the course of argument, Mr McCoy made mention of the fact that certain gentlemen are presently facing prosecution in respect of some (or all) the legislative provisions which the applicant challenges.  These people, it appears are represented by the applicant’s counsel, Mr Pun.  Mr McCoy suggested that perhaps it would be better if these people could bring the application.  Perhaps so.  But is that the point?  The issue is whether this applicant’s grant of leave should stand or be set aside.

Conclusion

42. For the reasons I have given, I am satisfied that the leave granted should stand.

43. I will hear from the parties as a matter of urgency as to directions for the substantive hearing and, if required, as to costs.