WOO TAK YAN v. SECRETARY FOR CIVIL SERVICE

CACV 230/2022

[2023] HKCA 413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2022

(ON APPEAL FROM HCAL NO 1640 OF 2021)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 10 November 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order of Coleman J dated 24 May 2022 refusing to grant him leave to apply for judicial review of the decision of the Secretary for Civil Service made on 1 September 2021 and conveyed to the Applicant on 3 September 2021 that the Applicant be retired from the civil service in the public interest under s 12 of the Public Service (Administration) Order.

2.  The basic facts of this case and the Court’s reasons for dismissing the Applicant’s appeal have been fully set out in the CA Judgment and will not be repeated here.

3.  By Notice of Motion dated 8 December 2022, the Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the Applicant raises 3 complaints:

(1)  The court should determine a case based on relevant legal principles and evidence, but it has incorrectly conflated (i) the Putative Respondent’s submissions and evidence, and (ii) common sense and common law.

(2)  The court should supervise a decision of the executive authority upon consideration of procedural fairness, legality and rationality, but the court has ignored, or failed to take into account, the Putative Respondent’s deliberate concealment to avoid his responsibility, with the consequence that the Applicant was denied clear, certain and predictable details of the Putative Respondent’s reason(s) for his decision.

(3)  The court should determine a case impartially in order to do justice, but has failed to adjudicate the Applicant’s application and appeal fairly, and has acted “above the law”.

4.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.  The Notice of Motion was purportedly signed by the Applicant under the name of “天日昭昭”. As mentioned in paragraph 42 of the CA Judgment, this cannot be regarded as a proper signature of the Applicant. The Notice of Motion lodged by the Applicant is irregular.

6.  In any event, the Applicant’s complaints in the Notice of Motion are mere general allegations, and fail to identify any specific error in the CA Judgment.

7.  In his written submissions dated 22 December 2022 and reply submissions dated 14 March 2023, the Applicant essentially repeats his complaints previously raised before, but rejected by, Coleman J and/or the Court of Appeal, or impermissibly attempts to raise new complaints (eg his allegation that the Putative Respondent has “altered” document(s) when dealing with the Applicant’s case, which allegation has no foundation whatsoever). His mere disagreement with the Coleman J’s judgment or the CA Judgment cannot constitute a valid ground for seeking leave to appeal to the Court of Final Appeal. Further, the Applicant’s complaints are case specific, and do not raise any question of great general or public importance.

8.  No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

9.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed with costs to the Putative Respondent, to be summarily determined.

10.  The Putative Respondent shall have leave to file and serve a statement of costs (limited to 2 pages) within 14 days from the date of this judgment, and the Applicant shall have leave to file and serve a statement of objections (limited to 2 pages) to the Putative Respondent’s statement of costs within 14 days thereafter. Subject to such further directions as may be given, the Court will assess the Putative Respondent’s costs summarily without further notice to the parties.