CHEUNG MEI YIN v. POSTMASTER GENERAL

CACV 209/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2007

(ON APPEAL FROM HCAL NO. 66 OF 2007)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a judgment of A Cheung J given on 5 July this year.  In that judgment, the judge refused to grant leave to bring judicial review proceedings which had been sought by the applicant by a notice dated 14 June 2007.  The applicant seeks to challenge the decision of the Postmaster General which was made on 23 May 1997 or, it is said, alternatively on 6 June 1997, by which the Postmaster General indicated that stamps which bore the head of Queen Elizabeth II could be exchanged during July of 1997 but thereafter would be unusable.

2.  There are two points which clearly arise in this case.  The first is that the decision which is sought to be impugned was more than 11 years prior to today and approximately 10 years prior to the date of this application, and the second is as to the merits of the application.  The short facts of the case are that the applicant had bought some stamps in late 1996 or early 1997.  Unbeknown to her, it had been previously announced on 23 May 1996 that postage stamps bearing the Queen’s portrait and the royal cypher would no longer be valid for postage as from 1 July 1997.

3.  It appears that the applicant still has some $200 worth of stamps in her possession but has not had cause to use those up until recently.  When she found that she could not use them, she wrote to the Postmaster General asking that the stamps be exchanged.  On behalf of the Postmaster General, a letter was sent back pointing out that not only had notice been given in 1996 but that notice was widely publicised in the media and the letter attached copies of some of the notices which had appeared and reports which had appeared in the press.  The letter went on:

“The Postmaster General’s exercise of the power conferred by section 28 of the Regulation to withdraw such stamps for use was notified in the Government Gazette on 6 June 1997.”

and a copy of that notice was enclosed with the letter.  The relevant part of that notice reads:

“It is hereby notified that Hong Kong postage stamps and franking machine impressions bearing signs of British sovereignty, including the Royal Cypher, the British sovereign’s portrait or the Crown, will not be valid for use in Hong Kong after 30 June 1997.  The Postmaster General will not authorize the repurchase of these postage stamps by the Post Office under Regulation 30 of the Post Office Regulations after 30 June 1997.  These postage stamps may be exchanged for current definitive stamps of an equivalent value at the Post Office from 3 to 31 July 1997, both days inclusive.”

4.  I have to say, given the circumstances and the change of sovereignty, that it is my considered view that that decision of the Postmaster General was wholly proper and cannot be criticised in any way.  I do not consider that there are any grounds for criticising the Postmaster General’s conduct as being unreasonable.  But, be that as it may, the first problem which is faced by the applicant is the question of delay and it appears to be simply impossible for this court to grant leave to bring judicial review proceedings after such a lengthy period has expired from the date of that decision.

5.  The applicant seeks to proffer the excuse that she was unaware of the decision until very recently.  But it seems to me that the decision of the Postmaster General not to accept stamps bearing the royal cypher and so forth was wholly to be anticipated on the change of sovereignty and it would be most surprising if letters were allowed to be posted in Hong Kong which bore the royal portrait or the royal cypher or the crown after 30 June 1997 and it cannot have been supposed that that would be allowed to happen.

6.  Mr Lam, who has appeared on behalf of the applicant in this court and has said everything that he could possibly say, seeks to rely on section 21K(6) of the High Court Ordinance, Cap. 4, and that reads:

“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.”

7.  That section on its own, of course, permits the court to extend time but it has to be read in the context of what is considered a reasonable time and reference can also be made to Order 54, rule (4)(1) which reads that:

“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 there is good reason for extending the period within which the application shall be made.”

8.  It is in that timeframe that one must read section 21K(6) because that is the way it has always been interpreted.  In my view, it would clearly be detrimental to good administration to allow this matter to be aired so long after the decision were taken.  There must, in short, be some limit to the court’s power to extend time for bringing judicial review.

9.  The only other matter which I would mention is that it was mentioned in the skeleton argument that this appeal was being heard by two judges.  Mr Lam has indicated that he is not pursuing any point that it should have been heard by three judges but I make it quite clear that, in my view, an appeal in respect of a refusal to allow the bringing of judicial review proceedings is an interlocutory appeal and not a final appeal and, therefore, may be heard by two judges.

10.  This appeal must therefore be dismissed.

Hon Le Pichon JA:

11.  I agree.