SZETO CYNTHIA v. DIRECTOR OF HKSAR AGRICULTURAL & FISHERIES DEPARTMENT

HCAL 1932/2025

[2025] HKCFI 4561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1932 OF 2025

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DECISION

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BACKGROUND

1.  By a Form 86 filed on 28 August 2025 (“the Form 86”), the applicant named the “Director of HKSAR Agricultural & Fisheries Department” as the proposed respondent to her application for leave to apply for judicial review.  I would take it that the applicant was referring to the Director (“the Director”) of the Agriculture, Fisheries and Conversation Department (“the Department”).

2.  The application was supported by 2 affidavits, which were filed on 28 August 2025 and 3 September 2025 respectively.

3.  Having considered the papers, I am satisfied that it is appropriate to deal with this application on paper. 

THE APPLICANT’S APPLICATION

4.  Order 53 rule 3(1) of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“the RHC”) provides that:

“No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.”

5.  Order 53 rule 3(2) of the RHC further provides that an application for leave must be made ex parte by filing in the Registry a notice in Form No.86 in Appendix A.

6.  In the Form 86:

(1)  As to the “Judgment, order, decision or other proceeding in respect of which relief is sought”, the applicant stated:

“1) decision w/o justification: authority abuse;

2) counter law-enforcement;

3) black-box operation: corruption suspected;

4) national security endangerment as a result of 1) to 3) above.”

(2)  The “Relief Sought” row has been left blank.

7.  She subsequently filed a supplemental affidavit which contained more information. 

8.  It appears that the material facts relied on by the applicant are as follows:

(1)  A dog known as “Fuk Jai” (“the Dog”) was, according to the Department’s record, born in 2015.  The “permanent keeper” of the Dog was called Lam Hing;

(2)  The Dog got microchipped by Lam Hing in 2017;

(3)  In 2020, the Dog was caught by the Department in Yuen Long, having received complaints from the neighbourhood that the Dog was unleashed and uncontrolled in the area;

(4)  Since then, the Dog was taken care of by Lok Hong Social Services Association (“the Association”);

(5)  The Department refused to grant permanent keeper status in relation to the Dog to the Association in 2020 and 2023;

(6)  Despite multiple calls made by the Department and the Association, Lam Hing refused to give up her permanent keeper status in relation to the Dog;

(7)  The Department had also refused to grant permanent keeper status in relation to the Dog to the applicant until the Ombudsman intervened upon the applicant’s complaint made sometime after May 2025.

9.  In the “conclusion/relief sought” paragraph, she stated that:

“(1) [the Department] to adhere to its own published laws as stipulated in HKSAR Ordinances CAP.167,421,421A and enforce the same with impartiality, after all everybody is equal before the law! (2) Do away with outdated rules and ‘rules invented by’ [the Department] staff on their own initiatives without being sent for approval by Director and/or legal counsel. (3) Director must exercise his discretion properly and not abuse his authority by inaction or over-reaction (4) I hereby request HKSAR Law Courts to instruct the HKSAR Ombudsman and HK-ICAC to conduct a thorough audit/investigation of [the Department] operations in order to right the wrongs that [the Department] had/has committed against the HKSAR general public, both human and/or animals, in order to give us Silent and Innocent Victims a voice!”

10.  In the other parts of the same supplemental affidavit, it seems that the applicant also complained against:

(1)  The Department’s failure to prosecute Lam Hing for only microchipping the Dog in 2017 despite its birth in 2015;

(2)  The Department’s failure to prosecute Lam Hing for failing to control the Dog in 2020;

(3)  The Department’s refusal to grant the Association the licence as permanent keeper of the Dog in 2020 and 2023;

(4)  Lam Hing for refusing to give up her right as the Dog’s permanent keeper;

(5)  The Department’s refusal to grant her the licence as permanent keeper of the Dog in February 2025 until the intervention of the Ombudsman;

(6)  A staff member of the Department known as “HF Chan” who answered her telephone enquiry on 31 March 2025;

(7)  Another staff member of the Department known as “Cheng Hon Yin” (“Cheng”) who, in May 2025, called and requested her to complete the formalities for the renewal of her temporary keeper status of the Dog.

DISCUSSION

11.  In my view, there is no merit in the applicant’s application for leave to apply for judicial review.

12.  First of all, as the Form 86 does not specify the decision which the applicant intends to challenge nor the relief which she would like to claim, the present application is bound to be dismissed on this ground alone.

13.  Even if the content of the applicant’s affidavits should be taken into account, her intended judicial review is still not reasonably arguable.

14.  As far as the “failure to prosecute” challenge is concerned, it is trite that prosecutorial decisions, under the framework of Article 63 of the Basic Law[1], are protected from judicial encroachment, save in extremely rare situations, such as where there is evidence proving that the Department of Justice has acted in obedience to political instruction when making the decision, or is acting in bad faith, such as to cause the Court to find that the prosecutorial decision is unconstitutional, that the Court will have jurisdiction to review the decision concerned: Re Leung Lai Fun [2018] 1 HKLRD 523, at [10].  However, in the present case, the applicant has not even begun to show the existence of any such situations.

15.  In any event, it is pertinent to note that the underlying suspected offences[2] had already been time-barred at the time when the Form 86 was filed, so that prosecution of that suspected offences is no longer possible.  Therefore, it is difficult to see what practical benefit could be brought by these proceedings.  In other words, the issues raised in relation to the prosecution of the offences have become academic.  Therefore, no leave should be granted even if the applicant can establish any valid ground: Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319, at [18].

16.  In relation to the Department’s refusal to grant the Association a licence as permanent keeper of the Dog, the applicant has not established that she has standing to make the present application.  This challenge is therefore bound to be dismissed.

17.  As for Lam Hing’s refusal to give up her right, that is simply not a matter which can be subject to challenge by way of judicial review proceedings.

18.  As for the Department’s refusal to grant the applicant a licence as permanent keeper of the Dog in February 2025, it appears that that decision has already been superseded by a subsequent one (which the applicant described as the Department having “right the wrongs”).  The issue has therefore become academic.

19.  Furthermore, from the materials produced, there is simply inadequate material to show that there was any procedural impropriety in the Department’s processing of the applicant’s application back in February 2025 (or before that) nor that the Department’s decision was unreasonable in any way.

20.  Insofar as the dialogues between the applicant and the Department’s staff members are concerned, those staff had simply not made any “decision” as such.  Judicial review is therefore not the correct arena even if the applicant is not satisfied with the answers given by those staff.

21.  Last but not least, all her complaints (except the last one concerning Cheng) relate to decisions/incidents which were made/happened more than 3 months before the filing of the Form 86.  The leave application was therefore commenced out of time.  Yet, the applicant had provided no reason at all to justify her delay in bringing these proceedings.

22.  For the sake of completeness, I should also emphasize that I have considered the “conclusion/relief sought”.  However, I find that they are either not matters which can be pursued by way of judicial review proceedings, or they are totally unsupported by the evidence adduced.

DISPOSITION

23.  In the circumstances, the applicant’s application for leave to apply for judicial review is dismissed. 

24.  I make no order as to costs.