莊裕安 v. 律政司司長林定國

HCAL 1243/2023

[2023] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1243 OF 2023

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JUDGMENT

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1.  This is the Applicant’s (“Chong”) application for leave to apply for judicial review. It is based on a homemade Form 86. It appears that the decision which is intended to be challenged is the decision of the Secretary for Justice (“SJ”) to prosecute Mr Lai Chee Ying (“Lai”) under the National Security Law (“NSL”).

2.  I regret to say that this application is devoid of merits, and should be disposed of swiftly. However, this Court will have to examine whether this application is used by Chong to make a collateral attack to a number of Judgments or Orders of the Court with which he disagrees.

3.  Chong is conversant with the English language. He had previously informed the Court that he was educated in the UK.

Merits of this application

4.  Lai was indicted on 24 May 2022 for breach of NSL, and for which he is to stand trial on 18 December 2023. The decision to prosecute Lai (“Decision”) must have been made by the SJ not later than 24 May 2022.

5.  There are a number of legal issues with this application for which there is no answer. First, there is inordinate and unexplained delay with Chong’s intended challenge over the Decision. It is trite that judicial review must be brought promptly. Failure to do so can be, and in this case is, fatal to the application. The reason is simple. To allow a challenge to the Decision after so long would be, as an example, potentially disruptive to the prosecution of offence designed to protect the stability of Hong Kong.

6.  Second, it is not at all clear from the material put before the Court by Chong or his viva voce submissions why he has sufficient interest in the prosecution of Lai under the NSL. Chong said that he is not concerned whether or not Lai will be convicted. This is also a fatal deficiency to this application.   

7.  It appears that the real motive of this application has been laid bare by the relief sought by Chong, namely, an order to immediately dismiss all the charges against Lai, otherwise in parallel with the proceedings against Lai, prosecution should be brought by the SJ against 11 people so as to ensure that he applies a uniform standard of prosecution. The 11 people include the previous and the current Chief Justice, 3 Permanent Judges of the Court of Final Appeal (“CFA”) and 3 Non-permanent Judges of the CFA. It will be apparent from the discussion below that this is a naked attempt by Chong to misuse the process of this Court to vent his collateral attack over previous Judgments or Orders of the Court and the Judges involved.

8.  Third, the scope for the Court’s review jurisdiction over a prosecutorial decision is, if exists, very limited[1]. If such jurisdiction exists, it would only be invoked in the rarest of cases such as bad faith or mere compliance with a political instruction. In this application, Chong has not begun to make out such a rare case.

9.  It should be added that the NSL might have introduced an extra dimension to the Court’s review jurisdiction over a prosecutorial decision on NSL. However, it is unnecessary to deal with that complex legal issue for the present purpose.

10.  I should mention that in his affirmation filed on 27 October 2023, Chong had exhibited an amended version of his homemade Form 86 which contained 3 additional grounds. Those additional grounds did not address the fundamental flaws identified above.  

11.  For these reasons, this application is dismissed. I make no order as to costs.

Abuse of process

12.  Chong may be described as a habitual user of the Court’s resources. It appears that he has a deep-seated dissatisfaction with a number of Judgments or Orders of the Court which had gone against him. He is of course entitled to his own views on the Judgments of the Court, but he is not entitled to abuse the process of the court for the purpose of making collateral attacks on the same.

13.  Chong’s grievances may be traced to 4 Orders of the CFA (Ribeiro PJ, Tang PJ and Fok PJ) all dated 18 August 2016 made in FAMV 3/2016, FAMV 4/2016, FAMV 12/2016 and FAMV 28/2016 by which Chong’s applications for leave to appeal to the CFA were dismissed on the ground that they disclosed no reasonable grounds for leave to appeal in accordance with Rule 7(2) of the Hong Kong Court of Final Appeal Rules, Cap 484.

14.  These dismissals triggered off an action by Chong in HCA 244/2017 (“Action”) by which the CFA, the Registrar of the CFA and the 3 Permanent Judges mentioned above were sued in relation to the dismissals. Amongst others, allegation of dereliction of duty on the part of the Permanent Judges was made based on Chong’s opinion that the CFA had not taken sufficient time over his applications. In his submission, Chong also said that 2 of the Permanent Judges are monolingual and were unable to read the Chinese documents in his cases.

15.  However, the Action was struck out by Registrar Lung as being unfounded in his Decision dated 21 April 2017. It should be noted that in the Decision the learned Registrar made references to the principles of abuse of process. Chong appealed against the Decision, which was heard before Mr Justice Chow (as he then was). In his Decision dated 28 July 2017, the learned Judge held that the Action was not based on any reasonable cause of action. It constituted “malicious slander, and was trivial, vexatious and an abuse of the court’s process”. Chong’s appeal was dismissed.   

16.  Chong then further appealed to the Court of Appeal (“CA”) in CACV 185/2017, which was dismissed ([2018] HKCA 325). His application for leave to appeal to the CFA was also dismissed by the CA ([2018] HKCA 762). Chong’s application to the CFA for leave to appeal was also dismissed under Rule 7(2) by Ma CJ, Cheung PJ and Chan NPJ (FAMV 98/2018).

17.  Chong then changed his tact and launched 2 applications for leave to apply for judicial review in HCAL 1699/2018 and HCAL 25/2019 to challenge the adoption of the Rule 7 procedure by the Registrar of the CFA in, inter alia, FAMV 3/2016, FAMV 4/2016, FAMV 12/2016 and FAMV 28/2016. The applications were dismissed by Chow J on 26 April 2019 ([2019] HKCFI 1073). Chong’s appeal to the CA (CACV 216 and 217/2019) were dismissed ([2020] HKCA 177) and his applications for leave to appeal to the CFA were dismissed by both the CA ([2020] HKCA 587) and CFA (FAMV 178/2021).

18.  Chong made another application for leave to apply for judicial review in HCAL 2941/2019 to challenge the decision in FAMV 98/2018. By a Decision dated 22 November 2019 ([2019] HKCFI 2846) the leave application was dismissed by Chow J as not reasonably arguable. Chong’s appeal to the CA (CACV 552/2019) was dismissed ([2020] HKCA 970). His application for leave to appeal to the CFA was also dismissed by the CA ([2021] HKCA 102).

19.  On 1 February 2021, Chong made yet another application for leave to apply for judicial review (HCAL 112/2021) to challenge, inter alia, the dismissal of his appeal by the CA in CACV 552/2019 under [2020] HKCA 970. It was dismissed by Chow J on 20 April 2021 as “misconceived and amounts to an abuse of process” ([2021] HKCFI 988).

20.  It is self-evident that the above proceedings had taken up an extraordinary amount of the Court’s precious resources. None of Chong’s complaints had been founded by the Court to be properly grounded. To give an example, Chong has been complaining incessantly that Ma CJ was disqualified in hearing his application under FAMV 98/2018 because he was a party to the proceedings. However, in [2020] HKCA 970 (CACV 552/2019), the CA went to considerable length to explain that “Ma CJ was not a party to FAMV 98/2018 or the proceedings below in HCA 244/2017 and CACV 185/2017”[2], and dismissed the complaint.

21.  All the above proceedings had been determined by Court under its due process. Save for HCAL 112/2021 ([2021] HKCFI 988), Chong had exhausted the avenue of appeal. As for HCAL 112/2021, the appeal period had long expired.

22.  It should also be added that Chong seems to have the habit of filing affirmations in his proceedings as and when he liked without regard to orderly litigation conduct or proportionality, thereby adding to the burden of the Court unnecessarily. Although I accept that he was (and is) unrepresented, given his sophistication and experience as a court user, he should know better in organising his evidence.    

23.  Despite repeated warnings by the Court, Chong is unremorseful in his abuse of the court’s process to the prejudice of other users.

24.  It has not escaped the Court that Chong has the sophistication to camouflage his proceedings as one for a different purpose (other than a collateral attack of the Judgments of the Court), but the true objective normally reveals itself when the evidence is reviewed. This case serves to illustrate the point. I cannot accept Chong’s submission that the intended judicial review is to ensure that the SJ applies his prosecutorial policy even-handedly. The true purpose of this leave application is to ventilate yet again Chong’s complaints against various Judgments or Orders and against various members of the judiciary who had dealt with his cases. Indeed, the submissions made by Chong during this application consisted of such complaints and little else.  

25.  Further, it appears that the evidence adduced in this case, which basically consisted of Chong’s complaints were, and are, used in many, if not all, of his other cases.

26.  It should be emphasized that the above do not represent all of Chong’s proceedings. My research shows that there was at least one other application for leave to apply for judicial review, namely, HCAL 765/2020 which was largely a disguised collateral attack of the Judgments of this Court. The application was dismissed by Madam Justice L Wong on 31 July 2020 ([2020] HKCFI 1795). Chong’s subsequent application for leave to appeal out of time was also dismissed by the learned Judge ([2023] HKCFI 2144).

27.  The Court must act to put a stop to Chong’s abuse of process, and to preserve its precious resources for properly distribution amongst court users.

28.  Chong was given a fair opportunity to address the Court on whether a Restricted Proceedings Order should be made against him. There is nothing which he has said which can militate against such an Order. I would mention a few of his submissions.

29.  As regards his complaint that the CFA had failed to deal with his applications properly under the Rule 7 procedure, the matter was explained by Registrar Lung in his Decision in HCA 244/2017, [13]-[14] and by Chow J in [2019] HKCFI 1073, [5]-[8].

30.  In respect of Chong’s complaint about the inability of monolingual Judges to read Chinese documents. The point was dealt with by the CA in CACV 151/2023 ([2023] HKCA 1184), [12].

31.  I am unable to accept Chong’s submission that this judicial review application raises brand new point and not aimed at attacking the Judgments of the Court. I have adequately dealt with this point in paras [24] and [25] above.

32.  For these reasons, and applying the principles laid down in Ng Yat Chi v Max Share Ltd [2005] 1 HKLRD 473, I make the following Restricted Proceedings Order against Chong :

(1)  Chong be prohibited from commencing any fresh proceedings, by whatever originating process, in the High Court or District Court concerning any matters involving or relating to or touching upon or leading to the proceedings in :

(i)  FAMV 3/2016;

(ii)  FAMV 4/2016;

(iii)  FAMV 12/2016;

(iv)  FAMV 28/2016;

(v)  HCA 244/2017;

(vi)  CACV 185/2017;

(vii)  FAMV 98/2018;

(viii)  HCAL 2941/2019;

(ix)  CACV 552/2019;

(x)  CACV 216/2019;

(xi)  CACV 217/2019; and

(xii)  FAMV 178/2021,

without the leave of the Court of First Instance;

(2)  All applications for leave under paragraph (1) be made by Chong ex parte in writing to the designated judge, namely :

(a)  Mr Justice Anthony Chan; or

(b)  in the event of his unavailability, such other Judge or Judges of the Court of First Instance as the Chief Judge of the High Court may designated;

(3)  At least 7 days before filing any application for leave under paragraph (1), Chong do notify in writing each intended defendant or respondent of his intention to make such application, enclosing a copy of the draft document by which the fresh proceedings are intended to be commenced, and if any response is received by Chong from any such intended defendant or respondent, that Chong do file a copy of each such response together with his said application for leave;

(4)  Any intended defendant or respondent having notice of such intended proceedings be entitled, but under no obligation, to place before the court written representations regarding the same;

(5)  All applications made pursuant to this Order and all ancillary matters be dealt with by the court on the papers and without any oral hearing unless the designated judge should otherwise direct;

(6)  If Chong should issue fresh proceedings falling or which may fall within the terms of paragraph (1) without first seeking the court’s leave, and if such fact should come to the notice of the Registrar of the High Court or any Master or Judge, such fresh proceedings be referred to the designated judge for a decision as to whether they should be permitted to continue or should be dismissed;

(7)  Notice of each decision by the designated judge made pursuant to this Order be given in writing to Chong and to each intended defendant or respondent named in the fresh proceedings;

(8)  Whether or not any fresh proceedings are brought to the notice of the designated judge, if a defendant or respondent is served with such proceedings without the relevant documents being accompanied by either an Order giving leave to commence such proceedings or a Direction that leave to commence such proceedings is not required, such defendant or respondent be entitled to make no response to such service pending notification of the court’s decision in relation to those proceedings; and that time for acknowledging service or for otherwise responding to such proceedings be deemed extended accordingly.