CHOW KIN HANG ALI v. SECRETARY FOR JUSTICE for and on behalf of COMMISSIONER OF POLICE

CAMP 126/2022

[2022] HKCA 1814

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 126 OF 2022

(ON AN INTENDED APPEAL FROM DCPI NO 514 OF 2018)

_____________________

_____________________

___________________

J U D G M E N T

___________________

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

1.  This is the plaintiff’s renewed application, made out of time on 22 April 2022, for leave to appeal a decision of His Honour Judge Leong (“the judge”) given on 29 June 2021 (“the Discovery Decision”) refusing his application for specific discovery of audio recordings of 999 calls he had made on 17 March 2015.

2.  On 31 January 2022, the judge refused leave to appeal (“the Leave to Appeal Decision”).

Background

3.  Very briefly, the matter arises in this way.

4.  On17 March 2015, the plaintiff was involved in an incident with another person (“Lee”) on the MTR at Prince Edward Station.  The plaintiff called the police and followed Lee to Yuen Long, where some police officers arrived and made inquiries with both of them.  Subsequently, both the plaintiff and Lee were brought to a police station, and the plaintiff was also taken to a hospital.

5.  The plaintiff was not charged, and eventually Lee was bound over in a magistrate’s court.

6.  The plaintiff complained about the way he was treated by the police officers to the Complaints Against Police Office (“CAPO”), which after investigation, reported that the complaints were unsubstantiated. 

7.  The plaintiff also issued a personal injuries action in the District Court in 2018 against the Secretary for Justice for and on behalf of the Commissioner of Police.  He claims the way he was treated by the police officers led to, among other things, his suffering mental illness.    

Application for specific discovery

8.  In the course of the personal injuries action, the plaintiff applied for discovery of audio recordings of 999 calls he had made on 17 March 2015.

9.  On 13 January 2021, the defendant filed an affirmation of Detective Inspector Ng Pak-wai Victoria (“DI Ng”), the officer in charge of District Investigation Team 9 of Mongkok Police Station.  She affirmed that she was authorised to make the affirmation on behalf of the defendant and that unless otherwise stated, the facts and matters deposed to in the affirmation were either within her personal knowledge, or were derived from office files and records and sources to which she had access, and were true to the best of her information and belief.      

10.  At paragraph 13 of DI Ng’s affirmation, she deposed that the audio recordings the plaintiff sought were no longer available as records in 999 call centres were only kept for 62 days.  The plaintiff did not accept this assertion. 

The judge’s Discovery Decision

11.  On 29 June 2021, the judge gave an oral decision refusing the plaintiff’s application, for reasons set out in the judge’s Leave to Appeal Decision. 

12.  Essentially, the reasons were as follows:

(a) the defendant had served an affirmation stating that the requested audio recordings were not in the defendant’s possession, custody or power as they were only kept for 62 days, and although the plaintiff disputed that, no reasons were given in support of his challenge;

(b) the plaintiff alleged that the 999 audio recordings were relevant to his dispute of the CAPO findings, but the personal injuries action concerned police treatment before the CAPO investigations began;

(c) there was no need for such discovery for the fair disposal of the cause or matter, or to save costs.

Application for leave to appeal

13.  The plaintiff applied on 12 July 2021 for leave to appeal the judge’s Discovery Decision.  As mentioned above, the application was refused on 31 January 2022.

Renewed application for leave to appeal out of time

14.  Under the rules of court, where a lower court judge refuses leave to appeal, a litigant who wishes to renew an application for leave to appeal may do so in the Court of Appeal within 14 days of the lower court judge’s refusal. 

15.  However, the plaintiff did not make an application to the Court of Appeal for leave to appeal by the deadline of 14 February 2022.  It would appear that instead, he made an application to the Court of Final Appeal (“CFA”) on 2 March 2022, the date referred to in a letter to him from the Registrar of the CFA dated 11 March 2022 refusing his application.

16.  Subsequently, on 22 April 2022, the plaintiff filed a summons in the Court of Appeal renewing his application for leave to appeal, which was out of time.

Discussion

17.  In considering whether to grant an extension of time, the court will consider the following factors: (1) the length of the delay; (2) whether there were any satisfactory reasons for the delay; (3) the merits of the intended appeal; and (4) whether the other party will suffer any prejudice if an extension is given (although the absence of prejudice does not mean that an extension should be granted).

18.  As for factor (1), in the present case, the deadline was 14 February 2022, but the plaintiff did not file a summons in the Court of Appeal until 22 April 2022. 

19.1  As for factor (2), the plaintiff said in his affirmation that his delay was due to the pandemic.  As he did not say that he had personally suffered from COVID, we would presume that he only meant the pandemic generally. 

19.2  In this regard, we note that there it was not until 2 March 2022 that he made an application to the CFA.  This was already 2 weeks after the deadline.   

19.3  When the Registrar of the CFA wrote to him on 11 March 2022, the Court’s General Adjournment Period was in force.  This lasted until 12 April 2022. 

19.4  Whilst one can understand why he did not file the summons between 11 March 2022 and 12 April 2022, there is no reason why he did not do so between 14 February 2022 and 2 March 2022, or between 12 April and 22 April 2022.  Accordingly, we do find the reasons he gave for the delay unsatisfactory. 

20.  In any event, as for factor (3), we find there are no merits in his proposed appeal.  It is well-established law that the affirmation or affidavit of a party deposing to the documents disclosed on discovery is conclusive, “unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by [that party], or by any admission by him in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state”¹. In the absence of any of the matters above, given that DI Ng has deposed in her affirmation that the defendant no longer has the recordings, the judge exercised his discretion correctly in refusing the application for the reason set out in paragraph 12(a) above.  It is not necessary for us to consider the other reasons.

Order

21.  For the reasons set out above, the proposed appeal has no merits, and thus it would serve no purpose to give the plaintiff an extension of time.  The summons filed on 22 April 2022 is dismissed with an order nisi that the plaintiff should pay the defendant’s costs.

22.  Pursuant to Order 59 rule 2A(8) Rules of the High Court, as the application is totally without merit, we would also order that no party may apply for the determination to be reconsidered at an oral hearing inter partes.