莊裕安 v. 張舉能 AND OTHERS

HCAL 679/2023

[2023] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 679 OF 2023

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AND

HCAL 696/202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 696 OF 2023

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________________________

AND

HCAL 924/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 924 OF 2023

________________________

________________________

AND

HCAL 925/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 925 OF 2023

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________________________

(Heard together)

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D E C I S I O N

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A. Introduction

1.  The current summons relates to the four captioned applications for leave to apply for judicial review – though the Applicant himself regards them as his 2^nd to 5^th JR applications, out of a total of six applications issued over a short period of time.  When appropriate below, I shall refer to the 2^nd to 5^th applications together as “the 4 Applications”.

2.  What the Applicant regards as his 1^st application was issued in HCAL 1264/2022 (“1264”), on which I heard oral submissions and which I dismissed by my Decision dated 5 May 2023, [2023] HKCFI 1178. What the Applicant regards as his 6^th application is in HCAL 1243/2023, which, for different case management reasons, I have already allocated to be dealt with by a different judge.

3.  The 4 Applications are currently fixed to be heard by me, all on 20 September 2023.

4.  I fixed the 4 Applications to be heard by me on that date because, as a matter of case management, it seemed to me to be an appropriate and efficient use of Court time to hear in one sitting a number of applications which are all made by the same applicant, and with some overlapping materials. Further, as the 4 Applications are for leave to apply for judicial review, it should not take long for the Applicant to be able to demonstrate – or fail to demonstrate – that each of the applications has reasonably arguable grounds of review.

5.  The current summons was issued on 26 July 2023 and seeks the following orders (in English translation):

(1)  Request different presiding judges to hear the above 4 judicial review applications.

(2)  Or in the event that the Applicant is not able to resist Judge Coleman on his deliberate insistence on hearing the cases, the court is requested to seek the assistance of Amicus Curiae (“Friend of the Court”) to attend the above 4 judicial review applications.

(3)  The above 4 judicial review applications are to be re-fixed on no less than 2 hearing dates.

6.  I heard argument on the summons yesterday, 21 August 2023. At the end of the hearing, I reserved my decision to be handed down later. Though the Applicant made his submissions with the benefit of a Cantonese/English interpreter, he reads and speaks English to a high standard, and expressed that he was content to receive my Decision written in English.

7.  This is my Decision.

B.  Basis of Summons

8.  In his affirmation filed in support of the summons, the Applicant said that:

(1)  The 4 Applications do not involve any legal disputes, as the Applicant only asks the presiding judge to confirm the existing facts and evidence.

(2)  1264, heard by Coleman J, also did not involve any legal disputes, and the only duty was for the presiding judge to simply confirm the existing facts and evidence, which was the same as the purpose and nature of the 4 Applications.

(3)  Because Coleman J erred in deciding 1264, and because the purpose and nature of the 4 Applications are obviously the same, the Applicant has reasonable apprehension and misgivings that Coleman J would hold the same position and legal point of view.

(4)  That would mean the Applicant will not be treated fairly before the law, in violation of Article 25 of the Basic Law.

(5)  Therefore, it is reasonable and necessary to change the presiding judge to hear the 4 Applications.

(6)  If the Applicant is unable to resist my “insistence to intervene” in hearing the 4 Applications, the court should introduce an Amicus Curiae to help provide a fair and just environment for the court and to conduct an effective and fair hearing.

(7)  This is because judges make mistakes, and an Amicus can prevent and help alert the presiding judge from making possible mistakes in court.

(8)  The appointment of an Amicus does not raise any issue of possibility favouring the Applicant.

(9)  Further, the fact that the 4 Applications need to be heard within one day does not allow enough time for them to be dealt with, rendering it highly possible that the presiding judge has already established a position and intends to deal with the cases sloppily.

9.  At the hearing, the Applicant made lengthy submissions further in support of the summons.  With respect, many of the submissions made by the Applicant were more directed to the merits of his applications for leave to apply for judicial review in the 4 Applications, rather than to the necessary and appropriate case management decision to make as to who should hear those 4 Applications, and by implication who should not hear those 4 Applications.

10.  Throughout his submissions, the Applicant sought to emphasise that his complaints relate to four emails which he sent to the Chief Executive (“CE”) and the Secretary for Justice (“SJ”), which he said identified prima facie evidence of breaches of various articles of the Basic Law by a number of persons, including various senior members of the Judiciary.  This was partly to remind me that the Applicant’s intended challenge in 1264 was to the CE’s and the SJ’s failure to respond directly to his emails, each of which email was there said to be in respect of the Applicant’s own “open accusation” – made in his two uploaded YouTube videos on 3 and 9 February 2022 – against certain judges of the Hong Kong SAR for “breaking the law knowingly and violating the Basic Law”.

11.  Nevertheless, focusing less on the potential merits of the 4 Applications and more on the reasons why I should or should not hear them, I think I can fairly summarise the Applicant’s points as follows (and, indeed, at the hearing, the Applicant accepted the following as being a fair summary of at least the first two points):

(1)  Because I decided 1264 against the Applicant, and because the nature of the case raised by the 4 Applications is the same as in 1264 (even if the purpose varies between them), there is no point in my hearing the 4 Applications as the result will inevitably be the same. If I did not think the four emails required a reply from the CE, then logically I would not think there should be a public hearing by LegCo (one of the requests in the 4 Applications).

(2)  As a matter of fairness, a different judge should be allocated to deal with each different application amongst the 4 Applications, so as to guard against mistakes being made by a single judge.

(3)  Because the CJHC has written to the Applicant stating that the 4 Applications are listed to be dealt with by me, there is a reasonable basis to assume that I am being instructed by the CJHC, and will act on those instructions, to decide the 4 Applications in a unified manner reaching the same result.

(4)  Because the Applicant does not have Counsel, fairness requires a third party to be present in the case, which is fair to the Applicant and to the Respondent(s).  This is particularly necessary when the cases might ultimately reach the Court of Final Appeal, and almost all Judges who might hear the appeals are themselves Respondents.

12.  The Applicant also sought to place reliance on the way in which a number of previous applications made by him had been dealt with.  For example, a number of applications were heard by Chow J (as Chow JA then was) on one hearing date, and the applications all resulted in the same dismissal.

C.  Analysis

13.  It is first helpful to identify why the 4 Applications have been listed to be dealt with by me.  That is because I am the Judge in charge of the Constitutional and Administrative Law List, in which the 4 Applications have been issued.  Ordinarily (and leaving aside what might be called non-refoulement claims), I deal with all cases issued in that List, unless I choose to allocate them to another Judge.

14.  There is, therefore, nothing “suspicious” about the fact that the 4 Applications are currently listed to be dealt with by me, even though I have also dealt with 1264 (which was, of course, also issued in the same List).  Nor does the fact that the CJHC has pointed out to the Applicant that the 4 Applications have been listed to be dealt with by me give rise to any proper suggestion that I have been given, or would follow, any instruction to deal with the 4 Applications in a “unified” way, so as to reach the same result.

15.  Though not entirely clear, the Applicant’s main submission essentially might amount to a suggestion that I am in a position of apparent bias.  If I were to agree with that submission, it would be my duty to recuse myself.  Similarly, if I were to disagree with that submission, it would be my duty not to recuse myself.  I see no merit in the submission.

16.  The relevant test for apparent bias is settled, and does not require citation of authority.  It is an objective test, namely whether a fair-minded informed observer, having considered the relevant facts, would conclude that there is a reasonable apprehension or real possibility of bias.  The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the decision-maker has not brought or will not bring an impartial mind to bear on the adjudication of the case.

17.  It seems to me that the Applicant’s submission that the result in the 4 Applications (if heard by me) is inevitable is perhaps based upon a misconception as to the very nature of judicial review and what I decided in 1264.  As to the latter point, it is also important to note what I did not decide:

(1)  First, I did not decide whether the accusations or materials provided by the Applicant in his four emails did or did not amount to prima facie evidence of the alleged breaches of the Basic Law.  Indeed, the Applicant appeared to recognise that he was not asking the Court to see if the four emails were true or false, or right or wrong.

(2)  Secondly, I did not decide that I would pay no attention to what was in the four emails (in the sense the Applicant has suggested).

(3)  What I did decide was that the Applicant had failed to identify any reasonably arguable grounds of review as would justify the grant of leave to apply for judicial review of the actions or conduct of the CE and SJ of which the Applicant wished to complain in that action.

18.  As I also took pains to explain to the Applicant during the hearing, in its judicial review jurisdiction the Court exercises a supervisory jurisdiction over administrative action.  The focus is on the integrity of the decision-making process.  An applicant for leave to apply for judicial review is required by the Rules of the High Court to identify (a) the impugned decision, judgment or order, (b) the public law grounds of the intended review, and (c) that those grounds are reasonably arguable.  If there is no identified decision the subject matter of the intended challenge, and/or there are no identified grounds of review, and/or the grounds identified are not reasonably arguable, then leave to apply for judicial review will be refused.

19.  In 1264, I held that the Applicant had failed to identify any reasonably arguable grounds of intended review with any reasonable prospect of success.  Hence, I dismissed the application for leave to apply for judicial review.

20.  But, what was decided in 1264 is not decisive of the 4 Applications.  Further, there is no proper basis for thinking that I could not now bring an open mind to the determination of each of the 4 Applications. Nor is there any proper basis for thinking that hearing the 4 Applications in one Court day would necessarily lead to the same decision on all applications.  Each application is different, and will be dealt with on its own particular circumstances and merit.  In short, I do not accept that there could be any reasonable apprehension of bias.

21.  If the Applicant was not actually complaining of apparent bias, then he might have been merely pointing out that having decided 1264 as I did, the necessary logical consequence is that I am bound to decide the 4 Applications in the same “unified” way.  That seems to be because the Applicant himself accepts that the underlying premise for all of his various applications is the same, albeit that he says that the purpose of each of them might be slightly different, and each has a different target (in the sense of different respondents).  Leaving aside whether that amounts to abuse of the process, each application will in fact be dealt with on its own particular circumstances.

22.  Further still, it seems to me to be completely inappropriate for the Applicant to seek up to four different judges to determine the 4 Applications, particularly when it is his case that the nature of the 4 Applications is similar even though the exact purpose may differ.  That smacks of naked forum shopping (both in the sense of avoiding certain Judges, as well as in the sense of hoping for a different judicial mind as might reach a different judicial result).  The application is not made any more appropriate by the Applicant’s stating that he has lost confidence in the judicial system and judicial officers.

23.  Lastly, I see no reason to appoint an Amicus Curiae.  First, as with all applications for leave to apply for judicial review, the 4 Applications are in the first instance made on an ex parte basis.  Though various persons have been named as putative respondents, unless and until leave to apply for judicial review is granted there is no actual respondent to any application.

24.  As already stated, the burden is on the Applicant in each of the 4 Applications to identify the subject-matter of the intended challenge, and reasonably arguable grounds of review justifying the grant of leave to make that challenge.  The Applicant either can and will satisfy that burden, or he cannot and will not.

25.  It is open to the Applicant to seek legal advice and/or representation to assist him with his intended challenge.  Indeed, he has done so by his various applications for the grant of legal aid, all of which (he told me) have been refused.  Fairness does not require submissions from any third party Amicus.  If the decision goes against the Applicant on any of the 4 Applications which he thinks results from a mistake by the judge, that can be addressed.

26.  Lastly, I see no unfairness in hearing the 4 Applications in the course of one sitting day.  As already stated, the burden is on the Applicant to identify reasonably arguable grounds of review in relation to each intended impugned decision.  If there are reasonably arguable grounds, he ought to be able to identify them, with some precision, in relatively short order. Court resources are scarce, and it is not open to litigants to demand or require unreasonable Court time which may adversely impact the interests of other litigants.

D.  Result

27.  In short, for the above reasons, I see no reason to change my prior case management decision to deal with the Applicant’s applications for leave to apply for judicial review in each of the 4 Applications on the court time already set aside on 20 September 2023.

28.  Therefore, I dismiss the summons dated 26 July 2023 and the applications made by it.

29.  I make no order as to costs.