梁淑微 v. 第一及第二答辯人之代表律政司

HCAL 127/2024

[2024] HKCFI 601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 127 OF 2024

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D E C I S I O N

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A.  Introduction

1.  This application for leave to apply for judicial review of two decisions of a District Court Judge is fundamentally misconceived.

B.  Background

2.  The Applicant was the claimant in DCEO 5/2022, proceedings brought in the District Court pursuant to the Disability Discrimination Ordinance. The three respondents to that claim were: (1) the Secretary for Justice on behalf of the Commissioner of Police; (2) the Director of Legal Aid; and (3) the Hong Kong College of Technology.

3.  By decision dated 17 February 2023, HHJ Ko acknowledged that the claimant had the right for judgment in light that the 1^st and 2^nd respondents had failed to file a Notice of Response within the extended time for doing so, but in light of their prior application to strike out the proceedings ordered the strike out application to be dealt with first, and refused to give an order for judgment in favour of the claimant. By decision dated 27 March 2023, HHJ Ko refused the claimant leave to appeal.

4.  Though not entirely clear from the submissions made by the Applicant, it seems that the Applicant then renewed her application for leave to appeal to the Court of Appeal (“CA”), in CAMP 143/2023, apparently made on 3 April 2023. The lack of clarity arises from the fact that the Applicant suggested in submission that those proceedings related to and sought an appeal from a decision of the District Court dated sometime in December 2023, which is chronologically impossible and which she herself described as “odd”.

5.  In any event, by decision dated 9 August 2023, HHJ Ko struck out the Applicant’s claim brought against all three respondents, because the Notice of Claim failed to disclose any reasonable cause of action and was scandalous, frivolous or vexatious or may prejudice, embarrass or delay any fair trial of the action, or otherwise was an abuse of the process of the Court. He also held that the frivolous nature of the claim justified an award of costs against the Applicant as claimant.

C.  The Application

6.  By Form 86 dated 11 January 2024, the Applicant seeks leave to apply for judicial review to challenge the decisions dated 17 February 2023 and 9 August 2023, on the basis that they are “void decisions, because their conduct contravened the relevant legislation”. By way of relief, the Applicant seeks:

(1)  Certiorari: to overturn all the decisions, because it is not provided in the related legislation, including the violation of PD-SL8.

(2)  Mandamus: the Chief Judge shall proceed in accordance with the protected rights under the Disability Discrimination Ordinance (“DDO”) and section 73C(8) of the District Court Ordinance (“DCO”).

(3)  Declaration: to proceed with the equal opportunity case in accordance with the right to litigation and the right to a trial conferred by the related legislation, otherwise it will be a violation of human rights.

(4)  Damages: compensation for discrimination by the various defendants, the loss suffered and related punitive compensation.

7.  In her affirmation in support of an application, the Applicant stated:

On 8 November 2022, I made an application personally to initiate a joint equal opportunity case at the District Court against the three defendants (D1 being the Commissioner of Police, D2 being the Director of Legal Aid and D3 being the Hong Kong College of Technology) in accordance with the [DDO] for the encroachment of my human rights or interests, namely discrimination against me, malicious and unreasonable treatment to me. However, DOJ has been delaying the case, nor could they reply in accordance with the law and they even applied to strike out my case so that the action could not proceed in accordance with the relevant legal procedures. This is above section 73C(8) of the [DCO], namely the decisions made on 17 February and 9 August 2023 were not made by the Chief District Judge and were unlawful, and did not proceed in accordance with the [DDO], PD SL8, and the [DCO].

8.  I granted the Applicant an oral hearing, as she requested one in her Form 86. At the oral hearing, the Applicant essentially repeated orally the various points made above, including specifically repeating and slightly enlarging upon the four points raised in the Form 86. She also apparently suggested or submitted that:

(1)  HHJ Ko imitated or impersonated the Chief Judge of the District Court, and that might be a crime.

(2)  DOJ has overridden section 73C(8) of the DCO and has not dealt with her case.

(3)  The hearing on 17 February 2023 was a false hearing, not conducted according to the right legal procedures, and hence unfair.

(4)  The CA has also not provided her with any hearing, and she has not been given the chance orally to explain the background and all the details of the case.

(5)  The CA is yet to make a decision on her application in CAMP 143/2023.

(6)  She is entitled to damages for the suffering that she has borne out of discrimination and also unfair treatment, and the damages should include punitive compensation.

(7)  The reason for applying for leave to apply for judicial review is that her legal rights have not been met, she did not have a fair trial, and the District Court judge did not do things according to the correct legal procedures.

(8)  She continues to suffer from discrimination.

D.  No Merit in the Application

9.  The Applicant’s intended challenge is to two decisions made by a District Court Judge. However, as I sought to explain to the Applicant in the oral hearing (probably in vain), this Court does not sit as an appellate court from decisions made in the District Court. Quite simply, this Court does not have supervisory judicial review jurisdiction over decisions made by judges of the District Court.

10.  As the Applicant herself already knows – because she is apparently sought leave to appeal from at least the first of those two decisions – her remedy lies in the right to seek to pursue an appeal from those decisions. The fact that there is an alternative remedy is another reason why leave to apply for judicial review would ordinarily not be granted.

11.  Insofar as the Applicant suggests that there has been some procedural error, that suggestion can be made in any application for leave to appeal and/or on any appeal. But, in any event, other than merely asserting failure to follow the correct procedures in the DDO (with no particular provision specified), section 73C(8) of the DCO, and PD SL8 (with no particular provision specified), the Applicant has failed to identify what procedures were not correctly followed.

12.  It is not the role of the Court to try to identify for itself what particular provisions are said to have been incorrectly followed or not followed. Further – as I also sought to explain orally to the Applicant – nor is it the role of the Court to answer general questions raised by an applicant for leave to apply for judicial review, or to offer legal advice.

13.  Further, the Applicant’s apparent belief that only the Chief Judge of the District Court (and not any other Judge of that court) could have dealt with her equal opportunities case is simply mistaken. Nothing in the practice direction or section 73C(8) of the DCO says so. The District Court Equal Opportunities Rules Cap 336G were made under section 73C, and the particular subsection 73C(8) simply identifies what is to occur if there is a conflict between those rules and any other rules relating to District Court proceedings. In any event, as a matter of fact, the Judge who decided these matters is the Chief Judge of the District Court.

E.  Result

14.  There being no reasonably arguable ground of review with any realistic prospect of success, the Applicant’s application for leave to apply for judicial review is dismissed.

15.  The application was dealt with on an ex parte basis, and I make no order as to costs.