林進傑 v. 申訴專員

HCAL 1271/2022

[2022] HKCFI 3843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1271 OF 2022

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D E C I S I O N

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A.  Introduction

1.  By a Form 86 filed on 17 November 2022, the Applicant seeks leave to apply for judicial review of the ‘decision’ of the Ombudsman to contact the Traffic Complaints Unit (“TCU”) in respect of the Applicant’s complaint, which was not a complaint about the TCU itself.

2.  Having considered the materials available to the Court, I consider that this application could be disposed of on paper.

B.  Background Facts

3.  In October 2021, the Applicant made a complaint to the TCU that some part of the road surface near a light rail station in Tin Shui Wai was uneven and would easily accumulate rain water. The TCU initially thought that area was under the jurisdiction of the Highways Department but that department denied it. The Applicant suggested that the appropriate entity to handle the matter would be the Kowloon-Canton Railway Corporation (“KCRC”) since the area was near a light rail station. The KCRC initially denied that that area was within its jurisdiction. But later correspondence with other government authorities seemed to suggest that the area was indeed within the KCRC’s jurisdiction.

4.  In August 2022, the Applicant made a complaint to the Ombudsman that the KCRC denied jurisdiction over the relevant area, resulting in that part of the road surface remaining uneven and continuing to collect rain water. The Applicant exhibited to the complaint form submitted to the Ombudsman some correspondence between himself and the TCU. Amongst them includes an email in which the TCU relayed the KCRC’s denial of jurisdiction.

5.  In September 2022, the Applicant realized that the Ombudsman had made enquiry with the TCU. The Applicant said the Ombudsman had exceeded its powers by making enquiry with the TCU, an entity which was not the subject of the Applicant’s complaint.

C.  The Intended Challenge

6.  In the Form 86, the Applicant identified as the target of the proposed review the Ombudsman’s act or decision on 31 August 2022 to contact the TCU, despite its not being an entity against which he complained, before launching an investigation.

7.  In the supporting affirmation, the Applicant made references to some legislative history of the Ombudsman Ordinance Cap 397, or its amendment in 2001 (“Ordinance”). But he did not explain how those materials could show that the Ombudsman had exceeded its powers under the Ordinance (apparently referring only to a distinction between potential mediation and investigation).

D.  No Merit in Intended Challenge

8.  The Applicant’s complaint to the Ombudsman, as he himself set out in the complaint form, was that the KCRC denied to the TCU that it (the KCRC) had any jurisdiction over the relevant area. In that light, it can easily be seen that enquiry with the TCU would be logical and relevant to establish the facts as alleged by the Applicant and the surrounding circumstances.

9.  The Applicant did not point to any provisions in the Ordinance or explain why the Ombudsman should not contact or collect information from anyone except from the entity against which the complaint was made. On the contrary, the powers given to the Ombudsman are broad. For example, before a formal investigation is to be taken, section 11A provides that:

For the purposes of determining whether to undertake an investigation, the Ombudsman may conduct such preliminary inquiries as he considers appropriate.

10.  There is nothing in the Ordinance to suggest that the Ombudsman should only make enquiry with the entity against which complaints were made. Indeed, common sense and logic demands that the Ombudsman would or may have to collect information from beyond the entity the target of complaint in order to obtain a fuller or fairer picture of the material circumstances.

11.  Though he does not actually raise this as a basis of complaint in these proceedings, but in case the Applicant thinks that the Ombudsman is limited to contacting or making enquiries with only those bodies identified in the Ordinance as being subject to Ombudsman oversight, that is mistaken.

12.  I would also note that, following the Applicant’s request for re-evaluation of the Ombudsman’s initial view that the complaint would not be followed up further, the Ombudsman has by letter dated 26 September 2022 notified that there would be an inquiry/investigation on the complaint. Hence, it seems the real substance of the Applicant’s complaint either has been or will be addressed.

E.  Conclusion

13.  This application for leave to apply for judicial review does not give rise to any reasonably arguable grounds for review.

14.  Therefore, the application is dismissed, with no order as to costs.