A v. ADMINISTRATIVE APPEALS BOARD

HCAL 221/2017

[2018] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 221 OF 2017

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D E C I S I O N

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1.  This is an application for leave to appeal to the Court of Appeal.

2.  On 4 September 2018, this Court refused to grant the applicant leave to apply for judicial review of the decision of the Administrative Appeals Board (the AAB) in Administrative Appeal No. 18/2016 for two reasons.  First, there had been undue delay in making the application for judicial review.  The applicant was requested to address the Court on this issue which she did in the oral hearing.[1]  There had been a multiplicity of actions and related proceedings over a protracted period in relation to the underlying subject of the judicial review, which concerned the disclosure to the applicant’s parents of the prosecution bundle against the applicant for credit card fraud for which she was convicted on her own plea.  Secondly, the grounds for review were not reasonably arguable and the AAB’s decision did not offend any principles of public law or fairness.[2] 

3.  On 18 September 2018, the applicant took out a summons to apply for leave to appeal this Court’s judgment.

4.  It is required by Order 59, rule 2B of the Rules of the High Court, Cap 4A, that where a party seeks leave to appeal to the Court of Appeal, leave must first be sought within 14 days from the judge of the Court of First Instance or master whose judgment or order is being challenged.  This Court issued directions to the applicant dated 21 September 2018, delineating the requirements of Order 59, Rule 2B and setting out the procedures to be followed in making and considering the application.  The papers that had been initially filed by the applicant with the Court were treated as the written submission in support of the application for leave to appeal.  As noted in the directions, the Court has decided to determine the application on the papers. 

5.  In the papers filed by the applicant with the Court, she lists four grounds of appeal, supported by a lengthy and rambling commentary of her case in a confused format.  She makes no attempt to focus her consideration on public law principles but rather condescends to rearguing her case.  This is the second judicial review that she has instituted in relation to this case and she has clearly failed to heed the remarks of the Court of Appeal in her unsuccessful appeal of the first judicial review.[3]

6.  The first ground is that section 58 of the Personal Data (Privacy) Ordinance, Cap 486, did not apply to the present case.  The second ground is that the Person Bound did not have the consent of the applicant to release her personal data.  The third ground is that this Court breached the anonymity order of the applicant.  The fourth ground is that the applicant filed the present judicial review proceedings within the time period of 3 months.

7.  Of the first ground, the AAB applied section 58(2) to the particular facts and circumstances of the case.  Of the second ground, it was open to the AAB to determine the issue of consent as it did.  Of the third ground, which does not arise from the decision under challenge, the applicant complains that this Court has breached the anonymity order made in this case by mentioning the civil action that the applicant brought in the District Court in relation to the same parties and the same subject matter.  The applicant had not disclosed these proceedings to the Court.  In the proceedings, the applicant, who was the plaintiff, was designated as “X” and was not referred to by name.  It should be noted that this Court raised with the applicant the issue as to the appropriateness of an anonymity order given the nature and history of the various proceedings.  See Re BU [2012] 4 HKLRD 417.  Of the fourth ground, the applicant failed to act promptly as required by Order 53, rule 4(1) of the Rules of the High Court.

8.  None of these grounds have any merit, and the application is refused.

9.  It should be noted that by virtue of Order 59, rule 2B (3), where a Court refuses an application for leave to appeal, a further application can be made to the Court of Appeal within 14 days from the date of the refusal.