MR. CHOW KIN HANG ALI v. MASTER WONG OF COURT OF APPEAL

HCAL 766/2024

[2024] HKCFI 1346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 766 OF 2024

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D E C I S I O N

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A.  Introduction

1.  The Applicant in these proceedings was also the applicant in a previous application for leave to apply for judicial review, HCAL 978/2023. That application was based upon a fundamental misunderstanding of Order 59 rule 6 of the Rules of the High Court (“RHC”), and I dismissed it by my Decision dated 28 June 2023, [2023] HKCFI 1681 (“Previous Decision”).

2.  The putative respondent to those proceedings was a Registrar of the Court of Appeal, just as the putative respondent to these proceedings is a (different) Registrar of the Court of Appeal (“Registrar”). Indeed, both applications arise out of the same broad underlying circumstances, where the Applicant is the appellant in civil appeal proceedings CACV 99/2023, on an intended appeal from DCEC 1413/2019.

3.  Having considered the materials, I am satisfied that it is appropriate to deal with this application on the papers. This is my Decision.

B.  The Subject-Matter of the Intended Challenge

4.  By his Form 86 dated 14 May 2024 filed in these proceedings, the Applicant seeks leave to apply for judicial review so as to challenge what was said by the Registrar in a case management letter dated 2 May 2024 (“Letter”), relating to CACV 99/2023.

5.  In the Letter, the Registrar referred to: previous directions given by the Court of Appeal dated 16 April 2024; the numerous documents being the 2^nd to 9^th “Supplementary Notices” filed by the Applicant on 17 April 2024; and the draft appeal bundle lodged by the Applicant on 17 April 2024. By reference to those documents, the Registrar pointed out (in summary):

(1)  The purpose of filing the Supplementary Notices is not clear, and they are not all comprehensible.

(2)  The Supplementary Notices contained numerous references to cases/passages, with various submissions and complaints made by the Applicant, which are convoluted and difficult to follow.

(3)  As the Court had previously explained in directions dated 27 April 2023, a notice of appeal should be a concise document setting out clearly and succinctly the reasons why the Court of Appeal should interfere with the judgment of the court below.

(4)  The Supplementary Notices do not comply with the requirement that the notice of appeal must not be prolix, unfocused or canvas evidence or submissions at length, and they will not be considered by the Court of Appeal.

(5)  As a result, the Supplementary Notices should not be included in the draft appeal bundle.

(6)  There are various other irrelevant documents included in the draft appeal bundle.

(7)  The Court considers the draft appeal bundle lodged by the Applicant as not being a properly prepared bundle, and it will not be accepted.

(8)  To avoid further delay, the Respondent’s solicitors are to prepare a fresh draft appeal bundle in accordance with the Court’s previous directions – first by providing a draft to the Applicant, who shall have 14 days after service of the index to provide his comments to the court and the Respondent.

(9)  Thereafter, the Court will give further directions on the matter.

C.  The Intended Challenge

6.  The Applicant says that he challenges the Registrar’s specific procedures as violating the Applicant’s due process rights and revoking Order 59 (of the RHC).

7.  The Applicant first suggests that the test for the grant or refusal of leave to apply for judicial review is that which was set out in a case in 1992, namely for the judge to ask himself whether the material discloses what might on further consideration turn out to be an arguable case. (I shall deal below with whether or not that is the correct test.)

8.  Though it is far from readily comprehensible, the Applicant then apparently seeks to make the following points:

(1)  The Registrar expressed his personal preferences, and failed to exercise his duty.

(2)  The Registrar “departed from the normal judicial norm” as regards what amounts to prolixity and complexity.

(3)  The Registrar has demonstrated his special hatred.

(4)  The Registrar’s “faulty acts are in continuous courses of conducts. No single faulty act stood alone but double faulty acts are found” (sic).

(5)  The Applicant “can of course have his amended due process arguments in his Supplementary Notes” (sic).

(6)  The Registrar’s collective procedures were to revoke Order 59.

(7)  The Registrar has gone further than simply revoking Order 59, and revealed that he wants to reverse the disadvantages of the defendant (the Respondent to the appeal) who has chosen not to file a Respondent’s Notice.

(8)  The Registrar has reversed the statement made by me in my Previous Decision at §5(4) and (5), where I pointed out the consequence of a respondent to an appeal not filing a Respondent’s Notice.

9.  Leaving aside the ad hominem criticism of the Registrar, the main thrust of the intended challenge seems to be that the Registrar has somehow acted contrary to the powers provided for in Order 59 – though it can be noted that the Applicant has failed to identify the particular powers in that Order 59 which he alleges the Registrar has departed from or “revoked” by any particular statement in the Letter.

D.  The Correct Test

10.  As a starting point, I would point out that the Applicant has incorrectly asserted the test applicable on this application, apparently by reference to an old case citing an old test.

11.  It is now trite that an applicant who seeks leave to apply for judicial review must clearly identify public law grounds of review, which the applicant can show to be reasonably arguable with a realistic prospect of success.

E.  Any Merit in the Intended Challenge?

12.  The answer to the question posed in this heading is ‘no’.

13.  First, what I said in §5 of my Previous Decision does not assist the Applicant in any way. In that paragraph, I was explaining the fundamental misconception underlying the Applicant’s previous application. There, I simply stated what were the consequences of a respondent to an appeal filing or not filing a respondent’s notice. That has nothing whatsoever to do with either case management directions relating to an appeal bundle, or whether a notice of appeal complies with the requirements.

14.  Secondly, as it happens, the Applicant has overlooked what I said in §7 of my Previous Decision, where I pointed out the ‘decision’ of the Registrar is unlikely even amenable to judicial review, because judicial review is a supervisory jurisdiction exercised by the High Court, not of the High Court. The Registrar is entitled to make case management decisions, and they are not subject to some sort of appellate review by a Court exercising its judicial review jurisdiction.

15.  Thirdly, the Registrar is perfectly properly empowered and entitled to form the view that a draft appeal bundle lodged by a party to an appeal is not properly prepared. That is part of the Registrar’s job. Here, the Applicant was proposing to include within the bundle both (1) 8 so-called Supplementary Notices, and (2) other apparently irrelevant documents. It is not open to parties to an appeal simply to deluge the Court of Appeal with documents which are unnecessary or irrelevant to the disposition of the appeal. Quite simply, the Applicant’s assertion that he can “of course” include and rely on those documents is mistaken.

16.  Fourthly, the Registrar’s view of the Supplementary Notices is understandable, and in my view correct. Plainly, the various Supplementary Notices (which the Applicant appended to this application) do not satisfy the requirements that a notice of appeal should be concise and succinct, and should not be prolix or unfocused, and should not canvas evidence or submissions at length. It is bad enough that the Applicant apparently seeks to rely not just on a notice of appeal but a total of at least 8 Supplementary Notices, but even had the totality of the content of those documents been included in one document, it would have failed to satisfy the necessary requirements.

17.  Fifthly, there is clearly no prejudice to the Applicant arising from the Registrar’s direction – made so as to avoid further delay in the appeal brought by the Applicant – that the task of producing a fresh draft appeal bundle for the court’s consideration is given to the Respondent to the appeal. Indeed, the directions specifically permit the Applicant to provide his comments on the index of the draft to be provided by the Respondent, and the Registrar has said expressly that it is only after those steps have been taken that the court will give further directions.

18.  Sixthly, in other words, other than identifying that so far a draft appeal bundle has not been properly prepared, no final direction or decision has been made by the Registrar. Therefore, the Letter essentially constitutes only an intermediate expression of the Registrar’s case management views in any event. For that additional reason, it is not amenable to any challenge.

F.  Result

19.  It is unfortunate that the Applicant has failed to see that the Registrar was actually trying to assist him in producing a compliant set of documents, so that his appeal could be properly and efficiently considered by the Court of Appeal in a timely manner. The criticisms and complaints made by the Applicant – expressed in unnecessarily strong and intemperate terms – are entirely misplaced.

20.  The Applicant has failed to identify any public law grounds of review which are reasonably arguable with any realistic prospect of success.

21.  The application for leave to apply for judicial review is dismissed.

22.  I have dealt with this matter on the ex parte basis upon which the application was made. Therefore, I make no order as to costs.

23.  However, I would point out that this utterly unmeritorious application has not been made without expense. There has been the expenditure of the Court’s time and resources in dealing with it.