CHEUNG KIN CHUNG v. DIRECTOR OF HOUSING AND OTHERS

CACV 222/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL APPEAL NO 222 OF 2010

(ON APPEAL FROM HCAL 84 OF 2010)

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J U D G M E N T

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Hon Cheung CJHC :

1. I agree with the judgment of Poon J and the Order he proposes.

Hon Yuen JA :

2. I agree with the Judgment of Poon J.

Hon Poon J :

3. This is an appeal against the decision of Fok J (as he then was) dated 4 October 2010 refusing to grant leave for judicial review.

BACKGROUND

4. The applicant is a resident of a public housing estate.  He now lives in Hung Ngok House, Choi Hung Estate, Kowloon.  He alleged that he had argued with security guards when he lived in Tin Shui Wai who then subjected him to retaliation which had lasted for more than 10 years. Despite his numerous complaints, none of the Director of Housing (“the Director”), the Ombudsman or the police had done anything.  In August 2010, he applied for leave to commence judicial proceedings against :

(1)  the Director for “continuing decisions of failing to act”;

(2)  the Ombudsman in respect of a decision dated 28 October 2009[1] (“the Letter”) and “failure to act”; and

(3)  the Commissioner of Police (“the Commissioner”) for “continuing decisions of failing to act”.

5. He sought an order of certiorari to quash the decisions complained of and an order of mandamus to require all the respondents to investigate his cases thoroughly and damages.

6. Fok J heard the applicant’s oral submissions on 22 September 2010.  In refusing to grant leave, the learned Judge first concluded that on the evidence before him, the applicant had failed to raise a reasonably arguable case in respect of his complaints against each of the Director, the Ombudsman and the Commissioner.  He next found that the applicant had failed to demonstrate any good reason for extending the time for the leave application which was plagued by very serious delay.

DISCUSSION

7. It is now firmly established that no leave to apply for judicial review will be granted unless the applicant can demonstrate that his case is reasonably arguable : Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319, per Li CJ at paras 14 – 17.

(a)  The case against the Director

8. The applicant alleged that the Director had been guilty of bad faith/improper motive, bias and failure to perform duties in respect of his numerous complaints over the years against the security guards, some named and some unnamed, for dereliction of duty including spitting, talking on the phone whilst on duty, smoking whilst on duty, showing poor manners to the applicant and using abusive language against him.  His last complaint by email was dated 24 November 2005.  However, it would appear from the two letters from the Director to the applicant dated 26 August 2010 and 7 September 2010, exhibited as part of the correspondence to the applicant’s affirmations, that the Director had in fact investigated into his complaints and reminded the frontline staff including security guards to be polite and alert in the execution of their duties.  But the applicant remained unsatisfied.

9. As rightly observed by the Judge, with whom I entirely agree, the applicant’s complaints really boiled down to his dissatisfaction that the Director had not done what the applicant would like him to have done. But mere dissatisfaction alone is never sufficient.  The applicant must base his application on established grounds for mounting a judicial review.  That he has failed to do.  For nothing in his evidence before the Judge is capable of showing a reasonably arguable case that the Director had acted with bad faith, improper motive or bias or otherwise unlawfully or in dereliction of duty or irrationally in not acting on the applicant’s complaints.  There is simply no basis whatsoever for the court to exercise its supervisory jurisdiction to interfere with the Director’s discretion as to whether and if so how he should act on the applicant’s complaints.

10. At the hearing before this Court, the applicant sought to adduce and rely on some fresh evidence which according to him showed that a security guard was recently found sleeping while on duty.  He relied on such evidence as an illustration to show inferentially that the Director had failed to deal with his complaints in the past.

11. The alleged sleeping incident happened well after the leave application before Fok J.  The applicant cannot rely on it to support his leave application or this appeal.  In any event, there is no basis to draw the inference from such evidence that the Director had failed to deal with his complaints in the past.  His reliance on such evidence is wholly misplaced.  I will not grant him leave to adduce it.

(b)  The case against the Ombudsman

12. Under section 7(1) of the Ombudsman Ordinance, Cap 397, the Ombudsman may investigate any action taken by or on behalf of the Housing Department if a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action.  The applicant alleged that the Director had delayed in acting on his complaints for over 5 years since June 2005.  That amounted to maladministration but the Ombudsman had failed in her duties to carry out investigation.

13. However, according to the Letter, the Ombudsman refused to arrange for a viewing of the video recording as requested by the applicant because her office’s role was to look into complaints about maladministration in accordance with the Ombudsman Ordinance.  The Ombudsman also pointed out that the applicant had failed to respond to her letters dated 12 May, 9 June and 18 June 2009.  As rightly pointed out by the Judge, the Letter demonstrates that the Ombudsman had taken the view that no relevant complaint about maladministration had been drawn to her attention.  The evidence fails completely to show any reasonably arguable case that the Ombudsman’s exercise of discretion under section 7 is susceptible to judicial review.

14. The applicant also raised allegations of bad faith, improper motive and bias against the Ombudsman, which are wholly unsubstantiated. They cannot possibly ground a judicial review against the Ombudsman’s decision.

(c)  The case against the Commissioner of Police

15. The applicant’s complaints against the Commissioner are very serious indeed.  They include allegations of bias, bad faith, perversion of the course of justice, including a particular incident where the police framed the applicant for a traffic offence, for which the applicant had to appear in the Kowloon City Magistracy on 15 October 2010.  More specifically, some complaints relate to the police’s failure to take action against the security guards about whom the applicant had complained.  In his oral submissions before this Court, the applicant went on to allege that the police had tortured him.

16. These complaints are but bare allegations.  They do not support any reasonably arguable case of judicial review against the Commissioner.

(d)  Delay

17. Under Order 53, rule 4(1), Rules of the High Court, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the time.  The applicant took out the leave application on 23 August 2010.  That was more than 4 ½ years after the Director had, according to his case, failed to act on his last complaint by email dated 24 November 2005; and nearly 10 months after the Letter.

18. The applicant accepted that there was delay.  He explained that the delay was caused by the Registrar’s refusal of his application for waiving the application fees for the judicial review on 28 January 2010.  That is hardly a good reason for the very substantial delay in making the leave application.

(e)  Conclusion

19. For these reasons, the applicant has failed to show that his intended judicial review is reasonably arguable.  The Judge was perfectly correct in refusing leave.  I will dismiss the applicant’s appeal.

Hon Cheung CJHC :

20. The appeal is accordingly dismissed.