YIK PING CHUI v. OMBUDSMAN, OMBUDSMAN OFFICE

HCAL 2397/2023

[2024] HKCFI 137

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2397 OF 2023

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D E C I S I O N

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A.  Introduction

1.  In her Form 86 dated 29 December 2023, the Applicant names the Ombudsman as the proposed respondent to this application for leave to apply for judicial review. The identified target of the intended challenge relates to the Applicant’s complaint about a step taken by the Equal Opportunities Commission (“EOC”), and the Ombudsman’s decision not to take up the matter (“Decision”).

2.  That target Decision was stated in the Form 86 to be:

EOC’s open website design as their internal affair not affecting service to the public dated 6 Sep 2023.

3.  The relief sought in the Form 86 is (1) an explanation of that judgment or decision and (2) discontinuation of discrimination.

4.  Having considered the application and its supporting affirmation, I can deal with this matter on the papers. This is my Decision.

B.  Ombudsman’s Decision

5.  By email dated 6 September 2023, the Ombudsman’s office responded to the complaint made by the Applicant, in the following terms:

[1.] We refer to your emails of 14 August 2023 at 19:13 and 19:17. You stated that the Equal Opportunities Commission (“EOC”), in its reply of 14 August 2023, had rejected to answer your question, raised in your emails of 27 July, as to when it had made the decision to turn all pages on its website into black and white.

2. We note that in the said reply, EOC stated that it had turned its website into black and white from 30 November to 8 December 2022. As regards your inquiry about when the decision was made to turn the colour of its website black and white and your request for a log of the changes in the colour from late November to early December 2022, EOC stated that it was not obliged to provide you with such information.

3. EOC has informed you when its website had turned into black and white. When such decision was made was EOC’s internal affair and had no impact on its service to the public. As such, we consider EOC’s non disclosure of when it made such decision did not amount to maladministration. We will not take up the matter.

4. In fact, the above development stemmed from your complaint against EOC in relation to its website having turned black and white, which we have already replied to you a few times in June and July 2023. For better utilisation of resources, we will not reply to you on the same matter and any subsequent developments stemming from the same matter if you contact us again.

6.  As well as the earlier referenced emails, I also note from the enclosures to the application that the Applicant appears subsequently to have contacted the Ombudsman again by emails on 6 September and 29 November 2023. Those emails appear to have contained complaints against the staff handling the Applicant’s telephone calls and subsequent emails to the Ombudsman’s office. In reply, the Ombudsman pointed out that the Ombudsman’s office had replied to the Applicant on 21 July, 15 August, 16 August, and 25 August 2023, and had no further response to the Applicant’s opinions.

C.  Applicant’s Further Materials

7.  In her affirmation filed in support of the current application, the Applicant stated that the office of the Ombudsman and the Ombudsman should not have (1) deemed the EOC’s open website design as their internal affair not affecting their service to the public because the website is the only authorised channel for the public to file complaints, and (2) deprived the Applicant of her right to phone enquiries when their phone services are up and running and when she has multiple disabilities revealed to them.

8.  In the attachment to her affirmation, the Applicant stated as follows (bold in original):

Ombudsman’s misjudgment over EOC’s open website design as their internal affair not affecting their services to the public:

1. After months of refusal to address my complaints of being threatened and emotionally harassed on EOC webpages – the only authorised channel for the public to file complaints, EOC admitted that they deliberately turned ALL pages of EOC black and white themselves to signal death to the visitor as the target audience.

2. EOC refused to reply as to when they decided to turn ALL pages black and white to signal death including the disability harassment page on which I first instantly received the visual black and white death threat from bright full colours during my visit on 2 Dec 2022 at 16:17.

3. EOC also replied no more as to why they were the only HK independent statutory body that turned ALL pages black and white but not just the front page as the Ombudsman Office admitted executing the colour design change of the front page of their website themselves.

4. Even though the Ombudsman website only used one page to signal death to the public and that I was visually harassed and threatened on the disability harassment page of the website of EOC during my visit at the exact time stated, the Ombudsman Office replied that the colour design change on the website open to the public as the only authorised channel for the disabled to file complaints was EOC’s ‘internal affair and had no impact on its service to the public’ (Email reply of 6 September 2023).

5. The Ombudsman Office has continued to not answer my enquiries as of today after repeated requested to clear my doubts fully.

6. The Ombudsman Office first prevented its case officer, Florence Leung, from calling me, and then specifically asked me not to call them for any enquiries anymore as they stated that they regarded it difficult to communicate with me on the phone even though I expressed my visual, attentional and autistic disabilities since the beginning.

7. Insisting giving written information only, the Ombudsman Office however gave contradictory information in their written replies such as how they never had phone recordings since their establishment so they did not have a record of how many times I talked to Ms So and yet they were able to be certain that the woman voice I interacted with on the phone did not belong to Ms So but belong to Mr So, who was a man according to them – I asked to let me hear their voices to clarify but was rejected till today; they also replied that the case officer, Florence Leung, apologised to me according to herself but when I asked how they were certain that Florence Leung apologised to me and did not have attitude problem they replied that they did not have any phone recordings and thus could not confirm that Florence Leung did not have any attitude problem but refused to clarify further why they allowed their staff to deliver sub-standard phone enquiries services.

8. Below gives some examples of how I was mistreated specifically:

9. The Ombudsman didn’t allow me to receive phone clarifications to the level that they refused to tell me how to read their staff member’s name:

10. Winnie vs. Gwenny

11. Mr Chan of their office told me that Qwenny didn’t exist in their office, only Winnie. But according to the website, Qwenny is a staff member.

12. Since 6 September 2023 they stopped replying to my enquiries/complaints through written emails altogether, not just rejecting my requests to receive phone replies.

13. I have multiple inborn disabilities including ADHD, Autism and double vision. I was also diagnosed with acquired disabilities including dry eye syndrome and anxiety disorder during my complaints with the Ombudsman Office; but the Ombudsman Office abused their authority and deprived my right to phone enquiries and complaints to hurt me further when their hotline has obviously been up and running according to their website.

14. All in all, the Ombudsman Office discriminated against me, allowed EOC to harass and threaten me and wasted public resources as summarised below:

15. Insisted on writing many wordy but empty emails with repetitive information to me just to refuse to call me back when requested as well as when my visual and attention disabilities had been revealed to them – disability discrimination and resources waste

16. Complicated public enquiries through chaotic phone handling services with no phone services monitoring system in place – failure to deliver and ensure quality phone services

17. Refused to question network security and harassment-prone practices when a malpractice of a public body deviated from their own practice to signal death was reported to them – risking public safety and potential obstruction of justice

18. Unilaterally forced me to write only when my disabilities had been revealed to them – disability discrimination

19. Provided contradictory written information when written communication was imposed on me – disability discrimination and potential obstruction of justice

20. Offered inaccurate and confusing staff information – sub-standard services against service pledges and potential obstruction of justice

21. Failed to respond to outstanding questions for months – substandard services against service pledges and potential obstruction of justice

9.  I have taken these matters into account.

D.  No Merits in the Application

10.  Neither the Form 86 nor the affirmation properly identify any public law grounds of intended review. There is also an apparent ‘disconnect’ between the claimed relief and what is said in the affirmation. In any event, the failure properly to identify the grounds of review, in breach of the mandatory requirement under RHC Order 53 rule 3(2), is of itself reason to dismiss this application. It is not for the Court to seek to divine or draft public law grounds of review for an applicant.

11.  From the content of the attachment to the Applicant’s affirmation, it can be seen that her real complaint is in relation to the level and quality of services received from the Ombudsman (in its dealing with her underlying complaint about the change in the EOC website). The Court exercising its judicial review jurisdiction does not act as some form of body dealing with what are, in effect, ‘customer service complaints’.

12.  In any event, I cannot see any reasonably arguable illegality, procedural impropriety, irrationality or Wednesbury unreasonableness in the Ombudsman’s dealing with the matters raised by the Applicant as regards her concerns about the EOC’s website. Further, the Ombudsman having provided at least one complete response to the Applicant, I do not think it is incumbent on the Ombudsman to continue to respond to the Applicant’s repeated attempts to raise or pursue the same matters.

E.  Result

13.  The Applicant having failed to identify any reasonably arguable public law grounds of intended review with any realistic prospect of success, the application for leave to apply for judicial review is dismissed.

14.  I make no order as to costs.