RE CHEUNG KIN CHUNG

HCAL84/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 84 OF 2010

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D E C I S I O N

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1.  This is an application for leave to apply for judicial review. Having read the original Form 86A Notice dated 23 August 2010, I directed that an oral hearing be fixed for the purpose of determining whether leave should be granted. This was because the notice of application stated that it was a “Notice of Application for leave to apply for Judicial Review with oral hearing” (emphasis added).

2.  At the oral hearing that was duly fixed for this purpose, the applicant produced an Amended Notice of Application for Leave to Apply for Judicial Review dated 22 September 2010, the date of the hearing.  The applicant addressed me on this Amended Form 86A and sought leave to apply for judicial review in accordance with that document in substitution for his original Form 86A Notice.  I propose to treat the application for leave to apply for judicial review as being on the terms of that Amended Form 86A.

3.  The applicant is a resident of Hung Ngok House, Choi Hung Estate, Kowloon.

4.  The applicant seeks leave to apply for judicial review against (1) the Director of Housing, (2) the Ombudsman, and (3) the Commissioner of Police.

5.  The decisions which the applicant seeks to challenge are, in the case of the Director of Housing, identified in the Amended Form 86A as “[c]ontinuing decisions of failing to act”, in the case of the Ombudsman, a decision dated 28 October 2009 and “failure to act”, and in the case of the Commissioner of Police, “[c]ontinuing decisions of failing to act”.

6.  The relief which the applicant seeks in the notice of application is “[a]n Order of Certiorari to quash the mentioned decisions, an Order of Mandamus to require all respondents to investigate my cases thoroughly and damages”.

7.  In his oral submissions, the applicant explained that the origin of his various complaints was the fact that when he lived in Tin Shui Wai he had argued with security guards there who then subjected him to retaliation which has lasted for more than 10 years.  The applicant said that, despite complaining to the police and the Ombudsman about this, nothing was done.

8.  In respect of the Director of Housing, the grounds on which relief is sought are identified in the Amended Form 86A Notice as “[b]ad faith/improper motive, bias [and] failure to perform duties in respect of my numerous complaints against security guards”. 

9.  The evidence filed by the applicant refers to complaints made by him over a period of five years.  The applicant exhibited, as “CKC-1” to his affirmation in support of the original Form 86A Notice, a CD containing complaint e-mails written by him.  Those e-mails are dated between 29 June 2005 and 24 November 2005 and are all from the applicant to various recipients in the Housing Authority.  In substance, the e-mails disclose complaints about various security guards, some named and some un-named.  The nature of the complaints differ but include, for example, talking on the telephone whilst on duty, smoking whilst on duty, showing poor manners to the applicant and using abusive language towards the applicant.  From the last of the e-mails exhibited, dated 24 November 2005, it appears that the specific crux of the applicant’s complaint was that the subcontracted security services should be terminated.

10.  In his second affirmation, the applicant exhibits letters dated 5 and 29 July 2010 and written by him to the Housing Authority requesting various items of information in relation to an incident involving alleged spitting by a security guard at the applicant’s estate and the subsequent chasing of the applicant by the security guard.  These were answered by a letter dated 13 August 2010 from the Director of Housing following a telephone call by a Mr Tam of the Housing Authority to the applicant to clarify his requests.  This letter enclosed a reply dated 20 November 2003 which had earlier replied to the applicant’s complaint.  Notwithstanding this reply, the applicant wrote a further letter to the Housing Authority dated 23 August 2010 requesting information about the incident.  Further letters concerning requests for additional information and complaints against Mr Tam are also exhibited and referred to in the applicant’s second affirmation.

11.  Even assuming that the decisions of the Director of Housing not to act on the complaints contained in the various e-mails from the applicant constitute reviewable decisions, there is nothing in the materials before me to suggest that there is a reasonably arguable case that the Director of Housing has acted unlawfully or in dereliction of duty or irrationally in not acting on the complaints.  Whether or not the Director of Housing decides to act on a complaint, and how he acts on it, is a matter lying within the Director’s discretion and there is nothing in the papers before to support a reasonably arguable case that his discretion was exercised unlawfully or irrationally.

12.  I would add that I am unable to see any basis in the evidence for the applicant’s allegations of bad faith, improper motive or bias on the part of the Director of Housing.  The applicant’s complaints boil down to his dissatisfaction that the Director has not done what the applicant would like him to have done.  But that does not mean that the Director has acted in bad faith or been motivated by an improper motive or bias.  Where an applicant is alleging bad faith, improper motive or bias, he should, in my view, condescend to full particulars in the application, so that the court can form a view as to whether the allegation is reasonably arguable.  Here, the applicant has done no more than make the allegations as bare assertions based on his not obtaining what he would have wished.  As such, the allegations of bad faith, improper motive or bias amount to mere speculation and are therefore not a suitable subject for judicial review.  It is not right that allegations of this nature be made on a speculative basis.  The mere fact that the applicant is acting in person is no excuse for a failure to adhere to this fundamental and basic rule, which is no more than a rule of fairness.

13.  I also do not consider that there is any reasonably arguable case for mandamus to require the Director of Housing to investigate the matter, whether under section 4 of the Housing Ordinance (Cap. 283) to which the applicant referred in his oral submissions or otherwise.  The correspondence exhibited, namely “CKC2-8” and “CKC2-11” which are letters from the Director of Housing to the applicant dated 26 August 2010 and 7 September 2010, show on their face that the Director of Housing has investigated the applicant’s complaints, including watching the CCTV footage of the alleged incident and reminding frontline staff including security guards to be polite and alert in the execution of their duties.  There is no proper basis put forward in the papers before me to suggest that this has not happened.

14.  Turning to the Ombudsman, the applicant’s complaint is one of failure to perform, presumably statutory, duties.  The gist of the complaint seems to be that the Housing Department has delayed in replying to the applicant’s complaints, and therefore ignored those complaints, for more than five years and that this amounts to serious maladministration.  The period of five years as identified by reference to the date 29 June 2005, being the earliest e-mail in exhibit “CKC-1”.  The applicant’s affirmations refer to a refusal on the part of the Ombudsman to arrange for the viewing of CCTV tapes showing alleged misconduct of the Housing Department.  The applicant complains of unfairness and bad faith on the part of the Ombudsman and seeks to hold the Ombudsman accountable to perform her duties properly, namely “to right the administrative wrongs”.

15.  It is not clear on what basis the applicant contends the Ombudsman has failed to perform her duties properly.  The applicant referred in his affirmations to section 13 of the Ombudsman Ordinance (Cap. 397) in respect of the alleged obligation on the part of the Ombudsman to arrange for the contents of the CCTV tapes to be shown to the applicant.  It would appear therefore that the applicant may be basing his complaint of alleged dereliction of duty on the part of the Ombudsman on section 7 of the Ombudsman Ordinance.  Under that section, the Ombudsman may investigate any action taken by or under half of, amongst other persons, the Housing Department in any case where a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action.

16.  There is nothing, however, in the papers before me to demonstrate how the Ombudsman’s exercise of discretion under section 7 is susceptible to a challenge by way of judicial review.  So far as the complaint of bad faith, improper motive or bias is concerned, I repeat my comments at paragraph 12 above.  The allegations here are no more than speculation and are not substantiated on the evidence.

17.  Furthermore, in the letter from the Ombudsman dated 29 October 2009 exhibited by the applicant as “CKC-2” and identified by him as being the relevant decision sought to be challenged, it is clear that the Ombudsman declined to arrange for a viewing of the video recording (presumably a reference to what the applicant has called the CCTV tapes) on the basis that “our role is to look into complaints about maladministration in accordance with [t]he Ombudsman Ordinance”.  This demonstrates that the Ombudsman has taken the view that no relevant complaint about maladministration has been drawn to her attention.  It is pertinent to note that in this letter, the Ombudsman has drawn the applicant’s attention to the fact that he has failed to respond to her letters of 12 May 2009, 9 June 2009 and 18 June 2009 “by returning the requisite reply slip”.  This appears to imply that the return of the reply slip is necessary for the Ombudsman to be able to take further action.

18.  In the circumstances, I do not consider that the applicant has demonstrated any reasonably arguable ground of challenge to the Ombudsman’s decision.

19.  As to the Commissioner of Police, the applicant’s complaints are extremely wide-ranging and, if established, very serious.  There are two groups of complaints.  The first includes allegations of bias, bad faith and perversion of the course of justice.  The complaints include a specific allegation that the police “framed” the applicant for a traffic offence, for which the applicant has received a summons to appear in the Kowloon City Magistracy on 15 October 2010.  The second group of complaints relates to the failure of the police to perform their duties to take action against the security guards about whom the applicant has complained.  This is the same complaint in substance as that made against the Ombudsman.  In his oral submissions, the applicant based his allegation of failure to perform statutory duties on section 28 of the Security and Guarding Services Ordinance (Cap. 460), on the basis of which he contended the police had a duty to review the CCTV footage of the alleged misconduct of the security guards about whom the applicant complained.

20.  There is nothing, however, in the papers before me to demonstrate a reasonably arguable case to support the grounds on which relief is sought against the Commissioner of Police in the Amended Form 86A Notice, namely “[b]ad faith/improper motive, bias, failure to perform duties in respect of [the applicant’s] numerous complaints against security guards [and] violations against [his] basic human rights”.  As I have noted, the complaints are wide-ranging and very serious.  It is incumbent on the applicant to show a proper basis for the allegations and I do not consider the applicant has done so.  Again, I repeat my comments at paragraph 12 above in this context.

21.  Finally, a further reason for declining to grant leave to apply for judicial review in the present case is delay.  Under RHC O.59, r.4(1), 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 that the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

22.  In both the original and Amended Form 86A Notices, the applicant appears to acknowledge that there has been delay in making this application for leave.  He states that delay was caused by the “refusal of application for waiving the application fee for the Judicial Review of Second Respondent by Master Lung on 28 January, 2010 which was the last date for application for Judicial Review”.  The date 28 January 2010 is three months after the date of the letter from the Ombudsman dated 29 October 2009, which is exhibit “CKC-2”.  So far as the Director of Housing is concerned, I have already observed above that the last e-mail in the exhibit “CKC-1” is dated 24 November 2005.  So far as any complaint for failure to respond to those e-mail complaints is concerned, the application for leave to apply for judicial review is substantially out of time, being more than 4½ years after the relevant decision or decisions complained of.  The more recent correspondence with the Director of Housing in 2010 shows that the original underlying complaint was investigated in 2003, so if the applicant had any basis for applying for judicial review against the Director of Housing in respect of that investigation, the delay is even more substantial than in respect of the e-mail complaints.

23.  In my judgment, no good reason for extending the period of three months for the making of the application for leave to apply for judicial review in the present case has been demonstrated by the applicant.  The asserted reason of the refusal to waive the application fee for the filing of the notice of application for judicial review is not, in my view, a good reason for an extension of time. No other reason is put forward.

24.  For all these reasons, I do not consider that the applicant’s proposed judicial review is reasonably arguable and I therefore refuse the application for leave to apply for judicial review.

25.  I would add that, subsequent to the hearing, the applicant sought on 24 September 2010 to file a further, third affirmation, in support of his application for leave to apply for judicial review.  The filing of yet further material in this manner is not appropriate and, strictly, the court should disregard it.  However, for the sake of completeness, I would add that I have reviewed the material contained in the applicant’s third affirmation.  This exhibits another collection of e-mails written by the applicant to various parties, principally the Housing Authority and the Department of Justice.  They range in date from 14 July 2005 to 29 March 2007.  Clearly, therefore, any complaint in respect of any failure to act in respect of those e-mails is considerably out of time and no good reason is advanced for extending time. More substantively, the contents of the e-mails do not provide any basis to support a reasonably arguable case for judicial review against any of the putative respondents.  Indeed, one of them demonstrates what must, on any view, be an element of exaggeration on the part of the applicant: see the e-mail dated 22 October 2006 which claims that, for 10 years, the applicant has been “maltreated by a large population of more than 100,000 security guards” (emphasis added).  In addition to these e-mails, the third affirmation repeats the complaint that the police have “harboured security guards in attempts to pervert the course of justice”.  Exhibited to the affirmation are copies of Information laid in Kwun Tong Magistrates’ Court on two occasions (on 9 April 2010 and 7 June 2010) and also, more recently on 22 September 2010, in Tsuen Wan Magistrates’ Court by way of attempts to instigate private prosecutions. In each instance, the Information relates to complaints of alleged perversions of justice by the police in assisting security guards to evade justice or in concealing offences by security guards.  If there is any substance to these complaints, they should be investigated by way of these private prosecutions, if they are permitted to be pursued.  In short, there is nothing in the applicant’s third affirmation which causes me to change the view expressed in paragraph 24 above.