BEELAB SEMICONDUCTOR LTD v. THE OMBUDSMAN

CACV 227/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 227 OF 2010

(ON APPEAL FROM HCAL NO. 151 OF 2008)

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JUDGMENT

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Hon Kwan JA:

1.  We have before us two applications of Ng Shek Wai. Mr Ng is a director of the appellant company, BeeLab Semiconductor Ltd (“BeeLab”). BeeLab’s application for judicial review was dismissed by Poon J on 22 September 2010. Acting by its former solicitors, BeeLab filed a Notice of Appeal against this judgment.

2.  In February 2011, Mr Ng made an application under Order 5 rule 6 for him to represent BeeLab in this appeal.  His application was refused by the Registrar.

3.  On 27 May 2011, an order was made by this court that BeeLab’s solicitors have ceased to act for it in this appeal.

4.  Since then, BeeLab has not been legally represented.

5.  Mr Ng’s applications to us are firstly, to submit six points of law in this appeal, and secondly, to address this court in the appeal.  He has provided this court a skeleton argument for each application. 

6.  I will deal with the second application first, as the first application would depend on how the second application is disposed of.

7.  The second application is made under Order 53 rule 5B, which provides as follows:

“(1) Any person may apply for leave to –

(a) file evidence; or

(b) make representations at the hearing of the application for judicial review.

…

 (3)       The Court shall not grant leave under paragraph (1) unless the applicant appears to the Court to be a proper person to be heard at the hearing of the application for judicial review.”

8.  Mr Ng submitted that by virtue of section 13(4)(a) of the High Court Ordinance, Cap. 4, for the purposes of and incidental to the hearing and determination of any appeal to the Court of Appeal, the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought, so the Court of Appeal would have the same power as the judge hearing the application for judicial review under Order 53 rule 5B.  Miss Sit who appears for the Respondent informed us in her oral submission today that she agrees with this.

9.  Mr Ng said he made this application under Order 53 rule 5B not as a representative of BeeLab, but as a member of the public.  As I understand Mr Ng’s submission, he is not seeking leave to represent BeeLab in this appeal, and his application to this court is not to be regarded as an appeal from the order of the Registrar refusing him leave on 7 February 2011.  Order 5 rule 6(4) provides that no appeal shall lie from an order of the Registrar refusing leave to a director to represent a body corporate in proceedings.

10.  That being his stance, it is not necessary to deal with the submission of Miss Sit, that the Court of Appeal has no jurisdiction to entertain Mr Ng’s application afresh, for leave to represent BeeLab in this appeal.

11.  As I have mentioned, Mr Ng is applying for leave to address this court solely as a member of the public.

12.  Mr Ng informed us that for this appeal BeeLab had briefed two counsel, and found both unacceptable, for reasons not necessary to go into.  As BeeLab was liable to pay the costs of the Respondent as ordered by Poon J, BeeLab “cannot afford to continue the endless search of a counsel who will turn every stone for BeeLab.” He asked this court to grant him leave so he could argue points of law of “great general public importance”, as BeeLab is unrepresented and it cannot be in the interest of the public that the disputed points of law he raised would not receive full debate.

13.  Mr Ng submitted that Order 53 rule 5B was introduced as part of the Civil Justice Reform to allow persons who have remote interest rather than direct interest to be heard by the court.

14.  The amendments introduced by the Civil Justice Reform to rules 5B and 9(1) of Order 53 made clear that while the court has power to allow persons to be heard not merely in opposition to, but also in support of, the application for judicial review, the court should retain an overall discretion to limit such hearings to persons who appear to the court to be proper persons to be heard (Civil Justice Reform – Final Report, Section 31, para. 881).

15.  I am unable to see how Mr Ng could be regarded as a proper person to be heard in this appeal.  A member of the public has no apparent interest or standing to argue points of law in this appeal.  In the exercise of the overall discretion under Order 53 rule 5B, it is important that this power is not abused.  I think there is substance in Miss Sit’s submission that Order 53 rule 5B is not intended to be a means for a company director who failed to obtain leave under Order 5 rule 6 to seek leave to appear as a member of the public by the backdoor.  Mr Ng accepted before us this is what he is seeking to do but asked us to grant him leave as what he is doing is in the public interest.  I disagree with this entirely.  I am unable to see how it can be in the public interest to give leave to Mr Ng as a member of the public to argue this appeal.   I do not think his intervention as a member of the public will assist the court in any way to perform its duty in this appeal.

16.  On this basis alone, I would refuse leave to Mr Ng to make representations in this appeal. 

17.  As for the four points of law raised in his written submissions as points of law of “great general public importance”, it is not necessary to deal with them in any detail.  Suffice it to say they are either points of law that were not the subject of determination by Poon J or that they were not germane to his decision.  Such points of law could not properly be regarded as legal issues that ought to be dealt with in this appeal.  The court does not make a ruling on general, hypothetical questions.  On this basis as well, I will also refuse leave to Mr Ng.

18.  Mr Ng was present when the order for the former solicitors to cease to act for BeeLab was made on 27 May 2011.  He knew very well if solicitors and counsel were not retained for the company, BeeLab would be left unrepresented at the hearing in three weeks’ time.  There is no one to move the appeal for BeeLab and this appeal cannot be pursued.

19.  As leave is refused for Mr Ng to make representations, he is not permitted to submit the six points of law in his skeleton argument in support of his first application, whether on his own behalf or on behalf of BeeLab.

20.  I will therefore order that the appeal be dismissed with costs to the Respondent.

Hon Fok JA:

21.  For the reasons given by Kwan JA, I agree that Mr Ng's applications today must be dismissed.  I also agree with the proposed order on the appeal.

Hon Lunn J:

22.  I agree with the judgment of Kwan JA and the order that she proposes that the court should make.