CHENG SHU KI v. 律政司司長 AND OTHERS

HCAL 1383/2024 & HCAL 1384/2024

(Heard together)

[2024] HKCFI 3364

HCAL 1383/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1383 OF 2024

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HCAL 1384/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1384 OF 2024

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(Heard Together)

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JUDGMENT

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1.  There are before the court two applications both of which were filed on 21 August 2024 (HCAL 1383/2024 and HCAL 1384 /2024) for leave to apply for judicial review.

2.  Although the Applicant (“Cheng”) is unrepresented, he is an educated person[1].  Regrettably, both of his applications are very difficult to understand.  However, it is tolerably clear that the applications are related.

3.  In 1383/2024, the Secretary for Justice, the Commissioner of Police and 15 other persons and institutions (including the Director of Legal Aid, Master Yee, Hospital Authority and various medical faculties) were named as putative respondents.  In 1384/2024, the Registrar of Civil Appeals (“Registrar”) and the same 15 other parties were named as putative respondents.  A large number of putative interested parties were identified in both applications. 

4.  For both applications, the Form 86 (under “Judgment, order, decision or other proceeding in respect of which relief is sought”) referred to Cheng’s supporting affidavit which came with an attachment of, respectively, 20 pages and 25 pages.  This is not the proper way to present a leave application.  The court should not be put in a position of having to plough through the attachments to see what the subject matter(s) of complaint may be.  The Forms 86 are liable to be struck out for this reason.

5.  However, in addition to referring to the supporting affidavit, in 1383/2024, the Form 86 (under “Judgment, order, decision or other proceeding in respect of which relief is sought”) referred to 2 letters of the Department of Justice dated 26 and 31 July 2024, which were issued on behalf of the police. 

6.  In 1384/2024, the Form 86 also referred to 3 directions/orders made in CACV 254/2024 dated 24 July, 31 July and 8 August 2024. 

7.  Neither of the Forms 86 contained any “Grounds on which relief is sought”.  Cheng was directed by the court to provide the grounds, which was subsequently sent to the court by facsimile on 24 October 2024.  The grounds for both applications were set out in the same document.

8.  On 12 November 2024, Cheng filed an affidavit in each of these applications enclosing his submissions for this hearing.  The submissions are identical.

Background

9.  In terms of the background, doing the best one can to decipher the materials before the court, it appears that Cheng had allegedly been subjected to inappropriate medical treatment in that he was prescribed certain drugs (metoprolol) which were not suitable for a person with his physical conditions.  Subsequently, he made a criminal complaint with the police in relation to the treatment against a substantial number of doctors of the Tuen Mun Hospital. 

1383/2024

10.  In 1383/2024, the 26 July 2024 letter was short and by which Cheng was informed (a) the police investigation of his complaint was completed and no criminal element was found; and (b) his request for witness statements, presumably those used in the police investigation, for the purpose of CACV 254/2024 was declined as being non-compliant with litigation procedure.

11.  In respect of the 31 July 2024 letter, the relevant part of which referred to the expunging of Cheng’s Notice of Appeal in CACV 254/2024 by an Order of the Registrar dated 24 July 2024, and reiterated (a) the completion of investigation by the police with no sufficient evidence of any criminal offence; and (b) Cheng’s request for witness statements was declined.

12.  There are 2 grounds advanced in support of the leave application: (a) Cheng is seeking extensive discovery from the Commissioner of Police, ie, not confining to witness statements but including police reports and all documents relating to HCPI 77/2022 and CACV 254/2024; and (b) the appropriate medical treatment for people with Cheng’s conditions is a matter of important interest for patients (“Patient Interest Ground”).

CACV 254/2024

13.  A Judgment was given by the Court of Appeal (“CA”) in CACV 254/2024 which was dated 9 October 2024.  By that Judgment, Cheng’s application for leave to appeal to the Court of Final Appeal (“CFA”) against the Order of the Registrar dated 24 July 2024 (“Order (1)”) was dismissed.  By Order (1), Cheng’s Notice of Appeal in CACV 254/2024 was expunged by reason of the inclusion of new defendants without the leave of the court.  By another Order dated 8 August 2024 (“Order (2)”), Order (1) was maintained by the Registrar despite further representations from Cheng.

14.  At the hearing, Cheng confirmed that his application for leave to appeal to the CFA was the only application he had made to the CA in CACV 254/2024[2].  According to Cheng’s written submissions, he had made a further application to the CFA for leave to appeal, which is pending. 

1384/2024

15.  In addition to challenging Orders (1) and (2), the Form 86 also referred to another direction/order dated 31 July 2024. However, it appears from page 10 of the Appendix to Cheng’s supporting affidavit that it was in fact a letter from the clerk of the Registrar informing Cheng that in response to his representations the Registrar would examine the relevant documents in the court file which had been submitted by him. 

16.  For support of this leave application, Cheng had repeated the Patient Interest Ground (see para 12(b) above). 

Analysis

17.  In respect of 1383/2024, the discovery for the purpose of CACV 254/2024 is a non-starter because those proceedings had been expunged, and the CFA is currently seized of the matters.  This court is unable to see any legitimate ground for judicial review in such circumstances. 

18.  As for HCPI 77/2022, Cheng confirmed at the hearing that it is a medical negligence action by which he sues the Hospital Authority for the prescription of inappropriate drugs.  There are defined parameters and established procedure for discovery, including discovery against non-party (such as the Commissioner of Police) under those proceedings.  It is therefore difficult to see why the court’s jurisdiction for judicial review should be invoked in light of the existence of discovery procedure under HCPI 77/2022.

19.  The contention of patient interest is a bare assertion.  In the absence of specificities, it cannot be accepted as a blanket assertion that all medical negligence actions involve patient interest.  I fail to see the Patient Interest Ground as a proper one in support of 1383/2024. 

20.  The foregoing analysis applies equally to 1384/2024 in that (a) CACV 254/2024 had been expunged; and (b) the Patient Interest Ground is a bare assertion. 

Disposition

21.  For these reasons, there is no reasonably arguable ground in support of these applications.  They are dismissed with no order as to costs.

22.  Finally, the court notes that no less than 3 applications (including the present two) for leave to apply for judicial review had been brought by Cheng arising from his allegation of medical negligence against a large number of parties (either as putative respondents and/or putative interested parties).  Each one of them is misconceived.  Consequently, a good deal of the court’s resources, which belong to the public, have been wasted. If such behaviour continues, Cheng may be exposed to a restricted proceedings order in the future.