CHOW KIN HANG ALI v. PRESUMED THE HEAD OF THE WORKING PARTY FOR CJR & PD

CACV 235/2023, [2025] HKCA 329

On Appeal From [2023] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 235 OF 2023

(ON APPEAL FROM HCAL NO. 1107 OF 2023)

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JUDGMENT

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Hon Anthony Chan J (giving the Judgment of the Court) :

1.  This is the Applicant’s (“Chow”) appeal against the Order of Coleman J dated 20 July 2023 by which his application for leave to apply for judicial review filed on 6 July 2023 (“Leave Application”) was dismissed.

2.  Chow was and is unrepresented. All the documents he had filed in these proceedings are in English.

3.  The Form 86 on which the Leave Application was based did not identify the subject matter of the Application. It appears from the supporting Affirmation of Chow (“Affirmation”) that the intended judicial review was about the Civil Justice Reform which was implemented in 2009 (“CJR”) and Practice Direction SL1.2 (“PD SL1.2”) which became effective in 2014. PD SL1.2 set out the pilot scheme for electronic discovery in commercial list cases.

4.  The Affirmation is largely unintelligible. Doing the best we can, it appears that Chow was complaining about the implementation of the CJR and PD SL1.2 which the stakeholders were, according to him, not aware of. Further, Chow was adversely affected by the CJR and PD SL1.2 in CAMP 126/2022, and he sought a declaration to have the CJR and PD SL1.2 disapproved by the Court and to have the pre-CJR position “re-affirmed”.

5.  The Affirmation then referred to a personal injuries action of Chow, DCPI 514/2018, and his application for discovery in respect of certain “999 records”. It was suggested that the denial of the discovery application was unlawful. Article 25 (equality before the law) and Article 35 (right to legal advice, access to courts, choice of lawyers and judicial remedies) of the Basic Law were referred to.

6.  Chow also said in the Affirmation that Judges were afraid to speak out about the CJR and PL SL1.2. Article 85 (judicial independence and immunity from legal action) and Article 28 (freedom of the person) of the Basic Law were also referred to.

7.  It appears that Coleman J was able to gain a better understanding of Chow’s complaint by examining (1) a Decision in DCPI 514/2018 dated 31 January 2022 (“Decision”) by which Chow’s application for leave to appeal against the refusal of his application for specific discovery of audio recordings of 999 calls he made on 17 March 2015 was dismissed; and (2) a Judgment of the Court of Appeal (“CA”) in CAMP 126/2022 dated 8 December 2022 (“Judgment”) dismissing Chow’s renewed application for leave to appeal, which was made out of time, against the refusal of specific discovery.

8.  According to the Decision and the Judgment, in DCPI 514/2018 Chow made a claim for damages against Commissioner of Police by alleging various misconducts by the police in handling the investigation of his complaint over an assault, including his wrongful arrest, false imprisonment and improper investigation by the Complaints Against Police Reporting Centre.

9.  In the course of the proceedings, Chow applied for specific discovery of various documents, including audio recordings of 999 calls made by him (“Recordings”). The application was rejected by a Master with the exception of two specific reports. Chow appealed against the Master’s decision on the Recordings, which was heard before HHJ H Leong and dismissed on 29 June 2021. The main reason for the dismissal was that an affirmation was filed and served on behalf of the Commissioner deposing to the fact that the records of the 999 call centre were only kept for 62 days, and the Recordings no longer existed. Further, Chow had no sufficient reason to challenge the evidence.

10.  Chow’s application for leave to appeal against the decision of the 29 June 2021 was dismissed by HHJ H Leong on 31 January 2022. He renewed his application for leave to appeal before the CA, and it was dismissed on 8 December 2022. On the merits of Chow’s intended appeal, the CA, agreeing with the court below, held that it was well-established that the affirmation of a party deposing to the unavailability of a requested document is conclusive unless the court is satisfied either from the documents produced or from anything in the affirmation of that party or by an admission of that party in the pleadings or necessarily from the circumstances of the case that the affirmation does not truly state that which it ought to state (“Principle”). In the absence of such matters, there was no merit in Chow’s proposed appeal and his application was dismissed with costs.

11.  In light of these facts, it is quite puzzling why Chow is complaining about the CJR or PD SL1.2. The latter is entirely irrelevant to his action or his specific discovery application. As to the former, if Chow is labouring under the belief that the Principle was introduced under the CJR, such belief is misconceived. The Principle can be traced to the landmark case on discovery of Peruvian Guano, which was decided in 1882 ((1882) 11 QBD 55 at 59 (CA)) (see also Hong Kong Civil Procedure 2025, vol 1, [24/7/1]).

12.  Coleman J held that Chow’s application was wholly misconceived. Amongst the reasons given by the Judge, it was held that Chow had failed to explain what was wrong with the CJR or PD SL1.2 in a public law sense; none of the provisions of the Basic Law cited by Chow was of assistance to his application; Chow’s application was an attempt to make a collateral attack on the Judgment and was an abuse of process; and any challenge to the CJR or PD SL1.2 was grossly out of time.

13.  The grounds of appeal relied upon by Chow before this Court are hardly more intelligible than the Affirmation and do not begin to address the reasons of the Judge. Chow’s submissions (both written and oral) before this Court do not take the matter any further.

14.  This application is badly misconceived. It is accordingly dismissed with no order as to costs.