李鴻發 v. 香港警務處 AND ANOTHER

HCAL 542/2022

[2023] HKCFI 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 542 OF 2022

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R U L I N G

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1.  In my Decision dated 27 October 2022 [2022] HKCFI 3165, I refused the Applicant’s application for leave to apply for judicial review to challenge the Decision dated 10 November 2021, by which the Applicant (previously a sergeant in the Hong Kong Police Force) was dismissed from the Police Force without retirement benefits, immediately after being reduced to the rank of constable.

2.  In the Decision, and in the broad exercise of my discretion, I also ordered costs to be payable by the Applicant and directed a time-table for the usual exchange of documents to enable summary assessment of costs on paper.  In my Costs Ruling dated 30 November 2022 [2022] HKCFI 3440, applying the usual approach to summary assessment, I awarded costs to the putative respondents at $25,000.

3.  The Applicant then filed a Summons dated 30 January 2023, which was listed by the Listing Office as a summons for extension of time to appeal.  But neither the content of the Summons nor that of the supporting affirmation would suggest that this is really an application for extension of time to appeal.

4.  In the Summons, rather than setting out the orders he would seek from this Court, the Applicant makes two points in submission: (1) he disagrees with my Decision – without explaining why – and hopes that his judicial review leave application could be dealt with by an oral hearing rather than on paper, and (2) he disagrees with my Costs Ruling because his application had not yet been heard, the costs should not be borne by one party unilaterally, and he now has no work or income.

5.  In his supporting affirmation, he says when he filed his Form 86 dated 27 June 2022, he had consulted lawyers and no one had ever told him that there is a limitation period within which a judicial review application must be taken out.  Therefore, he was late in applying for judicial review.  As he understood from the Court’s decision – presumably referring my substantive Decision – he has sufficient grounds to claim his retirement benefits, and that his application was only not accepted for handling (“受理”) because he filed his Form 86 out of time.  He expresses the hope that the Court could hear his application by an oral hearing.

6.  This Summons is misconceived if what the Applicant seeks to achieve is to reopen matters already decided in my Decision or the Costs Ruling.  Having made my Decision on 27 October 2022 (which was sealed on the same day), this Court is functus officio in relation to the substantive rejection of the leave application or the costs order made against the Applicant.  Whilst the Costs Ruling has not yet been sealed, the summary assessment has been made and, in any event, the Applicant has provided no reasons why the assessment should be varied.  This Summons is simply not the proper procedures to achieve what the Applicant appears to seek to achieve.  This alone is sufficient to dismiss the Summons.

7.  For completeness, I would also note the following:

(1)  The Applicant seems to believe (mistakenly) that a disposal on paper means that his leave application was not “accepted for handling” by the Court.  The institution of proceedings in our system is procedurally based.  Having successfully filed his Form 86 in Court, his leave application was properly instituted (and it was handled and dealt with).

(2)  If the belief that his application was not accepted by the Court for handling stems from the lack of an oral hearing, that is, again, mistaken.  The lack of an oral hearing neither reflects that his leave application was not considered as properly instituted nor that the application had not been properly dealt with.

(3)  In my Decision [2022] HKCFI 3165, whilst I said the delay in filing the Form 86 was fatal to his application, I also dismissed his application on the merits (or rather its lack of merits).

(4)  After the Decision was made, but prior to the delivery of the Costs Ruling [2022] HKCFI 3440, the Applicant wrote to the Court complaining about the lack of an oral hearing.  I thus took the opportunity in my Costs Ruling to set out the relevant chronology leading to the paper disposal of his leave application and explained why paper disposal was appropriate.

(5)  Whilst there is nothing in the Summons or the supporting affirmation relating to an application for extension of time to appeal, I note that by letter dated 6 December 2022 to the Court, he asked for “more time” – without specifying how much time – for him to appeal against my Decision and Costs Ruling because he would be tried in a District Court case running from 7 December 2022 to 23 December 2022. Even if I treat his Summons as a proper application for extension of time for appeal and take into account his December 2022 letter, I see no grounds to grant extension of time.

8.  The Listing Office has fixed his Summons for a 120 minutes hearing on 23 February 2023 at 10am.  However, in light of the forgoing, I consider the Summons can be properly dealt with on paper. I agree with the submission made by letter from the DoJ acting for the Putative Respondents that dealing with the matter in this way is appropriate, and that the conclusion should be as I have reached it.

9.  Therefore, in conclusion, I order the Summons to be dismissed and the hearing to be vacated.

10.  I make no order as to costs for the Summons.