莊裕安 v. 特首李家超 AND ANOTHER

HCAL 1264/2022

[2023] HKCFI 1178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1264 OF 2022

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D E C I S I O N

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A. Introduction

1.  This is my Decision, following the oral hearing requested by the Applicant in his ‘Notice of application for leave to apply for judicial review’, whereby he sought leave to apply for judicial review so as to challenge certain conduct or decisions of the putative 1^st respondent (“CE”) and putative 2^nd respondent (“SJ”).

2.  I originally fixed the oral hearing for 18 January 2023. However, by letter dated 6 January 2023, the Applicant requested a postponement of that hearing, as his application for legal aid (which was made on 4 November 2022) was still under consideration by the Director of Legal Aid.  On that basis, I re-fixed the hearing for 6 March 2023.

3.  However, on 13 February 2023, the Applicant wrote to the Court requesting a second postponement of the hearing until May 2023, in case legal aid were to be granted.  The letter made various other points which need not be traversed for present purposes.  On the basis of the request for a further postponement, I re-fixed the hearing for 3 May 2023.

4.  On 3 April 2023, the Applicant wrote to the Court requesting a third postponement of the hearing until June 2023. The content of that letter was essentially similar to the content of the 13 February 2023 letter.  However, I was not prepared to grant a further postponement on the papers, and I directed the hearing on 3 May 2023 to go ahead (albeit that I also stated that the then situation would be assessed at the hearing).

5.  At the hearing, the Applicant expressed what might be described as some (perhaps understandable) disappointment at the failure of the Legal Aid Department to have dealt with his application either by the grant or refusal of it within 6 months.  But he did not seek any further postponement of the oral hearing.

6.  At the end of the hearing, I reserved my decision to be handed down later.  This is my Decision.

7.  Although an interpreter was on standby, the Applicant chose to address the Court and make his submissions in English. Indeed, though the original papers were filed by the Applicant in Chinese, he had also offered to provide an English translation of them, though one was made by the Court interpreter.  In any event, in those circumstances, this Decision is written in English.

B.  The Application

8.  The application is “home-made” in that – contrary to the mandatory requirement in Rules of the High Court (“RHC”) Order 53 rule 3(2), and despite being headed ‘Form 86’ – it is not a notice in Form 86 of Appendix A to the RHC.  As a result, one problem arising is that the notice of application fails clearly to identify the “judgment, order, decision or other proceeding in respect of which relief is sought” (for which there is a ‘box’ on the mandated Form 86).  This is one of the reasons why following the requirements of the material provisions of the RHC is important.

9.  The Applicant’s application seeks the following relief (in English translation):

(1)  Request the court to make an order for an immediate reply from the 1^st and 2^nd respondents and an account of the 4 email enquiries made on 2022-07-23, 2022-07-25 and 2022-08-17 respectively.

(2)  Request the court to direct that the replies from the 1^st and 2^nd respondents be clear and precise, and target at the enquiries in the above four emails.

10.  As stated, though the application itself does not clearly identify the “judgment, order, decision or other proceeding in respect of which relief is sought”, I suppose it might be said that the particular conduct of the CE and SJ the subject of the intended challenge is revealed through the Applicant’s setting out of his reasons for the relief sought. Those reasons are (in English translation) as follows:

Reasons for relief sought:

1.  The applicant emailed the 1^st and 2^nd respondents on 2022-7-23 and 2022-7-25 respectively, requesting an explanation for the enquiries made in the four emails, which involved public interest.

2.  Immediately the 1^st and 2^nd respondents locked their official emails on 2022-7-26 and 2022-7-28, but they did not contact me by phone or provide me directly with any black-and-white official reply or decision.

3.  Later on 2022-8-17, the applicant made enquiries with the 1^st and 2^nd respondents by means of post and email, and requested an explanation for the enquires of challenges on the violations of a number of Basic Law provisions.

4.  All the enquires in the applicant’s emails involved public interest, especially on the appointment of the Chief Justice of the Judiciary at that time (2020-03-24).  This of course directly affected the direction and efficiency of the judicial reforms in the future.

5.  As heads of government departments, the 1^st and 2^nd respondents have unavoidable responsibility to provide official, reasonable and relevant explanation or clarification in relation to challenges and enquiries involving public interest; moreover, to the government officials in high positions involved in the case, there may be impact especially on their reputation and it may likely involve malicious defamation and lies.  The consequences could be detrimental.

6.  Recently (2022-8-17) the applicant contacted the 1^st and 2^nd respondents by means of post and email again for enquiries, but they insisted on their silence and did not give any official reply or decision; in the face of this endless omission and as public officers and heads of departments, the 1^st and 2^nd respondents are obviously in neglect of their duty and are in direct violation of public interest and the public’s right to know.

7.  According to the provision of Article 90, Chapter IV of the Basic Law, Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the above executive authorities and their personnel.

11.  As a result, it appears that the Applicant’s intended challenge is to the CE’s and the SJ’s failure to respond directly to his emails, each of which email is said to be in respect of the Applicant’s own “open accusation” – made in his two uploaded YouTube videos on 3 and 9 February 2022 – against certain judges of the Hong Kong SAR for “breaking the law knowingly and violating the Basic Law”.

12.  Indeed, at the oral hearing, the Applicant stressed that the purpose of his application is to seek to enforce the CE and SJ to respond to his emails.

C.  Any Merits in Application?

13.  However, none of the reasons for relief given by the Applicant seem to me properly to identify any alleged public law error on the part of either the CE or the SJ.  All that the Applicant really says is that he has made enquiries which he regards as involving the public interest, and that he has not been given any official reply or response.  He suggests that the CE and SJ have an unavoidable responsibility to provide official, reasonable and relevant explanation or clarification in relation to challenges and enquiries involving public interest.  The Applicant has in his papers, however, failed to identify either (1) how the alleged “unavoidable responsibility” arises, or (2) any other legal requirement or policy which is said to have been subject to an identified public law breach reflected in the failure to have received any official reply or response.

14.  Indeed, in the letter to the Court dated 13 February 2023, the Applicant himself said that the application is nothing to do with any sophisticated legal issues, and instead is merely a simple matter requesting the HKSAR Government, a non-private organisation, to do “nothing but reply” accordingly to the Applicant’s emails sent directly to the CE and SJ respectively.

15.  In the same letter – as well as in the letter dated 3 April 2023 – the Applicant asserted that it is “certainly the duty of the HKSAR government, a non-private organisation, to serve the Society by responding accordingly and effectively to the Public without excuse and delay, particularly in dealing with serious matters concerning the Public Interests and Hong Kong Basic Law”.  But this also fails to identify the basis of the alleged duty.

16.  In his written materials, the Applicant made reference to various articles of the Basic law.  The Applicant referred to Articles 27, 30, 35 and 90.  But:

(1)  Article 27 is the article giving Hong Kong residents freedom of speech, and so forth.  Whilst the Applicant can say that he has exercised his freedom of speech in the expression of his views, the article does not assist him in identifying or establishing a public law error committed by either the CE or SJ.

(2)  Article 30 is the article protecting by law the freedom and privacy of communication of Hong Kong residents.  But, again, whilst the Applicant can say that he has exercised his freedom of communication (in sending emails to the CE and SJ), the article is not otherwise engaged on the facts of this matter, and it does not identify any public law error on the part of the CE or SJ.

(3)  Article 35 is the article giving Hong Kong residents the right to confidential legal advice and access to the courts, as well as the right to institute legal proceedings in the courts against the acts of the executive authorities under personnel.  But that article does not identify what public law error the CE or SJ is said to have made.

(4)  Article 90 is the article relating to the Chief Justice of the Court of Final Appeal.  Whilst the article has been referenced by the Applicant in his “open accusation”, it does not afford him a basis for the grant of leave to apply for judicial review against the CE or SJ.

17.  In his oral submissions at the hearing, the Applicant focused instead on Article 48 of the Basic Law, in particular Article 48(1), (2), (4), (6) and (7).  Those provisions provide as follows:

The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

(1)  To lead the government of the Region;

(2)  To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region;

(4)  To decide on government policies and to issue executive orders;

(6)  To appoint or remove judges of the courts at all levels in accordance with legal procedures;

(7)  To appoint or remove holders of public office in accordance with legal procedures;

18.  The Applicant submitted that these provisions are relevant, in particular paragraphs (2) and (7).  This is, he said, because the issues illustrated by him in the emails to the CE and SJ are connected to the Basic Law.  He said that there have been malpractices in society, which he needs the CE to look into – namely whether there has been any breach of the Basic Law.  The Applicant submitted that Article 48(2) makes the CE responsible for the implementation of the Basic Law, which is why the CE should look into the matters raised by the Applicant in his emails.  At least, the CE should give him (as he put it) “just a response”; but there has been no reply. Further, he submitted that Article 48(6) and Article 48(7) require the CE to appoint or remove judges or holders of public office, which steps may arise if the matters raised by the Applicant in his “open accusation” are investigated by the CE.

19.  However, I do not think that Article 48, and the various powers and responsibilities given to the CE by that article, reasonably arguably gives rise to any duty to answer any and all email enquiries or requests as may be sent to the CE, even if the sender of the emails suggests that the matters raised are in the public interest and relate to the Basic Law.

20.  It can also be noted that none of the Articles of the Basic Law referenced by the Applicant place any duty or responsibility onto the SJ, and the Applicant has not identified any other basis upon which he can assert a public law breach by the SJ.

D.  Conclusion

21.  In short, the Applicant has failed to identify any reasonably arguable grounds of intended review with any reasonable prospect of success.

22.  Therefore, the Applicant’s application for leave to apply for judicial review is dismissed.

23.  I make no order as to costs.