郭卓堅 AND ANOTHER v. 香港行政長官林鄭月娥女士

HCAL 2573/2019

[2019] HKCFI 2252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2573 OF 2019

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicants seek to challenge the decision of the Chief Executive not to establish a Commission to inquire into whether the Police have acted in abuse of their powers and the reasons for the recent continuous protests seen in Hong Kong. It is alleged that the Chief Executive’s failure to do so amounts to improper conduct (行為失當) and is contrary to the reasonable, or legitimate, expectation (合理期望) of the Applicants and the public. Accordingly, the Applicants seek a court order to require the Government to appoint a Commission to inquire into the recent protests arising from the proposed amendments to the Fugitive Offenders Ordinance, Cap 503, why the protesters have refused to compromise with the Government despite more than 2 months of protests, whether the Police have abused their powers against the citizens, whether the protesters have gone too far, and whether it is reasonable of the Police to use force to stop or suppress the protests.

2.  In my view, the application is not reasonably arguable, and has no realistic prospect of success, for the following reasons.

3.  First, under Section 2(1) of the Commission of Inquiry Ordinance, Cap 86, the power to appoint a Commission is vested in the Chief Executive in Council, which is defined in Section 3 of the Interpretation and General Clauses Ordinance, Cap 1, to mean “the Chief Executive acting after consultation with the Executive Council”.  The court has no power to appoint, or direct or compel the Chief Executive in Council to appoint, a Commission.

4.  Second, it has not been contended, and cannot reasonably be contended, that the Chief Executive in Council is under a legal duty to appoint a Commission, or has acted in breach of a legal duty for failing to do so.  In so far as “legitimate expectation” is concerned, such expectation would generally only arise from a relevant representation, by words or a previous consistent course of conduct, made by the decision-maker.  No such representation exists, or is alleged to exist, in the present case.

5.  Third, the relief sought by the Applicants are plainly inappropriate to be granted by the court.  The Applicants invite that court to order the Government to establish a Commission, without identifying the precise incident or incidents which the Commission is supposed to inquire into or the scope of inquiry or terms of reference of the Commission.  No Commission can properly function unless these matters are clearly and precisely defined.

6.  The question of whether a Commission should be established in the prevailing circumstances in Hong Kong is plainly a political decision.  As the court has repeatedly emphasised, it is not the function of the court in an application for judicial review to resolve political issues. The court can only determine legal issues properly defined in a Form 86 and raised by an applicant with a sufficient interest in the matter to which the application relates.  The present application is an attempt by the Applicants to ask the court to make a political decision which it has no power to make. It amounts to an abuse of the court’s process and must be rejected.

7.  Accordingly, the application for leave to apply for judicial review is dismissed.