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

HCAL 1107/2023

[2023] HKCFI 1815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1107 OF 2023

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BETWEEN

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D E C I S I O N

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1.  The Applicant acts in person. On 6 July 2023, he filed a Form 86. I can deal with the matter on the papers, and this is my decision.

2.  The Form 86 identifies the putative respondent as the party as stated in the title of this action. In the field where the Applicant is supposed to identify the subject of the intended judicial review, he stated “declaration orders”. No relief sought or grounds on which relief is sought are stated on the Form 86.

3.  Reading the supporting affirmation and the exhibits filed in support of the leave application, it seems to me that the targets of the proposed challenge are the Civil Justice Reform (“CJR”) which was implemented in 2009 and Practice Direction SL1.2 (“PD SL1.2”) which became effective in 2014. The relief sought in the affirmation is a declaration from the Court to affirm as correct the position before the CJR and PD SL1.2 had come into effect. The Applicant also invoked Articles 25, 35, and 85 of the Basic Law (“BL25” etc) as the bases for his application.

4.  Trying my best to understand the affirmation, this application arises in the following context:

(1) The Applicant was the plaintiff in a personal injury action against the Commissioner of Police in DCPI 514/2019.

(2) There, the Applicant sought discovery of audio recordings of the calls he made to the Police’s 999 call centre.

(3) The Police made an affirmation to say that those recordings were no longer available by the time the discovery was sought.

(4) The District Court Judge accepted the Police’s affirmation and refused the discovery application.

(5) The Applicant sought leave to appeal against that decision before the same Judge, who refused to grant leave.

(6) The Applicant renewed his application before the Court of Appeal (“CA”) in CAMP 126/2022, but out of time.

(7) By a decision dated 8 December 2022, [2022] HKCA 1814, the CA refused to extend time.

5.  Somehow, the Applicant seems to have understood that his application in CAMP 126/2022 was refused because of the CJR and/or PD SL 1.2. He thought the discovery he sought in DCPI 514/2019 would be permissible had the rules which pre-dated the CJR and PD SL 1.2 were those to apply.

6.  That understanding is incorrect. Neither the CJR nor PD SL 1.2 were relied upon by the CA in refusing to grant extension of time. The CA refused to extend time because no satisfactory explanation was provided to explain the delay and in any event there were no merits in the proposed appeal. The CA restated the settled legal principle that the affirmation or affidavit of a party deposing to the documents disclosed on discovery is conclusive, unless the court can be satisfied (not on a conflict of affidavits, but either from the documents produced from anything in the affidavit made by that party, or by any admission by him in the pleadings, or necessarily from the circumstances of the case) that the affidavit does not truly state that which it ought to state. The CA endorsed the District Judge’s acceptance of the Police’s affirmation stating that the audio recordings were no longer in the possession of the Police.

7.  In any event, this leave application is wholly misconceived:

(1) The Applicant has failed to explain what is wrong with the CJR or PD SL1.2, in a public law sense, either by reference to CAMP 126/2022, to the Basic Law or to any other grounds.

(2) As said, the CJR and PD SL1.2 do not even feature in the reasoning of CA’s decision.

(3) Nor did the Applicant articulate how BL 25 (equality before the law), or BL 35 (right to legal advice, to institute proceedings against authorities, etc.) can assist him, save merely to assert that “it would have been unrightful (sic) to deprive his rights”.

(4) Nor is the Applicant assisted by his reference to BL 85 (judicial immunity). There is no merit in the Applicant’s apparent suggestion that a judge who applies the CJR and/or PD SL1.2 would act in repudiated breach of the appointment contract or reaffirm the repudiatory breach of another judge.

(5) Essentially, the Applicant has only stated that the new position since CJR or PD SL1.2 is detrimental to the procedures previously adopted by litigants and lawyers, legislators and judges. This is baseless.

(6) As regards his own particular case, all the Applicant has asserted is that the audio recordings of the 999 calls are “fundamentally a must to specifically guarantee” his rights under BL28. If that is not a typographical error, the reference to BL28 – which relates to the freedom of the person of Hong Kong residents being inviolable – makes no sense in this context. If it is a typographical error for BL 25, then without more, I fail to see how access to the audio recordings is necessary to ensure his equality before the law, or how that is connected to the CJR or PD SL1.2.

(7) There is nothing in the Applicant’s apparent suggestion that judges applying the CJR and the practice direction would somehow be acting contrary to their duties or might give rise to “retaliation” against them.

(8) Whilst the Applicant expressly stated that he was not seeking an order to quash the CA’s decision in CAMP 126/2022, this judicial review application is an attempt to make a collateral attack on the CA’s decision and is an abuse of process.

(9) Any challenge to the CJR and PD SL1.2, which were implemented in 2009 and 2014 respectively, are grossly out of time. No extension of time was sought and in any event I see no reason to grant any extension.

8.  The Applicant’s application for leave to apply for judicial review is utterly without merit. It is dismissed, with no order as to costs.