莊裕安 v. 終審法院

CACV 552/2019

[2020] HKCA 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 552 OF 2019

(ON APPEAL FROM HCAL 2941/2019)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  The Applicant, Mr Chong, sought leave by a Form 86 in HCAL 2941/2019 to apply for judicial review against the determination of the Appeal Committee of the Court of Final Appeal dated 14 August 2019 in FAMV 98/2018. After hearing submissions from Mr Chong on 14 November 2019, Chow J (“the Judge”) refused to grant leave on 22 November 2019. The reasons for the refusal were set out in a judgment of 22 November 2019 (“the Judgment”).

2.  Mr Chong’s application was premised on his contention that the Chief Justice (“Ma CJ”), who was a member of the Appeal Committee in FAMV 98/2018[1], was also a party to the litigation in FAMV 98/2018.  Due to the rule against bias, Mr Chong argued that the Appeal Committee was not properly constituted and its determination should be set aside.

3.  In the Judgment, the Judge held that the 1^st Defendant in FAMV 98/2018 was the Court of Final Appeal and Ma CJ was not a party to the proceedings.  Thus, there was no irregularity for Ma CJ to determine FAMV 98/2018 as a member of the Appeal Committee in those proceedings.

4.  Alternatively, the Judge also held that the principle of necessity applied.

5.  In any event, the Judge held that the decision of the Appeal Committee, being a judicial decision, was not amenable to judicial review.

6.  Mr Chong appealed against the Judgment.

7.  In light of the potential ramifications of the issues raised in the appeal, the Court directed that the Secretary for Justice be joined as the Intervener and appointed an amicus to assist the Court.

8.  We heard the appeal on 9 September 2020.  We had the benefit of very comprehensive submissions from Ms Lam (for the Intervener) and Ms Sit SC as amicus.  We also had submissions from Mr Chong.

9.  Based on the submissions before us, the following are the issues in the appeal:

(a) Whether the decision of the Appeal Committee is amenable to judicial review;

(b) Whether Ma CJ was the 1^st Defendant in FAMV 98/2018;

(c) Even if Ma CJ was not the 1^st Defendant, whether there was room for the operation of the common law principles of automatic disqualification and apparent bias; and

(d) Whether the principle of necessity was applicable.

10.  We shall recite the background and some salient facts before we discuss these issues.

11.  FAMV 98/2018 was an application for leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal in CACV 185/2017 on 1 June 2018[2].  By that judgment, the Court of Appeal[3] dismissed Mr Chong’s appeal against the striking out of his claims in HCA 244/2017[4].  After leave to appeal to the Court of Final Appeal was refused by the Court of Appeal[5], Mr Chong applied in FAMV 98/2018 to the Appeal Committee for leave to appeal. 

12.  In the Form B of 5 December 2018 filed by Mr Chong with the Court of Final Appeal in FAMV 98/2018, the 1^st Defendant was named as “終審法院” (viz Court of Final Appeal) and the questions framed by Mr Chong for which he sought the determination by the Court of Final Appeal were as follows[6]:

“ 【問題一】

當高等法院排期主任安排了三名外藉法官處理原告人的上訴案，其後，該排期主任可否過後擅自更改為三名華籍法官，這是否違反終審法院在【吳少彤對入境事務處處長（2002）5 HKCFAR 1】所訂下的合理期望原則（Legitimate expectation）？

【問題二】

與此同時，民事上訴司法常務官和上訴法庭張澤祐法官指定用中文進行實質的上訴聆訊，是否達[違]反了《法定語文條例》（第5章）第5條？

【問題三】

原訟法庭周家明負責處理HCA 244/2017案的上訴，但他卻於HCAL 950/2017案中、以主審法官的身分來決定是否由單語或雙語法官組成審理CACV 185/2017的上訴法庭，角色已存在衝突，並違反終審法院【Deacons （A Firm） v. White & Case LTD Liability Partnership (2003) 6 HKCFAR 322】所訂下的法律原則！

【問題四】

由於【高院排期主任、民事上訴司法常務官和上訴張澤祐法官】明顯犯了法律上的錯誤，因此，三名雙語法官所組成的上訴法庭是否需要解散？”

13.  It can be seen immediately that the questions raised by Mr Chong focused on the process in the High Court as opposed to the substance of the determination of Mr Chong’s claims in the original action, HCA 244/2017.  Questions (1), (2) and (4) related to the listing arrangement and direction for use of Chinese language in CACV 185/2017 whilst Question (3) related to the alleged conflict of roles of Chow J in HCAL 950/2017.

14.  The writ in HCA 244/2017 was issued by Mr Chong on 3 February 2017.  In the writ, the 1^st Defendant was “香港終審庭” viz the Hong Kong Court of Final Appeal.  The 2^nd Defendant was the Registrar of the Court of Final Appeal, Mr Simon Kwang.  The 3^rd to 5^th Defendants were Ribeiro PJ, Tang PJ and Fok PJ.

15.  The subject matters of the claims in HCA 244/2017 were the determinations of the Appeal Committee in FAMVs 3, 4, 12 and 28/2016.  The members of the Appeal Committee processing those applications were Ribeiro PJ, Tang PJ and Fok PJ.  They were applications for leave to appeal from 4 different judgments of the Court of Appeal.  The applications were dismissed under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A as disclosing no reasonable grounds for leave to appeal. 

16.  Mr Chong alleged in the Writ (endorsed with a Statement of Claim) that the Appeal Committee in FAMVs 3, 4, 12 and 28/2016 did not consider his applications seriously and, in particular, he doubted the ability of Ribeiro PJ[7] to read his applications which were written by Mr Chong in Chinese.  He alleged that the Court of Final Appeal discriminated against litigants in person who made applications in Chinese by not arranging enough judges who were familiar with Chinese to sit in the Appeal Committee.  In the writ, he sought damages in the sum of $68,900,000 with interest and costs.  

17.  We should mention that throughout the course of this piece of litigation (viz HCA 244/2017, CACV 185/2017 and FAMV 98/2018), the defendants were not represented and no documents or submissions had been filed or lodged by them.

18.  After hearing Mr Chong on 13 April 2017, Registrar Lung of the High Court struck out the claims in HCA 244/2017.  In the judgment of 21 April 2017, the Registrar clearly referred to the 1^st Defendant as the Court of Final Appeal.  He also explained at [13] of the judgment that as the Court of Final Appeal was not a legal entity, it was not a proper party to an action.

19.  Mr Chong appealed against the decision of the Registrar.  In the Notice of Appeal of 5 May 2017, he unilaterally changed the name of the 1^st Defendant to “終審法院首席大法官馬道立”, viz Ma CJ.  He did so without obtaining any order of the court to allow such amendment and he did not amend the Writ or Statement of Claim.  Paragraph 2 of the Notice of Appeal sought the relief that Ma CJ be substituted as the 1^st Defendant in place of the Court of Final Appeal.

20.  He also filed an affirmation of 5 May 2017 in which he named the 1^st Defendant in a similar manner.

21.  The appeal was heard by Chow J on 20 July 2017. In the judgment of 28 July 2017, Chow J dismissed the appeal.  In that judgment, Chow J held that the claims of Mr Chong were frivolous and vexatious and disclosed no reasonable cause of action.  He did not grant any order for substituting Ma CJ as 1^st Defendant.  Accordingly, the written judgment and the formal order issued by the Court named “香港終審庭” viz Hong Kong Court of Final Appeal as the 1^st Defendant in the same manner as the Writ and Statement of Claim (which, as observed earlier, had not been amended).

22.  Mr Chong issued a Notice of Appeal on 21 August 2017 against the judgment of Chow J in HCA 244/2017.  In that Notice of Appeal, he continued to name Ma CJ as the 1^st Defendant.  He persisted in doing so in all the documents he filed in the appeal in CACV 185/2017 until his summons of 27 August 2018 (in which he reverted to name “香港終審法院” viz Hong Kong Court of Final Appeal as the 1^st Defendant).

23.  As mentioned, the appeal in CACV 185/2017 was dismissed by the Court of Appeal on 1 June 2018 with reasons for judgment handed down on 7 June 2018.  In the reasons for judgment and the formal order drawn up in the appeal, the 1^st Defendant was “香港終審庭” viz Hong Kong Court of Final Appeal.

24.  Mr Chong however brought to our attention that during the course of the appeal, there were correspondence with the Court in which letters from the Court were copied to Ma CJ together with the other defendants.  Mr Chong said it was plain that Ma CJ was regarded by the Court as the 1^st Defendant.

25.  Whilst Mr Chong may have some basis for labouring under such misapprehension, we must point out that it is the practice of court clerks to copy letters to those named in the court documents filed by litigants or their solicitors.  Since Mr Chong had chosen to state the name of Ma CJ as the 1^st Defendant, the clerks who issued letters simply copied the same.  But the clerks had no legal authority to grant any leave to amend and could not change the true legal position (which we shall examine at greater length below). 

26.  In contrast, in the judgments and the formal orders issued by the judges in HCA 244/2017 and CACV 185/2017, the 1^st Defendant had consistently been named according to the writ, viz “香港終審庭”.

27.  In the judgment of 7 June 2018 dismissing the appeal, the Court of Appeal (Kwan and Poon JJA, as they then were, and Au-yeung J) held that by virtue of Article 85 of the Basic Law, Mr Chong could not mount any claims against the judges in respect of the determination in FAMVs 3, 4,12 and 28/2016[8].  It was held that the allegations raised by Mr Chong against Chow J were unfounded[9].  The Court of Appeal also upheld the reasons of Chow J in upholding the striking out of the claims in HCA 244/2017[10].

28.  After the dismissal of the appeal, Mr Chong issued a Notice of Motion of 28 June 2018 seeking leave to appeal to the Court of Final Appeal.  In that Notice of Motion, he still named Ma CJ as the 1^st Defendant notwithstanding the written Reasons for Judgment of the Court of Appeal of 7 June 2018 indicating otherwise.

29.  However, on 27 August 2018, Mr Chong issued:

(a) A notice of intended appeal to the Court of Final Appeal in which he named “香港終審法院” viz Hong Kong Court of Final Appeal as the 1^st Defendant;

(b) A summons applying for the amendment of his Notice of Motion of 28 June 2018, in which he also named “香港終審法院” viz Hong Kong Court of Final Appeal as the 1^st Defendant;

(c) A notice of motion setting out the 4 questions and naming “香港終審法院” viz Hong Kong Court of Final Appeal as the 1^st Defendant.  In the notice of motion, he also stated that this document replaced the notice of motion of 28 June 2018.

30.  Thus, when the Court of Appeal (Yeung Ag CJHC, Lam V-P and Chu JA) processed the application for leave to appeal, it granted leave to amend as requested in the summons of 27 August 2018 and considered Mr Chong’s application on the basis of the 27 August 2018 notice of motion[11] (viz that the 1^st Defendant was “香港終審法院” Hong Kong Court of Final Appeal).  The 4 questions were in substance the same as the 4 questions put before the Appeal Committee in Mr Chong’s Form B of 5 December 2018 in FAMV 98/2018.

31.  The Court of Appeal refused to grant leave on 31 October 2018.  Mr Chong then applied to the Court of Final Appeal for leave to appeal in FAMV 98/2018.  In the two forms filed by Mr Chong for such purpose (Form A dated 23 November 2018 and Form B of 5 December 2018), the name of the 1^st Defendant was “終審法院” (viz Court of Final Appeal). In an affirmation of 5 December 2018, Mr Chong stated the 1^st Defendant as “香港終審法院” viz Hong Kong Court of Final Appeal.  The Appeal Committee (Ma CJ, Cheung PJ and Chan NPJ) dismissed the application under Rule 7 on 14 August 2019.

32.  After leave to appeal had been refused in CACV 185/2017 and FAMV 98/2018, on 8 October 2019 Mr Chong sought leave in HCAL 2941/2019 to apply for judicial review against the decision of the Appeal Committee in FAMV 98/2018.  We have already alluded to Chow J’s reasons for refusing to grant leave in HCAL 2941/2019.

Decision of the Appeal Committee not amenable to judicial review

33.  We can now turn to the first issue: amenability of the decision in FAMV 98/2018 to judicial review.

34.  The decision of the Appeal Committee in FAMV 98/2018 was a judicial decision of a court of superior record.

35.  The Court of Final Appeal is a superior court of record: see Section 3 of the Hong Kong Court of Final Appeal Ordinance (“the Ordinance”) Cap 484.

36.  The Appeal Committee exercised the power of the Court of Final Appeal in determining if leave to appeal should be granted, see Section 18(2) of the Ordinance.  Its decision on grant or refusal of leave shall be final and not subject to appeal, Section 18(3).

37.  It is trite that the supervisory jurisdiction of the High Court by way of judicial review cannot be invoked to challenge a judicial decision of the High Court (including the Court of Appeal) and the Court of Final Appeal: see In re Racal Communications Ltd [1981] AC 374 at p.384F to G; 392G to H; P v Commissioner of ICAC (2007) 10 HKCFAR 293 at [37]; R (Cart) v Upper Tribunal [2011] QB 120 at [71].  

38.  Errors of judicial decisions of the High Court (which is a court of unlimited jurisdiction) are to be corrected by the avenue of appeals.  The appellate regime in our judicial system is designed with a view to the striking of a proper balance between finality and availability of further review of judicial decisions by more experienced and senior judges[12].  The maintenance of the rule of law (which is the object of judicial review, see Baroness Hale in R (Cart) v Upper Tribunal [2012] 1 AC 663 at [37]) does not require the reconsideration of the appellate decisions of a higher court (including decisions on leave to appeal) by the Court of First Instance by way of judicial review.  This rationale is equally applicable when the challenge is brought, as Mr Chong did in HCAL 2941/2019, in respect of the composition of the appellate courts.

39.  On the contrary, allowing judicial review to be brought against decisions of the appellate courts would be incongruent with the objective of achieving finality in the judicial process.  In this connection, Mr Chong’s litigation history provides a good illustration of the never-ending circulation of his cases within our judicial system by virtue of his repeated issuance of misconceived judicial review proceedings and other kinds of actions against judges, including appellate judges hearing his cases.  Having failed all the way up to the Court of Final Appeal in the cases in FAMVs 3, 4,12 and 28/2016, he re-started the litigation process by HCA 244/2017 which again went all the way up to the Court of Final Appeal.  With the failure in FAMV 98/2018, he again re-started the process in HCAL 2941/2019 and now comes before us by way of appeal.

40.  Since the Court of Final Appeal is the court of final adjudication[13], there is no further avenue of appeal in the court system.  However, in England, it was held by the House of Lords in R v Bow Street Magistrate, Ex p Pinochet (No 2) [2000] 1 AC 119 that an ultimate court of appeal has inherent jurisdiction to address injustice in that court’s judgment in circumstances where a party has been subjected to an unfair procedure through no fault of his own.  In that case, the first judgment of House of Lords was set aside on the petition of the applicant on the ground of the automatic disqualification of one member of the court which delivered the first judgment.

41.  In other common law jurisdictions, their respective ultimate court of appeal also has similar power: State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29; Saxmere Company Ltd v Wool Board Disestablishment Company (No 2) [2009] NZSC 122; Bula Ltd v Tara Mines Ltd (No 6) [2000] 4 IR 412.  Such inherent power to correct injustice through no fault of the parties in some circumscribed situations appears to be incidental to an ultimate court, see also R (Edwards) v Environment Agency (No. 2) [2011] 1 WLR 79 at  [35] and R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 4) [2016] UKSC 35 at [5].  

42.  Both Ms Lam and Ms Sit submitted that the Pinochet jurisdiction is equally available in Hong Kong in respect of decisions of the Court of Final Appeal.  Whilst we cannot see any reason to disagree as a matter of principle, we are of the view that this is not a question which this Court should decide.  The existence and limits of such jurisdiction should be a matter for the Court of Final Appeal.  Likewise, assuming such jurisdiction is available, whether on the facts and circumstances of the present case Mr Chong could rely on it to set aside the determination of the Appeal Committee in FAMV 98/2018 should also be a question for the Court of Final Appeal to decide.

43.  But we are of the clear and firm view that in light of the authorities cited above Chow J was correct in holding that Mr Chong could not resort to judicial review to challenge the determination of the Appeal Committee of 14 August 2019.

44.  For this reason alone, the appeal of Mr Chong should be dismissed.

Ma CJ was not a party to FAMV 98/2018

45.  As we have seen, the 1^st Defendant named in the Writ and the Statement of Claim in HCA 244/2017 was not Ma CJ.  It seems that at the hearing before Registrar Lung, Mr Chong came to the understanding that the Court of Final Appeal could not be defendant.  Whilst it was open to Mr Chong to apply for substitution of Ma CJ as the 1^st Defendant, he had to obtain leave from the court under Order 15 Rule 6 to do so.  It was not open to him to name Ma CJ as 1^st Defendant in place of the Court of Final Appeal unilaterally.

46.  Though he had sought such leave in his Notice of Appeal of 5 May 2017 in HCA 244/2017, Chow J did not grant the order because he upheld the striking out of the claims as having no merit.  The judgment and the formal order of Chow J therefore named the Court of Final Appeal as the 1^st Defendant.  Hence, the unilateral alteration of the name of the 1^st Defendant by Mr Chong had no legal effect.

47.  The Writ and Statement of Claim were not amended and as a matter of law the 1^st Defendant was still the Court of Final Appeal when Mr Chong brought his appeal in CACV 185/2017.  The Notice of Appeal was issued by Mr Chong and again he unilaterally altered the name of the 1^st Defendant to Ma CJ.

48.  Under Order 59 Rule 3(5), a notice of appeal has to be served on all parties to the proceedings in the court below who are directly affected by the appeal.  Since, as held above, Ma CJ had never been a party to HCA 244/2017, Mr Chong could not substitute him as a party to the appeal by way of his unilateral action.  The Court of Appeal has the power to join a party to an appeal who has not been party to the proceedings below.  However, such power had not been exercised by the Court of Appeal in CACV 185/2017.

49.  In the notices of hearing of CACV 185/2017 issued by the court[14], the 1^st Defendant was named as the Court of Final Appeal.  Ma CJ was not named as a party to the appeal.

50.  As explained above, though correspondence was copied to Ma CJ by the clerks, such acts would not make Ma CJ a party to the appeal when he was not so.  The judgment of 7 June 2018 and the formal order were drawn up with the Court of Final Appeal named as the 1^st Defendant instead of Ma CJ.

51.  Further, as mentioned above, Mr Chong himself reverted back to naming the Court of Final Appeal as the 1^st Defendant by his summons, notice of motion and notice of intended appeal of 27 August 2018.  It is thus beyond doubt that Ma CJ was not the 1^st Defendant.

52.  In the papers filed by Mr Chong in FAMV 98/2018, the 1^st Defendant was also the Court of Final Appeal instead of Ma CJ.

53.  It should also be mentioned that in the papers presented by Mr Chong to the Appeal Committee in FAMV 98/2018, the voluminous bundle of documents attached to Form B did not include the documents he had previously filed in HCA 244/2017 and CACV 185/2017 which named Ma CJ as 1^st Defendant.

54.  Hence, there was simply no basis for the Appeal Committee in FAMV 98/2018 to take a view contrary to what was set out in the judgments of the courts below and the court documents placed before them (including the Forms A and B filed by Mr Chong).  From those documents, it was quite clear that the Court of Final Appeal (as opposed to Ma CJ) was named as the 1^st Defendant.

55.  Thus, in the Rule 7 summons and order made by the Appeal Committee in FAMV 98/2018, the 1^st Defendant was named as “香港終審庭”.

56.  In the circumstances, we are of the firm and clear view that Chow J was correct in holding that Ma CJ was not a party to FAMV 98/2018 or the proceedings below in HCA 244/2017 and CACV 185/2017.

The common law principles of automatic disqualification and apparent bias

57.  However, the common law principle that one cannot be a judge of his own cause is not confined to the case where the judge is also a party to the proceedings.  As illustrated by R v Bow Street Magistrate, Ex p Pinochet (No 2), supra, even in cases where the judge is not a party, there would be automatic disqualification without investigation as to whether there was actual bias or suspicion of bias if (i) the judge is so substantially a constituent of a party as to be presumed to partake of its purpose as a participant in the proceedings; or (ii) the judge has a common interest with a party that the proceedings will have a certain outcome.  Such interest is not confined to pecuniary interest.

58.  Ms Sit referred us to the judgment in In re P (A Barrister) [2005] 1 WLR 3019 in which the principle was applied in the context of a panel of Visitors to the Inns of Court hearing a disciplinary appeal.  The panel (comprising of Coleman J with two members) summed up the legal position in England at [86] after reviewing the relevant authorities:

“ ... the key consideration for the purposes of automatic disqualification at common law in a case where the judge or tribunal member is not a party to the proceedings is the nature of that person’s connection with or relationship to a party and in particular whether that connection or relationship is such that the person in question must be treated as if the ‘cause’ of one of the parties was also his ‘cause’. The rationale for so treating such person is that by reason of the connection or relationship in question he is taken to share the interest of the party in a particular outcome.”

59.  In addition to the rule of automatic disqualification, a judge should recuse himself from sitting if there is apparent bias.  The relevant test, as stated in Deacons v White & Case LLP (2003) 6 HKCFAR 322, and applied by the Court of Final Appeal in HKSAR v Md Emran Hossain (2016) 19 HKCFAR 679 at [36]:

“ The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility … that the tribunal was biased.”

60.  The attribute of a fair-minded and informed observer was discussed by Lord Kerr in the Privy Council judgment in The Belize Bank Ltd v The Attorney General of Belize [2011] UKPC 36 at [36] to [39].  Such observer is neither complacent nor unduly sensitive or suspicious. He would have access to such information as may be necessary for an informed member of the public without any particular specialised knowledge or experience to make a dispassionate judgment.  But he is not an insider in the judicial system and his objectivity should not be compromised by being drawn too deeply into a familiarity with the system as that would make him too ready to overlook an appearance of bias[15].

61.  In the application of the apparent bias test, it was held in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [18] that the judge’s knowledge of the matter relied on as appearing to undermine his impartiality is relevant.

“ … because if it is shown that he did not know of it the danger of its having influenced his judgment is eliminated and the appearance of possible bias is dispelled…”

62.  As explained by the English Court of Appeal in Locabail, supra at [55], in this respect there is a difference between automatic disqualification and apparent bias.  In the former, the absence of knowledge on the part of the judge is irrelevant.  In the latter, the judge’s knowledge is essential.

63.  As we held earlier, this Court should not pre-empt the decision the Court of Final Appeal may reach if Mr Chong were to make an application under the Pinochet jurisdiction.  It is of course entirely a matter for Mr Chong to consider if he would make a Pinochet application to the Court of Final Appeal.  If such application is made, it would be processed by the Court of Final Appeal in light of, amongst other things, the relevant principles and authorities.

64.  However, in view of the trenchant remarks of Mr Chong against Ma CJ and the submissions we received from Ms Lam and Ms Sit, we should make the following observations based on the materials we have seen:

(a) There is no basis in Mr Chong’s contention that Ma CJ had a pecuniary interest in the outcome of HCA 244/2017.  Though Mr Chong advanced a claim of damages in the sum of $68,900,000, there was no indication in the voluminous documents filed by him as to how such figure came about.  In any event, as we held above, as Ma CJ was not a party to the action, he would not suffer any pecuniary loss whatever the outcome of that action may be.

(b) Mr Chong’s submission that Ma CJ would somehow be vicariously liable (“轉承責任”) for the action of the other judges or judicial officer in the Court of Final Appeal is wholly unsustainable in law.  In respect of conduct in terms of judicial decisions like the determinations under Rule 7 in FAMVs 3, 4, 12 and 28/2016, there is simply no reasonable causes of action by virtue of the immunity under Article 85 of the Basic Law.  In respect of administrative matters, such claim of liability is also not viable in law by virtue of Section 4(5) of the Crown Proceedings Ordinance, Cap 300, see Hahn-shin Micheline Suckhi v Government of HKSAR Bailiff CACV 62/2007, 17 December 2007 at [18] to [21].

(c) Insofar as Mr Chong relied on a letter of 29 September 2018 from the Court of Final Appeal to him to assert his un-pleaded and ill-considered arguments of conspiracy to pervert the course of justice and perjury, they are wholly groundless and unmeritorious.  This was a letter setting out the reply of the Registrar of the Court of Final Appeal (not Ma CJ) informing Mr Chong that the Appeal Committee was made up of 3 judges and the determinations in FAMVs 3, 4, 12 and 28/2016 were the unanimous decisions of the Appeal Committee and that the application in FAMV 38/2016 had yet to be determined.  We cannot see any valid basis for suggesting that such reply was given at the direction of Ma CJ or that its contents could constitute evidence of obstruction of justice, perjury or conspiracy.

(d) Ms Lam and Ms Sit submitted that by the time the case reached the Appeal Committee in the form of FAMV 98/2018, in light of the fact that the 4 questions formulated by Mr Chong had nothing to do with any exercise of any power by Ma CJ, there was no basis for suggesting that Ma CJ had any common interest with the defendants in FAMV 98/2018 or acted in breach of the principle against apparent bias in deciding if leave should be granted on those questions.

(e) The 4 questions had been set out above.  It is plain and obvious that there is no justifiable ground for suggesting Ma CJ had any personal cause in common with the defendants in FAMV 98/2018 in deciding if leave to appeal to the Court of Final Appeal shall be permitted on those questions in one way or another.

(f) However, we have not been referred to any authority to support the confinement of relevant consideration to issues for immediate determination when the outcome of an application could have effect on the fate of the underlying action[16] in which there could arguably be a common cause between a party and the judge.

(g) Further, after having opportunity to read the relevant documents in the court file of HCA 244/2017, Ms Lam and Ms Sit were constrained by Section 18(1) and (2B) of the Ordinance from submitting that Mr Chong could not seriously argue that the interest of the Court of Final Appeal was not in common with Ma CJ in respect of the claim directed against the nominations of judges to sit in the Appeal Committee hearing FAMVs 3, 4,12 and 28/2016[17].

(h) We should immediately say that we are not suggesting for one moment that such a claim is viable in law.  On the contrary, in light of Section 4(5) of the Crown Proceedings Ordinance, Cap 300 and Article 85 of the Basic Law, we cannot see any reasonable cause of action in law in that regard.

(i) But that is beside the point for present purposes.  The focus in the present context is whether Mr Chong could object to Ma CJ’s involvement in FAMV 98/2018 by reason of the common law principles discussed above.  Such principles are equally applicable even if a claim is a thoroughly bad one. 

(j) In light of our conclusion that judicial review is not available, this Court has no jurisdiction to decide on the propriety of Ma CJ’s involvement in FAMV 98/2018 in the context of this appeal as the appropriate forum for canvassing such issue is the Court of Final Appeal.

Principle of necessity   

65.  The Judge alluded to the principle of necessity in rejecting Mr Chong’s contention that Ma CJ should not sit in the Appeal Committee in FAMV 98/2018.  With respect, we disagree with the Judge on this point.

66.  We are grateful to Ms Lam and Ms Sit for referring us to some relevant authorities on the principle of necessity[18] as an exception to disqualification on the ground of presumed or apparent bias.  In Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1998] 1 SCR 3, Lamer CJ in the Supreme Court of Canada summarized the relevant principle at [5] as follows:

“ Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, there is an exception to this rule that allows a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his or her place. The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all.”

67.  The rationale for such exception was explained by Lamer CJ as grounded in the rule of law.  The learned Chief Justice cited the following passage from De Smith, Woolf & Jowell, Judicial Review of Administrative Action (5^th edn 1995) at p.544:

“ A person who is subject to disqualification [by reason of bias] in common law may be required to decide the matter if there is no other competent tribunal or if a quorum cannot be formed without him. Here the doctrine of necessity is applied to prevent a failure of justice.”

68.  Lamer CJ also endorsed the two qualifications to the exception set out by Deane J in the High Court of Australia in Laws v Australian Broadcasting Tribunal (1990) 93 ALR 435 at p.454:

“ There are, however, two prima facie qualifications of [the rule of necessity]. First, the rule will not apply in circumstances where its application would involve positive and substantial injustice since it cannot be presumed that the policy of either the legislature or the law is that the rule of necessity should represent an instrument of such injustice. Secondly, when the rule does apply, it applies only to the extent that necessity justifies.”

69.  In Hong Kong, Fok JA (as he then was) held at [68] of X v Education and Accreditation Committee, Medical Council of Hong Kong [2013] 1 HKLRD 167:

“ It is therefore apparent that, for the doctrine of necessity to apply, it must be shown that it is factually impossible for the decision to be taken by a decision-maker who is not tainted by apparent bias.”

70.  At the material time, there were more than one non-permanent Hong Kong judges who could not on any view be “conflicted out”.  Apart from Chan NPJ, the other non-permanent Hong Kong judges who were not named as defendants in HCA 244/2017 were Bokhary NPJ and Stock NPJ. 

71.  Under Section 18(2B) of the Ordinance, where a sufficient number of permanent judges is not available for any cause to sit on the Appeal Committee, the Chief Justice shall nominate a non-permanent Hong Kong judge to sit in place of a permanent judge.  This was a provision added to the Ordinance in September 1997, shortly after the Court of Final Appeal commenced its operation on 1^st July 1997.

72.  We have invited submissions on the proper construction of Section 18(2B) of the Ordinance, in particular on the issue whether subsection (2B) empowers the Chief Justice to nominate more than one non-permanent Hong Kong judges to sit in place of a permanent judge in the Appeal Committee.

73.  Ms Lam helpfully placed before us the legislative materials relating to the addition of such subsection to the Ordinance.  The subsection was added to address the problem that in the early days of the Court of Final Appeal there were pending applications to the Appeal Committee concerning decisions of the former Justices of Appeal who had since been elevated to become permanent judges of the Court of Final Appeal.  There was thus a need to empower the Chief Justice to nominate non-permanent judges to sit in place of those permanent judges.  

74.  As all three permanent judges were formerly Justices of Appeal in the Court of Appeal, if subsection (2B) is construed as being confined to the nomination of one non-permanent Hong Kong judge to sit in the Appeal Committee for a case, there is at least a theoretical possibility that there would be insufficient number of judges to constitute the Appeal Committee when the lower court’s decision was made by three judges who had been elevated to the position of permanent judges.

75.  Ms Lam submitted, supported by Ms Sit, that subsection (2B) should be construed as empowering the Chief Justice to appoint more than one non-permanent judges to sit in one Appeal Committee when such necessity arises.  Counsel said this is the natural and ordinary meaning of the subsection since the non-availability of permanent judges may not be limited to non-availability of one permanent judge.  Where more than one permanent judge is unavailable, the power of the Chief Justice to nominate non-permanent judges to sit should be exercisable to make up the otherwise insufficient number of judges by non-permanent judges.  Ms Lam’s construction is also reinforced by Section 7 of the Interpretation and General Clauses Ordinance, Cap 1. 

76.  Having regard to the object and purposes of subsection (2B) and the context in which the need to have such provision in place was considered, we agree with Ms Lam’s construction.

77.  Mr Chong’s contentions before us were also premised upon the construction that more than one non-permanent Hong Kong judge can be nominated to sit in the Appeal Committee.

78.  Hence, it was open to have FAMV 98/2018 listed before an Appeal Committee comprising of Cheung PJ and two non-permanent judges.

79.  In light of that, there was no scope for the operation of the doctrine of necessity in the present instance.

Two preliminary matters raised by Mr Chong

80.  Before the hearing, Mr Chong indicated by letters that he would seek to have this appeal to be heard by a court without Lam V-P and Au JA on the basis that the two of us had previously handled his cases and held against him.

81.  However, he did not make such application at the hearing.  For completeness sake, we would state that such application could not in any event succeed.  As submitted by Ms Lam and Ms Sit, it is well established that the previous involvement of a judge in cases involving the party and making adverse judicial decisions against him per se is not a sufficient ground for seeking recusal: Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at [25]; Otkritie International Investment Management Ltd v Urumov [2014] EWCA Civ 1315, [16] to [22].

82.  At the commencement of the oral hearing, Mr Chong applied for an adjournment to give him more time to study the cases cited by Ms Lam and Ms Sit.  We refused to grant such adjournment as counsel had supplied the authorities in accordance with the time table prescribed by the directions of the court.  Though supplemental authorities were added, we did not consider that it would be unfair to proceed with the hearing in light of the issues before us and the relevance of the supplemental authorities to the contested matters.  We refused the adjournment but indicated to Mr Chong that we would give him an opportunity to file further written submissions after the hearing to comment on the cases if he so wished.

83.  After counsel had completed their oral submissions, Mr Chong indicated in his oral reply that he did not need to address the Court on the authorities and he declined to take up our suggestion for him to lodge further written submissions on the authorities.

Disposition

84.  For the reasons given above, we dismiss the appeal.  We also order by way of costs order nisi that there be no order as to costs in this appeal in light of the joinder of the Secretary for Justice by the Court on public interest ground.

85.  We would also express our gratitude to Ms Sit and Ms Lam for their thorough research and able assistance.