莊裕安 v. 終審法院司法常務官 AND ANOTHER

CACV 216/2019 &

CACV 217/2019

[2020] HKCA 177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 216 OF 2019

(ON APPEAL FROM HCAL 25/2019)

________________________

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 217 OF 2019

(ON APPEAL FROM HCAL 1699/2018)

________________________

________________

J U D G M E N T

________________

The Court:

1.  This is an appeal by the Applicant against the decision of Chow J (“Judge”) of 26 April 2019 dismissing the Applicant’s applications for leave to apply for judicial review in HCAL 1699/2018 and HCAL 25/2019 and two summonses issued respectively therein on 24 September 2018 and 14 January 2019.

2.  As the Applicant has indicated that he is well conversant with the English language and he is seeking an order for all future hearings to be fixed before an English speaking foreign judge, this judgment is written in the English language.

The applications before the Judge

3.  As seen in paragraph 1 of the Judge’s decision, there were 4 applications before the Judge.  To summarise, the Applicant’s applications before the Judge concerned the questions as to (i) whether the Registrar of the Court of Final Appeal (“Registrar”) ought to have given reasons in issuing a summons under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484 (“CFA Rules”), (ii) whether the Judge should have recused himself and/or ordered the Applicant’s applications be dealt with by an English speaking foreign judge, and (iii) whether the letter of 27 December 2018 from the Court of Final Appeal ought to have informed him of the composition of the Appeal Committee.

CACV 216/2019 (in relation to HCAL 25/2019) 

4.  In this matter, the Registrar issued a summons under Rule 7 of the CFA Rules (“Rule 7 Summons”) on 7 December 2018 to the Applicant calling upon the Applicant to show cause before the Appeal Committee why his application for leave to appeal in FAMV 98/2018 should not be dismissed. 

5.  After the issue of the Rule 7 Summons, there were 3 letters dated 14, 19 and 24 December 2018 sent by the Applicant to the Court of Final Appeal which then sent a letter of reply dated 27 December 2018, stating that the Court of Final Appeal had received the letters from the Applicant and would respond as soon as possible.

6.  Before waiting for a substantive response or the decision of the Appeal Committee, on 4 January 2019, the Applicant lodged his Form 86 for leave to apply for judicial review in respect of (i) the procedure relating to the issue of the Rules 7 Summons and (ii) the letter dated 27 December 2018.

7.  It was the Applicant’s complaint in his Form 86 that the Registrar did not give any reasons in issuing the Rule 7 Summons, and that the Registrar was under a duty to do so. As for the letter dated 27 December 2018, it was the Applicant’s complaint that, notwithstanding his repeated enquiries, there was no response in the letter as to who would be the judges appointed in the Appeal Committee to deal with his matter.  The Applicant’s enquiries arose out of his concern that there would be conflict of interest as the Court of Final Appeal and 3 permanent judges were named as defendants in HCA 244/2017 (the underlying action which led to CACV 185/2017, FAMV 98/2018, HCAL 25/2019 and his present appeal).

8.  In the Applicant’s Notice of Appeal, he seeks the following orders:

(i)  Leave for judicial review be granted;

(ii)  There be a direction that all future hearings for his present judicial review be fixed before an English speaking foreign judge;

(iii)  There be an oral hearing;

(iv)  The appeals to be dealt with separately as the Applicant had paid separately for the costs of his two appeals.

9.  There are 8 grounds of appeal in the Applicant’s Notice of Appeal (“Grounds”).  None of those Grounds really touch on the letter dated 27 December 2018 and in any event, insofar as that letter is concerned, as pointed out by the Judge in paragraph 13 of his decision, this letter is plainly not something which can form the subject matter of a challenge in an application for judicial review.  The Judge is clearly right.

10.  Further, the Appeal Committee subsequently dismissed the Applicant’s leave application in FCMV 98/2018 on 14 August 2019.  This has led to the Applicant applying for leave for judicial review in HCAL 2941/2019, which was dismissed by the Judge on 14 November 2019.  The Applicant has now lodged an appeal against that decision in CACV 552/2019.  Hence, the composition of the members of the Appeal Committee and the decision by the Appeal Committee in FAMV 98/2018 should now be matters to be raised in his appeal in CACV 552/2019, and not in the present appeal.

11.  Grounds 1, 2, 5, 6 and 7 concern complaints that the Judge had failed to uphold judicial independence and/or neutrality and/or objectiveness by firstly refusing to recuse himself notwithstanding the Judge had dealt with previously two related applications HCA 244/2017 and HCAL 950/2017 respectively in 2017 and 2018, and secondly by referring to the directions made by Cheung JA in the Applicant’s appeal CACV 185/2017 ( in relation to HCA 244/2017) prior to his decision on 24 January 2018 in relation to HCAL 950/2017.

12.  As the Judge had pointed out, the fact that he had dealt with some related proceedings including HCA 244/2017 and HCAL 950/2017 and had ruled against the Applicant was not a valid or sufficient ground in support of an application that the Judge should not hear the present applications.

13.  As further pointed out by the Judge, the Applicant’s similar complaint was rejected by the Court of Appeal in 莊裕安 v高院上訴排期主任吳素蘭, CACV 31/2018, [2018] HKCA 502, where it was held at paragraphs 9 and 10, as follows:

“9. 申請人因為某法官曾就他涉及的案件判他敗訴，便指該名法官對他有偏見，屬司法不公的立場是錯誤及沒有基礎支持的。法庭處理案件是根據案件的是非曲直作出裁決。法官不會對與訟任何一方有偏見，更不會因為對一方有偏見而作對該方不利的裁決。

10.  法庭多次作出對申請人不利的判決，唯一的原因是申請人在該些案件中的立場和論點不合理，沒有基礎支持，而非法官對他有偏見。法官不接納申請人的立場和論點，並非是司法不公而是申請人的立場和論點沒有法理支持。”  

14.  In light of the above, Grounds 1,2,5,6 and 7 must fail.  Further, the Applicant has no right to insist that his application or appeal shall be heard by English speaking foreign judges. He is unable to pintpoint any actual or perceived bias on the part of the bilingual judges by reference to the reasoned judgments of those judges given against him.  The mere fact that the decisions went against him cannot be a proper ground for recusal.

15.  The complaints in Ground 3 and Ground 4 appear to be in relation to an allegedly missing affirmation in HCAL 950/2017 and the Judge’s decision in HCAL 950/2017.  The Applicant stated that in August 2018 he had made a report to the Wanchai Police Station regarding the allegedly missing affirmation he filed with the High Court in 2017 and that the matter was under investigation.  Having heard the Applicant, we are quite satisfied that these matters are irrelevant to the Applicant’s present appeal.

16.  Finally, Ground 8 concerns the Applicant’s complaint that the Judge had ignored his reasons for applying for leave for judicial review and that those reasons were still valid.

17.  In relation to the Applicant’s challenge to the procedure adopted by the Registrar in issuing a Rule 7 Summons on 7 December 2018 without giving any reasons in support of his opinion that the application in FAMC 98/2018 disclosed no reasonable grounds for leave to appeal, the Judge essentially gave 3 reasons as follows:

(1)  The decision of the Registrar to issue a Rule 7 Summons under Rules 7(1) of the CFA Rules and the decision of the Court of Final Appeal in dismissing the application for leave to appeal under Rule 7(2) of the CFA Rules are not matters amenable to judicial review: see 鄧淑珍v終審法院司法常務官, CACV 579/2018, [2019] HKCA 413, at paragraph 17.

(2)  The decision of the Registrar to issue a Rule 7 Summons is an intermediate or procedural decision which does not give rise to any substantive consequence: see 郭卓堅 v林鄭月娥特首連同行政會議成員, HCAL 453, 455, 458 & 460/2017 (27 September 2017), at paragraphs 28 and 29;

(3)  The purpose of Rule 7 is to filter out obviously unarguable applications for leave to appeal in an expeditious manner.  Whether an application in fact discloses any reasonable grounds for leave to appeal is a matter for determination by the Appeal Committee, and an applicant will have a full opportunity to make written submissions to the Appeal Committee to justify the application.  There is nothing in the CFA Rules to suggest that the Registrar is under any duty to give reasons when issuing a summons under Rule 7.

18.  The Applicant had not in his Skeleton Arguments set out any grounds as to how the Judge had erred in his above reasons.  Having considered the Applicant’s arguments, we find no merits in the Applicant’s appeal.

CACV 217/2019 (in relation to HCAL 1699/2018)

19.  In HCAL 1699/2018, the Registrar had issued a Rule 7 Summons to the Applicant calling upon the Applicant to show cause before the Appeal Committee why his applications for leave to appeal in FAMV 3, 4, 12, 28, and 38/2016[1] should not be dismissed.

20.  It was again the Applicant’s complaint in his Form 86 that the Registrar did not give any reasons in issuing the Rule 7 Summons, and that the Registrar was under a duty to do so.

21.  The Applicant now seeks the same orders set out in paragraph 8 above.

22.  There are again a total of 8 grounds in the Applicant’s Notice of Appeal which are almost identical to those set out in the Applicant’s Notice of Appeal in CACV 216/2019. 

23.  As mentioned earlier, Grounds 1, 2, 5, 6 and 7 concern complaints that the Judge had failed to uphold judicial independence and/or neutrality and/or objectiveness by firstly refusing to recuse himself notwithstanding the Judge had dealt with previously two related applications HCA 244/2017 and HCAL 950/2017 respectively in 2017 and 2018, and  secondly by referring to the directions made by Cheung JA in the Applicant’s appeal CACV 185/2017 (in relation to HCA 244/2017) prior to his decision on 24 January 2018 in HCAL 950/2017.

24.  We reiterate that the fact that the Judge had dealt with some related proceedings including HCA 244/2017 and HCAL 950/2017 and had ruled against the Applicant was not a valid or sufficient ground in support of an application that the Judge should not hear the present applications.

25.  We repeat what was said earlier in paragraphs 13 to 18.  In addition to the 3 reasons set out earlier in paragraph 18, the Judge had pointed out that the Appeal Committee had confirmed the Registrar’s view that the applications in FAMV 3, 4, 12, 28, and 38/2016 disclosed no reasonable grounds for leave to appeal, and accordingly dismissed them, and thus the question of whether the Registrar ought to have given reasons for his opinion that the applications disclosed no reasonable grounds for leave to appeal was academic.

26.  We agree with the reasons given by the Judge.  It is a trite and well-established principle in public law that the courts will not entertain a judicial review in respect of a prior decision which has been overtaken by a decision of a higher level: see Re Ng Kin Wo Johnny HCAL 114 & 115 of 2010, 18 Nov 2010; Re Moshsin Ali [2018] HKCA 549.  Having considered the Applicant’s arguments, we find no merits in the Applicant’s appeal.

Conclusion  

27.  In the above circumstances, we dismiss both appeals.  As the putative respondents did not attend the hearing, we make no order as to costs.