LEE CHICK CHOI v. HE DIRECTOR OF LEGAL AID

CACV 276/2018

[2019] HKCA 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 276 OF 2018

(ON APPEAL FROM HCAL 417 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a judgment (“the Judgment”) dated 8 March 2019 ([2019] HKCA 275), this court (Hon Lam VP, Poon and Au JJA) struck out and dismissed the applicant’s appeal against the decision (“the Judge’s Decision”) of Chow J (“the Judge”) dated 27 June 2018.  The Judge refused the applicant leave to apply for judicial review, and dismissed his application for extension of time to apply for judicial review.

2.  The intended judicial review was against the decision made by the Director of Legal Aid in refusing the applicant’s legal aid application in relation to his claim commenced under DCCJ 1988/2017 against his former employer for alleged breaches of the Personal Data (Privacy) Ordinance (Cap 486) (“the PDPO”).

3.  We struck out and dismissed the applicant’s appeal on the basis that (a) the applicant failed to apply for leave to appeal against the Judge’s Decision, and (b) in any event, leave to appeal should not be granted.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 11 March 2019, the applicant applies for leave to appeal against the Judgment to the Court of Final Appeal under section 22(1) of the Court of Final Appeal Ordinance (Cap 484) (“the CFAO”).  Pursuant to the directions of the Registrar of Civil Appeal dated 14 March 2019, this application is to be dealt with on paper, and the applicant and the putative respondent have respectively filed their written submissions.

5.  Section 22(1)(b) of the CFAO provides that:

“An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court [of Final Appeal] for decision.”

6.  In the Notice of Motion, the applicant states that it is for the Court of Final Appeal to decide whether his claim under section 66 of the PDPO in DCCJ 1988/2017 should be commenced by him in the Small Claims Tribunal or District Court.  Based on this, he has proposed three questions that he says are of great general or public importance:

“(1) Has Small Claims Tribunal the jurisdiction to hear my claim of DCCJ 1988/2017 under section 66 of PDPO based on the authority of CACV 180/2017 in EXHIBIT4?

(2) Can the public/other litigants (other than my wife or me in DCCJ 5723/2016 and DCCJ 1988/2017) file and serve their claims unless than HK$75,000.00 under Section 66 of PDPO in the Small Claims Tribunal?

(3) Can Section 10 of the Legal Aid Ordinance (Cap.91) override Section 66 of PDPO? Please note that the letter concerned subject to my application for leave to a Judicial Review in HCAL 417 of 2018 was issued to me on 18^th September 2017 in EXHIBIT2 while the Reasons for Judgement in CACV 180/2017 was delivered on 6^th March 2018 in EXHIBIT4.”

7.  In our view, this application is entirely misconceived.

8.  Section 14AB of the High Court Ordinance (Cap 4) (“the HCO”) provides that no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.

9.  As mentioned above, given that the Judgment is one relating to this court’s refusal to grant leave to the applicant to appeal the Judge’s Decision to it (see paragraph 13 of the Judgment), pursuant to section 14AB of the HCO, it is final in nature where no further appeal shall lie from it.

10.  In the premises, there is no question of granting leave to the applicant to appeal the Judgment to the Court of Final Appeal and this application is an abuse of process.  We therefore dismiss the Notice of Motion, with costs to the Director, to be taxed on an indemnity basis.

11.  For the purpose of a summary assessment of the Director’s costs, we direct that the Director shall file and serve a statement of costs within seven days of this decision, and the applicant shall file and serve his written comments on the statement of costs (of not more than one page), if any, within five days thereafter.  If the applicant’s written comments are more than one page, the court would disregard the comments.