莊裕安 v. 律政司司長林定國

CACV 366/2023, [2024] HKCA 798

On appeal from [2023] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2023

(ON APPEAL FROM HCAL NO 1243 OF 2023)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

1.  On appeal against a decision by Anthony Chan J (“the Judge”) dismissing an application for leave for judicial review,[1] the Registrar of Civil Appeals (“the Registrar”) ordered the applicant’s notice of appeal to be expunged from the Court’s file (“the Expunction Order”), on the ground that it purported to join another party to the proceedings without leave. By a judgment handed down on 19 April 2024 (“the Judgment”), we dismissed the applicant’s appeal against the Expunction Order. By a Notice of Motion dated 30 April 2024, the applicant now applies for leave to appeal to the Court of Final Appeal (“the CFA”).

2.  Having considered the parties’ written submissions, we take the view that this matter can be disposed of on paper without an oral hearing. The Expunction Order was given and drawn up in English. The Registrar’s reasons and our Judgment were also given in English. It was noted at [6] of the Judgment that the applicant is conversant in English. We will accordingly dispose of this matter in English.

3.  The Secretary for Justice was the only putative respondent on the applicant’s Form 86 below, which sought leave to apply for judicial review against the Secretary’s decision to prosecute Mr. Lai Chee Ying under the National Security Law. In appealing against the Judge’s dismissal of his leave application, the applicant purported to join Mr Lai as a 2^nd respondent in his notice of appeal. This resulted in the Expunction Order, which was upheld in our Judgment.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance,[2] an appeal shall lie to the CFA at the discretion of this Court or the CFA if 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 CFA for decision.

5.  The grounds relied on by the applicant in his Notice of Motion and written submission can be summarised as follows:

(1)  It was his right as a litigant, before any substantive hearing, to decide who to sue against, including joining additional respondents to the proceedings;

(2)  In another case, HCPI 471/2019, he as the plaintiff was able to make a change of parties;

(3)  He had filed below an amended Form 86, adding Mr Lai as a 2^nd putative respondent.

6.  These grounds were a repetition of the applicant’s previous arguments, which we have rejected as having no merits for reasons given in the Judgment at [7] and [8]. The applicant further stated that it is open to him to withdraw the present case and file a new case with Mr Lai as a putative respondent. However, what he may or may not choose to do in response to the Expunction Order has no bearing on its correctness. None of the points made by the applicant now amount to a question of general or public importance for the CFA to determine. There is also no basis for granting leave under the “or otherwise” limb of section 22(1)(b).

7.  In dismissing the application for leave for judicial review, the Judge found that the applicant’s real motive was to launch a collateral attack on judgments and orders made against him in other proceedings, and to ventilate his complaints against members of the judiciary who had dealt with his cases.[3]  The applicant was found to have abused the court’s process and was unremorseful.[4]  The applicant has continued such abuse in his Notice of Motion and written submission now before us, as well as in other correspondence,[5] with allegations such as that this Court has delayed the disposal of the present case with a view to prevent the prosecution against Mr Lai from being dismissed. These allegations are completely without substance.

8.  Further, by letter dated 7 May 2024, the applicant stated that he is awaiting filing directions in relation to this appeal against the Judge’s dismissal of his application for leave for judicial review. This is misconceived as after the Expunction Order which expunged the notice of appeal, no appeal is now pending before the Court.

9.  In conclusion, we refuse leave to appeal to the CFA and dismiss the applicant’s Notice of Motion. Since the Secretary filed as directed a written submission in reply to the applicant’s leave application, we order the applicant to pay the Secretary’s costs, summarily assessed at $20,577.67, as set out in a statement of costs filed together with the Secretary’s written submission.