HCAL 119 / 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 119 OF 2010

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J U D G M E N T

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A. Introduction

1.  This is an application for leave to apply for judicial review.

2.  The Applicant is a resident of Choi Hung Estate, and he seeks leave to apply for judicial review against the Director of Housing (“the Director”).   The decisions said to form the subject matter of the application are stated in the Form 86 as “continuing decisions failing to perform the duty of properly acting on complaints”.

3.  The relief sought is “[a]n Order of Certiorari to quash the mentioned decisions, an Order of Mandamus to require the respondents [sic] to investigate my cases thoroughly and damages”.

4.  In the affirmation filed in support of the leave application, the Applicant’s main complaint is the Director’s bad faith and improper motive of “punishing” him by assisting security guards to retaliate against him, and the Director’s failure to respond to his complaints over the past 5 years regarding failure of the Director in the management of the security services properly.    In the oral submissions today, the Applicant further says these “retaliations” are the results of his making legitimate complaints against the security guards at the public housing estate some 10 years ago.

B. This Application

5.  In support of his allegations of the Director’s failure in his duties, the Applicant cites examples of the Director’s failure to respond to his recent emails complaining of certain security guards’ alleged misconducts against him.  These misconducts include not greeting him and saying something abusive at him.  In these emails, he asked the Director to “grab the cctv recording” of the complaint conducts of the security guards and to arrange a joint viewing of these recordings with him.

6.  It is the Applicant’s case that the Director in dereliction of his duties under s. 4(2)(e) of the Housing Ordinance (Cap 283)^[1] has not substantively responded to these demands or complaints.

7.  The Applicant’s said complaints and grounds in support of the application for leave to apply for judicial review have to be viewed against the background that this is his second similar application made within the last 3 months. 

8.  In August 2010, he took out an application for leave to apply for judicial review under HCAL 84/2010 against the Director of Housing, the Ombudsman and the Commissioner of Police. 

9.  In his Decision in HCAL 84/2010^[2], Fok J summarized the Applicant’s then grounds of application as follows:

“4. The applicant seeks leave to apply for judicial review against (1) the Director of Housing, (2) the Ombudsman, and (3) the Commissioner of Police.

5. The decisions which the applicant seeks to challenge are, in the case of the Director of Housing, identified in the Amended Form 86A as ‘[c]ontinuing decisions of failing to act’, in the case of the Ombudsman, a decision dated 28 October 2009 and ‘failure to act’, and in the case of the Commissioner of Police, ‘[c]ontinuing decisions of failing to act’.

6. The relief which the applicant seeks in the notice of application is ‘[a]n Order of Certiorari to quash the mentioned decisions, an Order of Mandamus to require all respondents to investigate my cases thoroughly and damages’.

7. In his oral submissions, the applicant explained that the origin of his various complaints was the fact that when he lived in Tin Shui Wai he had argued with security guards there who then subjected him to retaliation which has lasted for more than 10 years. The applicant said that, despite complaining to the police and the Ombudsman about this, nothing was done.

8. In respect of the Director of Housing, the grounds on which relief is sought are identified in the Amended Form 86A Notice as ‘[b]ad faith/improper motive, bias [and] failure to perform duties in respect of my numerous complaints against security guards’.

9. The evidence filed by the applicant refers to complaints made by him over a period of five years. The applicant exhibited, as ‘CKC-1’ to his affirmation in support of the original Form 86A Notice, a CD containing complaint e-mails written by him. Those e-mails are dated between 29 June 2005 and 24 November 2005 and are all from the applicant to various recipients in the Housing Authority. In substance, the e-mails disclose complaints about various security guards, some named and some un-named. The nature of the complaints differ but include, for example, talking on the telephone whilst on duty, smoking whilst on duty, showing poor manners to the applicant and using abusive language towards the applicant. From the last of the e-mails exhibited, dated 24 November 2005, it appears that the specific crux of the applicant’s complaint was that the subcontracted security services should be terminated.

10. In his second affirmation, the applicant exhibits letters dated 5 and 29 July 2010 and written by him to the Housing Authority requesting various items of information in relation to an incident involving alleged spitting by a security guard at the applicant’s estate and the subsequent chasing of the applicant by the security guard.  These were answered by a letter dated 13 August 2010 from the Director of Housing following a telephone call by a Mr Tam of the Housing Authority to the applicant to clarify his requests.  This letter enclosed a reply dated 20 November 2003 which had earlier replied to the applicant’s complaint.  Notwithstanding this reply, the applicant wrote a further letter to the Housing Authority dated 23 August 2010 requesting information about the incident.  Further letters concerning requests for additional information and complaints against Mr Tam are also exhibited and referred to in the applicant’s second affirmation.”

10.  One can immediately see that the nature of the complaints, the decisions sought to be challenged and the relief sought in HCAL 84/2010 as against the Director of Housing are effectively the same as the ones now sought under the present application.

11.  Fok J dismissed the Applicant’s application under HCAL 84/2010.  Insofar as the reasons for dismissing the application concerning the Director of Housing, the learned judge said at para 11 to 13 of his Decision as follows:

“11. Even assuming that the decisions of the Director of Housing not to act on the complaints contained in the various e-mails from the applicant constitute reviewable decisions, there is nothing in the materials before me to suggest that there is a reasonably arguable case that the Director of Housing has acted unlawfully or in dereliction of duty or irrationally in not acting on the complaints. Whether or not the Director of Housing decides to act on a complaint, and how he acts on it, is a matter lying within the Director’s discretion and there is nothing in the papers before to support a reasonably arguable case that his discretion was exercised unlawfully or irrationally.

12. I would add that I am unable to see any basis in the evidence for the applicant’s allegations of bad faith, improper motive or bias on the part of the Director of Housing. The applicant’s complaints boil down to his dissatisfaction that the Director has not done what the applicant would like him to have done. But that does not mean that the Director has acted in bad faith or been motivated by an improper motive or bias. Where an applicant is alleging bad faith, improper motive or bias, he should, in my view, condescend to full particulars in the application, so that the court can form a view as to whether the allegation is reasonably arguable. Here, the applicant has done no more than make the allegations as bare assertions based on his not obtaining what he would have wished. As such, the allegations of bad faith, improper motive or bias amount to mere speculation and are therefore not a suitable subject for judicial review. It is not right that allegations of this nature be made on a speculative basis. The mere fact that the applicant is acting in person is no excuse for a failure to adhere to this fundamental and basic rule, which is no more than a rule of fairness.

13. I also do not consider that there is any reasonably arguable case for mandamus to require the Director of Housing to investigate the matter, whether under section 4 of the Housing Ordinance (Cap. 283) to which the applicant referred in his oral submissions or otherwise. The correspondence exhibited, namely “CKC2-8” and “CKC2-11” which are letters from the Director of Housing to the applicant dated 26 August 2010 and 7 September 2010, show on their face that the Director of Housing has investigated the applicant’s complaints, including watching the CCTV footage of the alleged incident and reminding frontline staff including security guards to be polite and alert in the execution of their duties. There is no proper basis put forward in the papers before me to suggest that this has not happened.”

12.  In my view, these reasons apply with equal force in the present application.  There is nothing before me to demonstrate a reasonably arguable case that the Director has acted unlawfully or in breach of his duty or irrationally or unreasonably in the Wednesbury sense in not acting on these so-called recent complaints.

13.  I therefore have no hesitation in also dismissing this application for leave.

C. Consideration for making a RPO Order

14.  As I mentioned above, this is the second unmeritorious application by the Applicant for leave for apply for judicial review on essentially the same subject matter made within a period of 3 months.  I am of the view there is a prima facie that the Court should consider making a Restrictive Proceedings Order (“RPO”) against the Applicant.

15.  I therefore direct that, if he is opposed to the making of a RPO against him, the Applicant shall within 7 days from today file an affirmation to explain why the Court should not do so.  I further direct that a hearing shall be fixed on 15 December at 9:30 am before me to determine whether a RPO should be made.