梁淑微 v. 第一及第二答辯人之代表律政司

HCAL 127/2024

[2024] HKCFI 1916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 127 OF 2024

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REASONS FOR RULING

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A.  Introduction

1.  By my Decision dated 3 April 2024 [2024] HKCFI 601, I dismissed the Applicant’s application for leave to apply for judicial review, following a hearing on 22 March 2024.  The Decision was handed down with a version provided to the Applicant in Chinese.

2.  The Applicant’s application related to her claim made in District Court proceedings DCEO 5/2022, and sought to challenge two decisions made in those proceedings by HHJ Ko, the Chief District Judge (“CDJ”).  I refused the Applicant’s application for leave to apply for judicial review on the basis that the application was fundamentally misconceived, essentially because:

(1)  this Court does not sit as an appellate court from decisions made in the District Court, and does not have supervisory judicial review jurisdiction over decisions made by judges of the District Court; and

(2)  the Applicant had an alternative remedy in seeking leave to appeal to the Court of Appeal, which alternative she had indeed apparently pursued in relation to at least one of the underlying decisions, and renewed in an application made in CAMP 143/2023.

3.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (“RHC”), the Applicant had 14 days to appeal from my Decision to the Court of Appeal, had she wished to do so.  That period expired on 17 April 2024.

4.  By summons dated 16 May 2024 (“Summons”), the Applicant sought an extension of time to appeal from my Decision.

5.  I originally sought to deal with that application on paper by my response given in a letter/ruling dated 4 June 2024. I indicated that – on the materials put forward by the Applicant in support of her application – I saw no proper basis for exercising the discretion to extend time, and that the application should be dismissed.  I also pointed out that the Applicant might seek an extension of time from the Court of Appeal, perhaps with the lodging of an appeal if one were pursued, and that was a matter on which she could seek advice from the lawyer from whom she said she was seeking assistance (see below).  Indeed, I had in mind that an early ruling by me would assist the Applicant in bringing the matter to the Court of Appeal sooner rather than later.

6.  However, the Applicant wrote to the Court on 12 June 2024 stating that dismissing the Summons without a hearing was inappropriate, and that at an oral hearing she would identify the grounds or good reasons for her application.  In essence, she insisted on an oral hearing.  Although an order had been drawn up, and although the good reasons for her application ought to have been apparent from the papers filed for it, I informed the Applicant that I would suspend my previous decision and an oral hearing would take place on 23 July 2024.

7.  At the hearing, the Applicant appeared in person, with the benefit of an interpreter.  Having considered the submissions made, I dismissed the application with no order as to costs, for reasons to be handed down later, so as to permit those reasons to be interpreted.

8.  These are my Reasons for Ruling.

B.  The Application

9.  The Summons identifies the background of the DCEO proceedings, and the making of the application for leave to apply for judicial review to challenge what the Applicant describes as “the illegal decision of the District Court”.  It then states that the Applicant has read the translation of my reasoned Decision and order dated 3 April 2024. Then the Summons continues (in English translation):

Obviously miscomprehension and serious inconsistencies with the facts exist in the reasons for the decision.  Such an erroneous and unreasonable decision is certainly caused by the interpreter’s mistakes and miscomprehension at the hearing conducted in English.  It is also obvious that directions were not given before the hearing, which resulted in the unfair and slipshod handling of the application for leave to apply for judicial review.  Thus it is necessary to appeal against (the refusal of leave to)  apply for judicial review!  Otherwise, the relevant (wrong)  legal reasoning, unfairness and discrimination will go unchecked.  The application for leave to appeal is out of time because of the errors in the booklet.  In addition, I am seeking assistance from a lawyer to lodge an appeal of this case.  Therefore I need to apply for an extension of time to do so.

10.  The Applicant’s affirmation filed in support of the Summons, also dated 16 May 2024 states (in English translation):

I (Leung Suk-mei), the applicant, apply for leave to apply for judicial review by way of filing a Form 86 with the High Court on 11 January 2024. The application is one that is against the decision which is illegal, unlawful, non-compliant to the legal procedures and to allow the application of the DOJ, representative of the 1^st respondent (the Hong Kong Police Force)  and the 2^nd respondent (the Legal Aid Department), to the District Court for striking out my equal opportunity case (DCEO 5/2022)  (involving three defendants).  The present appeal also involves the written decision of the Court of Appeal (CAMP 43/2023), which is biased, unfair and has disregarded the relevant documentary evidence and facts filed so that the protection of legal rights and human rights are not achieved.  The translation of Hon Coleman J’s order dated 3 April 2024, which has refused leave (for judicial review)  and given the reasons (for the decision), is clearly wrong and an improper understanding.  It is an unfair and insufficient decision!  I hereby apply to the Court of Appeal for an extension of time for the appeal.

11.  Reading the Summons and affirmation together, the points apparently advanced by the Applicant include that:

(1)  The Decision was the result of miscommunication and inconsistency with the facts.

(2)  The Decision is “clearly wrong” and “an improper understanding”, and “unfair and insufficient”.

(3)  No directions had been given before the hearing of the application leading to the Decision.

(4)  The application for an extension of time arises because of “errors in the booklet”.

(5)  The Applicant is also seeking legal assistance to lodge an appeal.

(6)  The intended appeal also involves the written decision of the Court of Appeal in CAMP 143/2023, which was “biased, unfair and has disregarded the relevant documentary evidence and facts filed”.

12.  In her oral submissions at the hearing, the Applicant also stated (in my summary of her points):

(1)  The reason why she was out of time for appealing is that something happened at her home related to the underlying case, in that thieves had altered the content of her booklet, so that she misread the details about the time for appealing.  She thought she had 28 days, not 14.

(2)  The section of the Decision dealing with the merits of the application is wrong.  In her application, she had written down that she was appealing decisions from the previous hearings, and would just like a decision as to whether the decisions were made lawfully/legally or not in accordance with the relevant legislation.

(3)  As to §10 of the Decision, she did not understand it. (At the hearing, I explained both §§9 and 10.)

(4)  As to §4 of the Decision, it was in error because she had not said the word “odd”, and what she had written down was dealing about a decision in the High Court not the District Court.  She had lodged an appeal, but the Court of Appeal had failed to deal with the issues.

(5)  As to §§11 and 13 of the Decision, the law was stated incorrectly, and she had not been given an opportunity to explain why the relevant provisions were applicable.

(6)  As to the factual matter stated at the end of §13 – namely that, whatever the legal requirement, her claim had in fact been dealt with by the CDJ – what she meant by saying that the case was not dealt with by the CDJ was that it was dealt with by a person impersonating the CDJ.

(7)  She thought she would be given sufficient time after filing her judicial review application to offer her explanations, but she was not given sufficient time and it was wrong “curtly” to make an unfair decision refusing the application for leave to apply for judicial review.

(8)  She should be granted an extension of time so that she can lodge an appeal.  She is not a professional/lawyer and will have to seek assistance from a professional to help her in the appeal.

13.  I took all these points into account, and gave them the weight that I think each of them deserved.

C.  Whether Any Extension Should be Granted

14.  It is trite that it is entirely in the discretion of the Court to grant or refuse an extension of time, and that the factors normally taken into account in deciding whether or not to grant an extension of time include: (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the proposed appeal; and (4) the degree prejudice to the potential respondent if the application is granted.  Of course, the Court will also consider all the circumstances and decide whether the overall justice of the case requires the exercise of the discretion to extend time.

15.  In this case, the delay before the Summons was issued was a period of approximately one month, which is a delay of more than twice the original period permitted under the rules for lodging an appeal. Indeed, even if the Applicant had thought the appeal period was 28 days, she did not make any application within that 28 days, and took a further 14 days thereafter before issuing the current Summons.  Even now, more than two months later, there does not seem to be any drafted notice of appeal.  Nor did the Applicant specify or try to explain the period of the extension of time which she is seeking.  The previous and continuing delay cannot be described as insignificant.

16.  The reasons offered by the Applicant for the delay are far from compelling.  First, the reason relating to the suggested “errors in the booklet” was not properly explained, and in any event the time within which to have appealed is clear on the face of the relevant rules in Order 53 (the Order in the RHC relating to judicial review proceedings). Secondly, the desire to seek legal advice and assistance is not a strong point to explain the delay, and despite the passage of another two months there is no sign of any professionally drafted appeal documents.  In fact, from her submissions made at the hearing, it seems that the Applicant has still not yet approached any professional/lawyer to assist her with her proposed appeal.

17.  But, the weightiest factor seems to me to be that there are absolutely no merits in any intended appeal:

(1)  First, there is no basis for suggesting that there was any miscommunication or failure in interpretation at the hearing leading to the Decision.

(2)  Secondly, mere invocations of phrases like “clearly wrong”, “improper understanding” and “unfair and insufficient” do not properly identify any grounds of appeal which might be seen to have any realistic prospect of success.

(3)  Thirdly, in so far as the Applicant sought to expand on those phrases in her oral submissions, she still failed to address the fundamental flaw in the application for leave to apply for judicial review being wholly misconceived (see above and below).

(4)  Fourthly, the Applicant also still failed to identify – by taking me through the relevant legislative provisions or the practice direction – why the Decision fell into legal error about those provisions (even leaving aside the point that as a matter of fact the District Court decisions were made by the CDJ in any event).

(5)  Fifthly, there was no need for there to have been any directions given before the hearing, and the burden was on the Applicant to put forward in her application such materials which she would say should ground the grant of leave to apply for judicial review.

(6)  Sixthly, the Applicant requested and was heard at an oral hearing, when she was afforded more than reasonable time to have given any necessary further explanations or submissions in support of her application.  As was already pointed out in §12 of the Decision, it is not the role of the Court to try to identify for itself what particular provisions are said to have been incorrectly followed or not followed, nor is it the role of the Court to answer general questions or to offer legal advice.

(7)  Lastly – and most importantly – the Decision was made to dismiss the application for leave to apply for judicial review because it was seeking to challenge decisions made by the CDJ in District Court proceedings, and that was fundamentally misconceived for the reasons explained in the Decision.

18.  In that regard, at §4 of my Decision: (1) I noted that the Applicant had already in CAMP 143/2023 sought leave to appeal from the decision(s)  made by HHJ Ko (the available alternative remedy); and (2) I referred to the apparent chronological confusion or ‘oddity’ in that the Applicant seemed to be seeking to challenge a decision made in December 2023 by an application dated 3 April 2023.  (Having checked the recording of the hearing on 22 March 2024, the word used by the Applicant, as interpreted, was “strange”.)  However, I have since discovered that it was the Court of Appeal’s decision in CAMP 143/2023 which was dated 18 December 2023, which may be the source of that confusion.

19.  In any event, I note from the Court of Appeal’s decision dated 18 December 2023, made on the application for leave to appeal from the decision of the CDJ, that the Court of Appeal’s decision was made on the papers and it held that the application had no merit, and it refused to allow any oral hearing.  I also note that the Applicant’s suggestion that the decisions made in the District Court proceedings were made by someone impersonating the CDJ was advanced by the Applicant as an argument to the Court of Appeal, and was rejected.

20.  Obviously, this Court does not sit as an appellate court from decisions of the Court of Appeal.  Nor does this Court judicially review decisions of the Court of Appeal.  Nor could the Court of Appeal in any appeal from my Decision review or overturn its own decision in the other appeal application CAMP 143/2023.  Therefore, contrary to her suggestion, the proposed appeal for which the Applicant seeks extra time could not possibly involve the written decision of the Court of Appeal in CAMP 143/2023.

21.  There is obviously no point in granting any extension of time for the launching of a proposed appeal which is of no merit.

22.  In those circumstances, I do not think I need to consider any potential prejudice to the respondent to any appeal, save to acknowledge the clear potential prejudice arising from having to respond to what would in my view likely be vexatious appellate proceedings.

D.  Result

23.  Therefore, I maintained the view previously expressed by me.  I also saw no prejudice from my having originally dealt with the matter on paper, though I also afforded the Applicant the opportunity to make oral submissions.  In short, I saw and I continued to see no proper basis upon which I would exercise my discretion to give an extension of time for the Applicant to appeal from the Decision.

24.  In the circumstances, and for the reasons identified above, the application was dismissed.

25.  No other party attended the hearing, and I made no order as to costs.