TSUI KIN KWOK JOHNNIE v. COMMISSIONER OF POLICE

CACV 38/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 38 OF 2010

(ON APPEAL FROM HCAL NO. 143 OF 2009)

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BETWEEN

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REASONS FOR DECISION

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Hon Tang VP:

1.  The Plaintiff was a policeman. As a result of disciplinary proceedings, he was compulsorily retired with deferred pension with effect from 15 October 1998.

2.  At the time, no professional legal representation was permitted in police disciplinary proceedings.

3.  On 26 March 2009, the judgment of the Court of Final Appeal in Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 was handed down.  In Lam Siu Po, the Court of Final Appeal decided that the blanket restriction on professional legal representation in police disciplinary proceedings is incompatible with Article 10 of the Hong Kong Bill of Rights Ordinance (Cap 383) ("BORO") and is null and void.

4.  Following Lam Siu Po, on 11 May 2009, the Plaintiff applied in HCAL 50/2009 for leave to apply for judicial review.  In that application, he asked for an extension of time to apply for leave to ask for an order of certiorari to quash decision of the disciplinary proceedings.  Alternatively, an order of mandamus ordering the Commissioner of Police to review those orders or decisions.  An extension of time was required because of Order 53 rule 4.

5.  On 29 December 2009, the Plaintiff commenced the present proceedings, HCAL 143/2009, by originating summons for, inter alia, a declaration that the disciplinary proceedings infringed the Plaintiff's right to a fair hearing guaranteed under Article 10 and was therefore unlawful, the resulting convictions and sentences to be quashed, and a declaration that the requirement for leave to apply for judicial review and/or the prescribed limitation period of 3 months is/are inconsistent with BORO etc.

6.  The originating summons was struck out by A Cheung J (as he then was) on 22 January 2010 as an abuse of process.  His reasons for decisions were handed down on 29 January 2010.

7.  On 26 February 2010, A Cheung J refused an extension of time in HCAL 50/2009.  In so doing, he followed the decision of the Court of Final Appeal in HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614.  He also rejected the argument that Order 53 rule 4 was illegal because it contravened section 6(1) of BORO.

8.  The Plaintiff appealed to us and his appeal was dismissed by us on 2 March 2011.  The reasons for our judgment was handed down on 28 March 2011.

9.  Now the Plaintiff seeks leave to appeal to the Court of Final Appeal on the basis that the appeal involves questions which, by reasons of their great general or public importance or otherwise, ought to be submitted to the Court of Final Appeal for decision.

10.  A number of suggested questions have been set out in the appellants' Proposed Amended Notice of Motion.  They revolve around section 6 of BORO which reads:

"(1) A court or tribunal-

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights."

11.  Mr Butt's submission is premised on section 6 being a provision that creates a cause of action.  Mr Butt compared section 6 with section 7 of the Human Rights Act 1998 which provides, where relevant,

"(1)   A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may—

(a)   bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b)   rely on the Convention right or rights concerned in any legal proceedings, …

……

(5)   Proceedings under subsection (1)(a) must be brought before the end of –

(a)   the period of one year beginning with the date on which the act complained of took place; or

(b)   such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question."

12.  Mr Butt referred to R(Wilkinson) v Broadmoor Hospital Authority (CA) [2002] 1 WLR 419, a decision of the English Court of Appeal where Hale LJ (as she then was) said:

"'61. … By CPR r 7.11, the 'appropriate court or tribunal' means, other than where a judicial act is concerned, 'any court'. The usual time limit is one year unless there is a stricter time limit for the procedure in question: see section 7(5). There is no requirement for leave or other special protection given to the public authority concerned. It follows that proceedings under section 7(1) are not confined to judicial review, and indeed it would be most surprising if they were. …

62. In my view, therefore, it cannot and should not matter whether proceedings in respect of forcible treatment of detained patients are brought by way of an ordinary action in tort, an action under section 7(1) of the 1998 Act, or judicial review. …"  (emphasis added)

13.  Mr Butt submitted that since section 6 of BORO contains no time limit, an action could be brought at any time at all.

14.  I prefer to express no concluded view on the effect of section 6 BORO, because it is unnecessary to do so and because we have not heard full submissions on the point.  For the moment, I need only say that in any event, section 6 BORO cannot assist the Plaintiff.  Even if the Plaintiff has an independent cause of action under section 6 BORO, the time to bring such an action has long lapsed. 

15.  Mr Butt referred to section 32 of the Limitation Ordinance which enables a court to override time limit for negligence actions not involving personal injuries until the

"(1) … expiration of 15 years from the date (or, if more than one, from the last of the dates) on which there occurred any act or omission-

(a) which is alleged to constitute negligence; and

(b) to which the damage in respect of which damages are claimed is alleged to be attributable (in whole or in part)."

16.  But there has been no application for leave to extend the limitation period, which in any event would have failed.

17.  For the above reasons, I have dismissed the application for leave to appeal to the Court of Final Appeal, with costs to be taxed unless agreed.

Hon Stock VP:

18.  I agreed that leave should be refused but for the reason that in my opinion the contentions underlying the questions posed are so fundamentally flawed as to be unarguable.

19.  Mr Butt's submissions in support of this application for leave misunderstand, in my respectful judgment, the nature of the Bill of Rights Ordinance and the purpose and effect of section 6.

20.  It is an Ordinance (not a constitution) which creates obligations upon the Government and all public authorities and upon any person acting on behalf of the Government or a public authority (section 7).

21.  Persons affected by a breach or breaches of any one or more of those obligations have the right to pray in aid such a breach in a number of circumstances, just as they might in relation to breaches by public authorities of other statutory obligations.  So, to use the examples deployed by Mr Dykes in "Content of the Hong Kong Bill of Rights Ordinance" in "The Hong Kong Bill of Rights: A Comparative Approach" (1993) at p 45, an individual might bring an action claiming relief for a violation or threatened violation of one of the statutory protections such as an action for damages for wrongful arrest and malicious prosecution; or where a violation or threatened violation is relevant in the course of litigation but is not the subject matter of the action - for example, where a defendant in a criminal trial seeks to exclude evidence on the basis that there has been a violation.

22.  In some jurisdictions the subject matter with which this Ordinance deals, namely, fundamental rights, is reserved for certain courts.  What section 6 does is to make clear that a claimant or defendant may take a Bill of Rights points in any court, so long, however, as it is taken "in proceedings within [that court's] jurisdiction." and so long as the remedy, relief, or orders which a court makes are those which it already "has power to grant or make in those proceedings".  The section does not create a new jurisdictional regime or alter procedural principles.  In particular, it does not alter the rule which requires those who launch proceedings in order to assert a public law wrong to proceed by way of judicial review.

23.  In this case, the plaintiff brought proceedings for judicial review but they failed and he now seeks to bring proceedings based on the same complaint, but by way of originating summons saying that because of section 6 the avenues available to him are at large.  In my judgment that argument is not tenable.  

Hon Yeung JA:

24.  I agree with the decision of Hon Tang VP and for the reasons that he gives, I also have dismissed the application with costs.