RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR AND OTHERS

HCAL 104/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 104 OF 2008

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AND

HCAL 108/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 108 OF 2008

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BETWEEN

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AND

HCAL 123/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 123 OF 2008

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BETWEEN

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(Heard Together)

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J U D G M E N T

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Background

1.  These three applications for leave to apply for judicial review are brought by Mr Ma Pui Tung and the “Right To Inherent Dignity Movement Association”, of which Mr Ma is said to be the “promoter, founder and chairman”.

2.  Mr Ma used to practise as a solicitor under the name of Messrs Josip Ma & Co.  He once represented a Mr Koo in a piece of civil litigation (HCA 7305/1993).

3.  The action was compromised on the first day of trial.  But, unfortunately, complication arose out of the settlement and that, eventually, gave rise to the making of complaints by Mr Koo, Mr Ma’s client, to the Law Society in November 1996.

4.  That led to the commencement of disciplinary proceedings against Mr Ma.  Mr Ma sought unsuccessfully to challenge the proceedings on the ground that they were held in camera (HCAL 421/2001) but withdrew his application for judicial review after a similar challenge in another case was rejected by the court.

5.  The Solicitors Disciplinary Tribunal seized of the proceedings eventually found Mr Ma guilty of a number of disciplinary offences, which included failure to provide his client with a written record of fees and failure to deliver a bill of costs to Mr Koo within a reasonable time of the conclusion of the matter, failure to keep his client properly informed of the true nature of a notice to act in person which Mr Koo had been asked by Mr Ma to sign, and failure to arrange for the attendance of a responsible representative throughout the civil proceedings but instead instructing only a clerk of the firm to attend.

6.  The charges for which guilt had been established resulted in fines totalling $170,000.  But significantly, the Tribunal ordered Mr Ma to pay the costs of the entire proceedings on a full indemnity basis.

7.  Mr Ma lodged two appeals from the Tribunal’s findings on the charges and the punishments imposed (CACV 221/2003 and CACV 254/2003).

8.  The appeals were heard together on 28 and 29 October 2003.  On 11 November 2003, the Court of Appeal handed down its judgment on the appeals.  In short, the Court of Appeal dismissed the appeals, save to the extent that the costs order made by the Tribunal was quashed and the issue of costs was referred back to the Tribunal for reconsideration.

9.  Mr Ma’s application for leave to appeal to the Court of Final Appeal out of time was only heard by the Court of Appeal on 24 July 2008, more than four years after the judgment was given.  The long delay arose out of Mr Ma’s allegations that the principal witnesses who gave evidence against him before the Disciplinary Tribunal (namely, Mr Koo and Mr Ma’s former clerk) had given false evidence before the Tribunal and were thus guilty of perjury.  He pressed the police to carry out criminal investigation and the Secretary for Justice to press charges against the two gentlemen.  Mr Ma even went so far as to apply for leave to launch judicial review proceedings to challenge the Secretary for Justice’s refusal to prosecute Mr Koo and the clerk for perjury.  All these efforts, including the application for leave to apply for judicial review and the subsequent appeal (namely, HCAL 15/2008 and CACV 64/2008), were to no avail.

10.  Returning to Mr Ma’s application for leave to appeal to the Court of Appeal out of time, which was heard eventually by the Court of Appeal on 24 July 2008, the application was dismissed by the Court in a judgment handed down on 26 August 2008.

11.  Apart from these efforts by Mr Ma to overturn the convictions and punishments made by the Tribunal, Mr Ma also attempted to challenge the disciplinary proceedings conducted by the Tribunal against him on various grounds.  This he did, by taking out an application for leave to apply for judicial review on 16 December 2004 (HCAL 157/2004), more than 1 year after his appeals against the Tribunal’s findings and punishments to the Court of Appeal failed.

12.  Pausing here, it is quite plain that that application was highly problematic.  First, it was very late.  Mr Koo’s complaints were first made in November 1996.  The proceedings before the Tribunal took place between 17 January 2002 and 1 March 2003.  The Tribunal made its findings on the charges on 16 July 2003 and imposed the punishments on 7 August 2003.  Order 53 rule 4(1) imposes a duty to make an application for leave to apply for judicial review promptly and in any event within three months from the date when grounds for the application first arose.  From whichever perspective, the application for leave was unduly late.

13.  Secondly, arguably some of the grounds he relied on in HCAL 157/2004 could and should have been mounted before the Court of Appeal.  They were not.  Moreover, there was no express reservation of Mr Ma’s position on these grounds when he decided to appeal from the orders made by the Tribunal.  Nor did he apply for leave to apply for judicial review after the orders were made by the Tribunal, instead of launching the appeals to the Court of Appeal.

14.  However, there was no final determination on the leave application in HCAL 157/2004, for the simple reason that by letter dated 18 February 2005, Mr Ma asked the Court to adjourn his application for leave sine die with liberty to restore, on the ground that he hoped that he could obtain legal aid for his application for leave.  By letter dated 21 February 2005, Chu J through her clerk informed Mr Ma that his application for adjournment had been granted.

15.  On 27 June 2008, Mr Ma filed a “supplemental grounds on which relief is sought” in HCAL 157/2004, by which further grounds were relied on, including grounds based on the People’s Republic of China’s Constitution as well as the International Covenant on Civil and Political Rights (ICCPR).  But Mr Ma did not restore the hearing of his application for leave in HCAL 157/2004.  Instead, he made a new application for leave to apply for judicial review on 16 September 2008 under HCAL 104/2008.  That application, it should be noted, was made after the Court of Appeal refused his application for leave to appeal to the Court of Final Appeal out of time in CACV 221/2003 on 26 August 2008.

Present applications for leave

16.  In HCAL 104/2008, Mr Ma and his co-applicant (the “Right To Inherent Dignity Movement Association”) seek to challenge the constitutionality or lawfulness of the solicitors disciplinary scheme laid down in the Legal Practitioners Ordinance (Cap 159).  In particular, they challenge the constitutionality of section 9A of the Ordinance, which forms an important part of the solicitors disciplinary scheme.  There is substantial overlap between the grounds and matters raised in this application and those raised in HCAL 157/2004.

17.  Although the grounds set out in the form 86A are couched in very general terms and no judgment in respect of which relief is sought is identified, it is plain that the disciplinary proceedings relating to the Mr Ma, which I have described in some detail, feature largely in this application: see paragraphs 95 to 101 of the form 86A and the supporting affirmation and exhibits filed by Mr Ma in relation to his application for leave.

18.  This, however, is not the end of the matter.  Eight days after the application for leave in HCAL 104/2008 was made, Mr Ma and his Association made yet another application for leave to apply for judicial review – HCAL 108/2008.  Amongst other things, it seeks to challenge the constitutionality of the leave requirement in section 22 of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  No particular judgment in respect of which relief is sought is identified.  But it should be noted that HCAL 108/2008 is taken out after Mr Ma’s failure to get leave from the Court of Appeal to appeal to the Court of Final Appeal in CACV 221/2003 on 26 August 2008.

19.  On 15 October 2008, Mr Ma and his Association took out a third application for judicial review: HCAL 123/2008.  The disciplinary proceedings that Mr Ma has faced again feature prominently in the papers.

20.  In my view, the three applications should therefore be considered together.

Hypothetical or academic challenges

21.  Mr Ma and his Association do not identify any judgment, order, decision or other proceeding in respect of which relief is sought.  Rather, the Court of Appeal decision of Leung v Secretary for Justice [2006] 4 HKLRD 211 has been relied on in all three forms 86A.

22.  It is very important, in dealing with these applications for leave, to consider whether leave should be granted in the absence of any identified judgment, order, decision or proceeding that affects directly or indirectly Mr Ma or his Association.  The questions or subject matters of challenge in the applications are general and do not relate to any specific matters that directly relate to Mr Ma or his Association (except the solicitors disciplinary proceedings that Mr Ma has faced which I will return to in due course).  In that sense, the questions or subject matters raised are “hypothetical or academic” in nature.  Moreover, they relate to constitutional documents or different pieces of legislation, which have been in place for a period of time.

23.  All this raises immediately a number of inter-related issues, namely, whether the Court should entertain the hypothetical or academic questions, whether Mr Ma and his Association have sufficient interest to mount the challenges and the question of delay.  Further, as the Association is, according to Mr Ma, a pressure or interest group that has not been incorporated (and thus not a legal entity), this also raises the question of the extent to which the Court should allow such a pressure or interest group to mount the challenges in its own name.  There are, of course, general principles governing these matters and numerous English cases that have gone into these matters in detail.  See generally de Smith’s Judicial Review (6^th ed) Chap 2.

Leung v Secretary for Justice

24.  However, in all these matters, this Court is guided by the principles enunciated by the Court of Appeal in Leung.  In that case, the Court was dealing with a constitutional challenge against s 118C of the Crimes Ordinance (Cap 200) concerning homosexual buggery with or by men under 21.  The applicant, who led a homosexual lifestyle, did not identify any “judgment, order, decision or other proceeding” in his form 86A.  His challenge was mounted a long time after the enactment of the provisions in question.  On the other hand, he was not facing any criminal prosecution or threat of prosecution when he mounted the challenge.  All this led to arguments over the Court’s entertaining a hypothetical or academic challenge, the question of standing and that of delay.  The relevant principles were set out in the leading judgment of Ma CJHC, with whose judgment the other members of the Court agreed:

“  27.      …

(1)      Neither section 21K nor section 53 requires the existence of a “judgment, order, decision or other proceeding” as such, although in the vast majority of cases this will be so.  As pointed out above, there are references in section 21K and O.53 to the available forms of relief and in particular as regards declarations, the court is required to look at all the circumstances of the case in order to decide whether it would be just and convenient for a declaration to be made (see section 21K(2)(c); O.53, r.1(2)(c)).  This suggests that there is considerable flexibility and that as a matter of form, it is permissible simply to target legislation rather than any particular judgment, order, decision or other proceeding that has directly affected the would be applicant.  Nevertheless, in such a situation, the court will more closely look at an applicant’s standing and whether or not he does have  a sufficient interest to bring judicial review proceedings.

…

28.  Before dealing with the “substance” arguments, I wish to address directly the question whether the courts have the jurisdiction to grant relief in cases which involve future events which may or may not occur and which are therefore sometimes said to be hypothetical.  In my judgment, the court clearly has jurisdiction but it must be carefully exercised : -

(1)      I have already referred to the relevant statutory provisions which indicate considerable flexibility and width in the granting of declarations.

(2)      In a number of cases, the courts have stated that notwithstanding that future events or proposed conduct are involved, then in “exceptional cases”, the courts would countenance granting appropriate relief …

(5)   It is of course up to the court on a case by case basis to determine whether sufficiently exceptional circumstances exist to enable it to exercise the discretion to hear cases notwithstanding that future conduct or a hypothetical situation is involved.  …

(6)   In my judgment, another area in which the court may be more inclined to engage itself in determining issues is where constitutional challenges are made to legislation.  Here, the courts in Hong Kong are duty bound to enforce and interpret the Basic Law so that if any legislation infringes the Basic Law (or the Bill of Rights), that law must be held invalid : - see Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, at 25G-J.  This is all the more so where fundamental rights are involved and even more acute if a risk exists of a wrong prosecution.

(7)   The reason why there is a stress on the need to show exceptional circumstances in such cases is simply that on the whole, the courts perform the function of adjudicating on real disputes and controversies and not fictitious ones.  One of the recognized dangers of dealing with hypothetical or academic cases is that the court may be asked to decide important principles without the benefit of a full set of facts.  There is also to be considered a practical factor : - the administration of justice would hardly be served if the courts were regularly to entertain cases which were not real but only hypothetical.

(8)   Ultimately, I am persuaded that where academic or hypothetical issues are involved, the question is not really one of jurisdiction but of discretion.  …

36.  … I am of the view that the time limit imposed by O.53, r.4(1) must equally be applicable to challenges such as that in the present case.  As a matter of principle, any challenges involving the legality of legislation ought to be brought promptly …

38.  In my judgment, the three month period imposed by O.53, r.4(1) applies to the Applicant as it does to any other applicant in judicial review proceedings.  Although the asserted breach of his rights can be said to be a continuing one, the requirement in O.53, r.4(1) is that the application is made “promptly” and in any event within three months of the date “when grounds for the application first arose”

39.  …

(1)   When the constitutionality or legality of a statute is involved, providing that the point is an arguable one and the applicant has a sufficient interest, the time factor, while it is relevant, is nevertheless perhaps not as compelling a consideration as in other situations.

(2)   …if a statute or statutory provision is indeed unconstitutional, the court should take the first available opportunity to grant the appropriate relief (providing of course an applicant has sufficient standing) and be hesitant in taking too strict an approach on time.  It is important to bear in mind that where the constitutionality of a statute is being questioned on the basis that fundamental human rights have been breached, the public interest is very much engaged.”

Challenge against Leung v Secretary for Justice

25.  At the oral hearing and in a “further supplemental submission” lodged with the Court by Mr Ma after the oral hearing, Mr Ma sought to persuade the Court, contrary to the stance taken in the forms 86A, that Leung should not be followed because it has been “decided ‘per incuriam’ and plainly against the letter or spirit of s 21K of the High Court Ordinance and the new Order 53 of CPR of England.  Further or in the alternative, this judge made law is unconstitutional and unlawful”. 

26.  I reject the submission.  S 21K of the High Court Ordinance was very much in the forefront of the mind of the Court of Appeal in Leung: see paras 22, 27(1) and 34.  In any event, I fail to see how the decision in Leung is contrary to the letter or spirit of s 21K.  The decision is binding on the Court of First Instance.  The contention that the decision in Leung is “unconstitutional and unlawful” cannot be entertained in this Court, which is bound by the decision.

Further observations

27.  In any event, the question of entertaining “hypothetical or academic” questions cannot be resolved simply by following blindly what the courts in the United Kingdom do there.  In this regard, Mr Ma and his Association have asserted that the courts there have taken or have been taking an increasingly liberal stance in the matter.  In my view, however, a much fairer and comprehensive summary of the English position can be found in de Smith, op cit, Chap 2.

28.  Be that as it may, very generally speaking, the position in Hong Kong, in terms of, amongst other things, its constitutional and political structures, social, cultural and historical background, judicial time and resources, and in terms of the direction and pace of development of constitutional and administrative law including in particular litigation involving human rights, is not necessarily identical or comparable to that in UK, where the direction and pace of development is also greatly affected by developments on the Continent and in Strasbourg.  That said, needless to say, UK decisions and European/Strasbourg jurisprudence must remain highly relevant sources of guidance for the courts in Hong Kong whenever the same or similar rights or procedures are involved.

29.  When hypothetical or academic questions are raised by applicants acting in person, further complications could arise.  The present applications by Mr Ma and his Association, both acting in person and without legal aid, offer a good illustration of the practical difficulties that an over-liberal approach to entertaining “hypothetical or academic” questions could lead to.  The forms 86A and the supplemental submissions and supporting materials together run into many pages.  They raise, or attempt to raise, tens of “fundamental” “constitutional”/“human rights” issues and grounds, which are all hypothetical or academic in nature.  Unfortunately, they are very poorly expressed or presented in the materials filed, making it very difficult for any reader to understand what the author really tries to say.  This criticism applies not only to the questions these applicants seek to raise but equally to the arguments in support.  The position is not improved by the oral hearing held, in which Mr Ma represented both himself and his Association.

30.  In short, the assistance that the Court can usefully derive from the written materials and oral submissions is very limited.

31.  That, however, does not necessarily mean that the papers filed contain or raise no potentially arguable and meaningful question or issue.  Nor is it to say that the Court cannot, by using its best efforts, discern, whether clearly or vaguely, some potentially arguable and significant questions or issues out of all this.  And the Court can even think of an argument or two that could be raised in support of some of them which have not been raised in the materials filed or submissions made.  But there is a limit to the extent that the Court can go to “help” an unrepresented applicant to improve on his arguments, or, put it another way, to “nurture” his case into maturity – one which is ripe for granting leave.  Certainly the Court does not sit to act as unrepresented applicants’ legal advisers.

32.  And the fundamental problem remains: one gets very limited useful assistance from Mr Ma and his Association on these potentially arguable and significant questions or issues.  The point I wish to make can be illustrated this way: if the Court were to grant leave nonetheless in those circumstances, what would happen?  No doubt the Department of Justice would enter an appearance for all the respondents named and present to the Court their side of the argument.  But who would present the other side of the argument to the Court?  By definition, the questions and issues are meaningful and even important ones.  Can and should the Court simply leave it to Mr Ma and his Association to present the opposite arguments to the Court and adjudicate on the questions and issues accordingly?  If not, is the Court to appoint an amicus curiae to assist it in order to fairly and competently resolve the questions and issues at hand, which are, ex hypothesi, hypothetical and academic ones?  Certainly the Court should not enter into the arena and argue the case for the applicants – the Court’s impartiality and appearance of impartiality would be at stake.  All this begs the question of whether it would really make good sense to entertain these hypothetical and academic questions and issues in the first place.

33.  As has been decided by the Court of Final Appeal, the correct test to apply for granting leave is reasonable arguability, rather than potential arguability: Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.  That is one way of getting rid of questions or issues that are only potentially arguable but which are so poorly presented in the papers filed or at the ex parte oral hearing that the Court finds them to be not reasonably arguable as per the actual arguments raised by the applicant.  But when taking such a route, the Court must make it very clear that the questions or issues raised are rejected as not being reasonably arguable only on the footing of the actual arguments relied on by the applicant.  In other words, the Court is not shutting its doors on the issues or questions in future if they should be supported by some other (reasonably arguable) arguments and the Court’s instant decision as a precedent must be understood in that light.

34.  A more straightforward way of handling the problem, in my view, is simply to refuse, as a matter of discretion, to entertain these “half-baked” hypothetical and academic issues or questions now and to await the day when they are more maturely presented before the court for adjudication by someone else or, better still, when they actually arise in a real case.  And in the latter case, where the litigant is acting in person, the justification for appointing an amicus curiae to assist the Court would be much greater. 

35.  Since whether to entertain a hypothetical or academic issue or question is a matter of discretion, the fact that it is poorly raised or argued by the applicant in question and the undesirability of adjudicating it in those circumstances must be highly relevant considerations to take into account in deciding how to exercise the Court’s discretion.

Present case

36.  Applying these principles to the present case, the situation is plain. 

37.  Putting aside Mr Ma’s disciplinary proceedings for the time being, the present challenges are clearly “hypothetical or academic” ones.  No judgment, order, decision or other proceeding has been identified.  This is not fatal.  But the Court would more closely look at whether the applicants have a “sufficient” interest to mount the challenges.  And the Court would only entertain an application for relief in such situation if there are “sufficiently exceptional circumstances”. 

38.  Ultimately, this is not a question of jurisdiction but discretion.  Whether sufficiently exceptionally circumstances exist is to be determined on a case-by-case basis.  All relevant circumstances must be taken into account, including in particular how well the issues or questions have been raised and argued in the materials filed and the oral submissions made and what assistance on the issues the Court can expect to receive from the applicants in due course if leave were to be granted.

HCAL 104/2008

39.  In relation to HCAL 104/2008, in so far as the challenges can be understood, they are directed against the solicitors disciplinary scheme in the Legal Practitioners Ordinance, particularly, s 9A thereof.  It is alleged that the Council of the Law Society has been given, quite unconstitutionally, “full jurisdiction and uncontrolled discretionary power” in relation to disciplinary matters.  It is also alleged that disciplinary proceedings are not civil but criminal or penal in nature.  It is said that the courts, namely, the High Court and the Court of Final Appeal have been wrong in regarding such proceedings as civil in nature.

40.  Mr Ma, as a solicitor who has faced disciplinary proceedings, may arguably be said to have sufficient interest to raise these challenges.  However, the difficulty with such an argument is that the disciplinary proceedings that Mr Ma has faced have already happened in the past.  He has lodged appeals and mounted judicial review proceedings in relation to the disciplinary matter.  Either the present complaints were raised in those challenges or they could and should have been raised. 

41.  Putting aside the disciplinary proceedings that Mr Ma has faced, Mr Ma is no longer a practising solicitor.  He is an undischarged bankrupt and cannot practise.  When his bankruptcy will be discharged and whether he will resume practice thereafter are all unknown.  Moreover, even if he should eventually return to practise law, whether he would face another disciplinary complaint is far from clear.  And if and when he does, there would still be ample opportunity for him to take out judicial proceedings to challenge the constitutionality of the disciplinary scheme in the Ordinance, if he so wishes.   

42.  Unlike the applicant in Leung who led a homosexual lifestyle and thus the risk of criminal prosecution was always hanging over his head, a solicitor practising in Hong Kong does not, I think it is fair to say, have the unpleasant prospect of having to face disciplinary proceedings hanging over his or her head all the time, or even from time to time.  There is simply no comparison between the case of a solicitor and the case of a young homosexual here.

43.  So far as the Association is concerned, the membership of the Association is a complete mystery to the Court, apart from that Mr Ma is apparently a “promoter, founder and chairman”, and that a Mr William Au (a solicitor) and a Mr Alexander Chow (a non-lawyer) are members of the Association.

44.  For the reasons that I have just explained in relation to the case of Mr Ma, and given the little that is known about the Association and its membership, it is difficult to see sufficiently exceptional circumstances that would justify the Court entertaining the challenges by the Association in HCAL 104/2008.  If the Association has any members who are solicitors and who are currently facing disciplinary proceedings, those members can in their own names mount the relevant challenges.

45.  The burden is really on the Association as an applicant to persuade the Court that there are sufficiently exceptional circumstances to justify the Court entertaining the application for relief which is sought in a hypothetical or academic situation.

46.  Having borne in mind the entire circumstances, including the merits of the proposed challenges, the degree of importance of the questions they raise, how clearly they have been raised and how well they are argued in the papers filed and submissions made, I have come to the conclusion that the Court’s discretion should be exercised against entertaining the application.

HCAL 108/2008

47.  In relation to HCAL 108/2008, in so far as the challenges can be reasonably comprehended, they are directed against the rule in O’Reilly v Mackman [1983] 2 AC 237 (namely, as a general rule it is contrary to public policy and an abuse of the process of the court for a plaintiff complaining of an infringement of his public law rights to seek redress by ordinary action, where all the remedies for the infringement of his public law rights could be obtained on an application for judicial review).  They are also directed against the leave requirement in s 22 of the Hong Kong Court of Final Appeal Ordinance (Cap 484) when the appeal involves the intended appellant’s constitutional or human rights.  The challenges also say that the application of the civil standard of proof and other civil evidential rules in civil matters and the application of the criminal standard of proof and other criminal evidential rules in criminal matters are wrong.  Moreover, in so far as it can be reasonably understood, it is said that solicitors disciplinary proceedings are penal and criminal in nature, thus engaging arts 6 and 105 of the Basic Law, and furthermore, any court proceedings arising therefrom should be treated as criminal for all purposes, including the requirement for leave to appeal to the Court of Final Appeal.

48.  There are also complaints regarding the court’s equal treatment of a natural human being and an artificial legal entity such as a limited company.

49.  Furthermore, there are complaints that Hong Kong does not have a constitutional court and the civil law principles, law of evidence, procedure and practice of the court do not sufficiently recognise a natural human being’s rights and obligations under the ICCPR.  The amended form 86A also devotes a number of paragraphs to the disciplinary proceedings that Mr Ma has faced and makes complaints accordingly.

50.  So far as Mr Ma’s application for leave in HCAL 108/2008 is concerned, I make similar observations that I have made in relation to his application in HCAL 104/2008.  In so far as the present application relates to the disciplinary proceedings that he has faced, he may arguably have sufficient interest to raise some of the questions that I have just described.  However, the problem with that approach is that the disciplinary proceedings have taken place quite some time ago, and there have been appeals and judicial review applications.  The present challenges were either raised in those proceedings, or were matters that could and should have been raised there.  It is an abuse of the process of the court to raise these matters in HCAL 108/2008, in so far as Mr Ma relies on the disciplinary proceedings as giving him sufficient standing in the matters.  (For Mr Ma’s “standing” in relation to the challenge against s 22 of the Hong Kong Court of Final Appeal Ordinance, see below.)

51.  But to be fair to Mr Ma, at the oral hearing, Mr Ma said repeatedly that his present applications for judicial review have nothing to do with the disciplinary proceedings that he has faced, save to the extent that the disciplinary proceedings (and the subsequent court proceedings that arose from them) serve as illustrations of the points and challenges that he and his Association are raising in these leave applications. 

52.  That being the case, I must regard Mr Ma simply as an undischarged bankrupt, who used to practise law as a solicitor, in reviewing whether he has shown sufficient interest to make the present challenges, and whether there are sufficiently exceptional circumstances to justify the Court’s entertaining the application for relief, which is sought on a hypothetical or academic situation. 

53.  The present case is wholly different from the situation faced by the applicant in Leung.   There, not only was the applicant’s personal liberty at stake given the possibility of criminal prosecution, the existence of the offence in the statute book also affected “the dignity of a section of society in a significant way and as such provided a member of that section [namely, the applicant] with a sufficient interest” (para 29).

54.  Here, I rely on similar observations that I have already made in relation to Mr Ma’s standing in HCAL 104/2008.  I need not repeat myself here. 

55.  So far as the position of the Association is concerned, again very similar observations can be made against the Association in the present application as those already made in the earlier part of this judgment in relation to HCAL 104/2008.  I will not repeat myself here.

56.  One point to note is that the challenge directed against the rule in O’Reilly v Mackman is, on final analysis, an argument that Mr Ma and his Association could and should have raised in another judicial review application made by them, namely HCAL 74/2008.  In HCAL 74/2008, Mr Ma and his Association sought leave to challenge the leave requirement laid down in Order 53, rule 3, regarding commencement of judicial review proceedings.  The leave application was refused by Lam J after an oral hearing: see judgment handed down on 21 August 2008.  

57.  In my view, the challenge against the rule in O’Reilly v Mackman is a highly relevant argument to the challenge against the Order 53, rule 3 leave requirement for launching judicial review proceedings.  If public law proceedings could be commenced in the High Court as an ordinary action by writ or originating summons, rather than by way of an application for judicial review, the justification for requiring leave to be obtained before an application for judicial review could be mounted would arguably disappear, because the commencement of an ordinary action does not require the obtaining of leave.

58.  That, in my view, is a consideration against granting leave in HCAL 108/2008. 

59.  So far as merits are concerned, the materials filed and submissions made have done a very poor job in terms of clearly identifying the issues sought to be raised or setting out the arguments relied on. 

60.  That solicitors disciplinary proceedings are civil in nature and that civil (Re H) standard of proof ought to be applied have been authoritatively decided by the Court of Final Appeal, and there is no room for challenge: Solicitor (24/07) v Law Society of Hong Kong [2008] 2 HKLRD 576; see also Koon Wing Yee v Insider Dealing Tribunal [2008] 3 HKLRD 372, 388 (para 37).

61.  The contention that solicitors disciplinary proceedings engage arts 6 and 105 of the Basic Law is plainly unarguable and I cannot discern any reasonable argument to the contrary in the materials filed or submissions made.

62.  The suggestion that judicial review should be available against the decisions of the High Court and the Court of Final Appeal, purportedly by reason of art 11 of the Basic Law, is not supported by any reasonably arguable arguments in the papers or submissions: see relief 3(c) of the amended form 86A.

63.  The absence of a constitutional court in Hong Kong is a fact (see Leung, para 20).  However, I find no reasonably arguable arguments (that I can understand) in the papers or submissions to back the suggestion that it can therefore form the subject matter of a judicial review challenge.  The reference to the Human Rights Act and the civil justice reform in UK, which do not apply in Hong Kong, does not improve at all on the arguability of the contention.

64.  Bearing all this in mind, I have come to the conclusion that in the exercise of my discretion, the Court should refuse to entertain the hypothetical or academic challenges made under the present application.  Neither Mr Ma nor his Association has shown sufficient interest to mount them, and there are not sufficiently exceptional circumstances to justify their bringing the challenges. 

65.  That leaves Mr Ma’s challenge against s 22 of the Hong Kong Court of Final Appeal Ordinance.  Although Mr Ma has not specifically relied on his own application for leave to appeal to the Court of Final Appeal from the Court of Appeal’s judgment in CACV 221/2003 as giving him sufficient standing to mount the challenge in HCAL 108/2008 against the constitutionality of s 22, I am prepared to assume that he has sufficient standing to do so, given that there is still pending before the Court of Final Appeal his application for leave (FAMV 45/2008), he having failed to obtain such leave from the Court of Appeal.

66.  This is what Mr Ma says in his amended form 86A relating to the leave requirement:

“12.   It is submitted that the Criteria under S22 FCAO for Modern ‘Civil Cause and Matter’: Leave would be granted as of right if the value of the amount in dispute exceed HK$1,000,000:

(a)          is a proportionate restriction applicable to an Artificial entity for Modern ‘Civil Cause and Matter’;

(b)         is unconstitutional and unlawful and in any event a disproportionate restriction if the Appellant’s fundamental rights as a natural human person have been violated or engaged because such Criteria may make provision of effective substantive remedies and procedural safeguards impossible.

[Note:

In a Human Right Based Society, it is unconstitutional and unlawful for the HKSAR Legislature to draft and enact any legislation or law with the Legislative Objective that ‘Justice be given for Moneys’ should override ‘Recognition of Human Rights’.]

13.  It is submitted that the degree and level of Intensive of Review applied to an Artificial Legal Entity under the Criteria as set under S32 FCAO for Modern ‘Criminal Matter’: Leave would be granted if it is shown that substantial and grave justice has been done, needs not be as highly demanding and cogent as in the case of a criminal appeal of a Natural human person.”

67.  In so far as one can reasonably understand what Mr Ma is trying to say, Mr Ma’s main point appears to be that whereas an intended appeal involving a claim that is worth $1 million or more can be allowed to proceed to the Court of Final Appeal as of right in s 22(1)(a), no equivalent or similar provision is made in relation to an intended appeal where the intended appellant’s fundamental human rights are involved.

68.  It should be remembered that under s 22(1)(b), the court may, as a matter of discretion, give leave to appeal where the intended appeal involves a question which, by reason of its great breach general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

69.  I note that Mr Ma has not said that such a discretionary requirement for leave is unconstitutional by itself.  His complaint appears to be that when compared with the as-of-right treatment in relation to a case where the value of the subject matter in dispute is $1 million or more, the same or similar treatment is not available to the intended appellant that he has in mind.

70.  I do not think this argument is reasonably arguable on the arguments presented in the materials filed.  First, the question of equality of treatment does not come into play unless one is comparing like with like, and one does not have such a case here. 

71.  Secondly, even if there were unequal treatments, it does not mean that in the case of the intended appellant that Mr Ma has in mind, he should be allowed to appeal to the Court of Final Appeal as of right.  It would only mean, in my view, that the as-of-right provision in s 22(1)(a) should be struck down, so that all intended appellants would have to apply for discretionary leave under s 22(1)(b).

72.  The reference in para 13 of the amended form 86A to s 32 governing the grant of leave in criminal appeals to the Court of Final Appeal is wholly irrelevant for the simple reason that solicitors disciplinary proceedings are not criminal proceedings and s 32 simply has no relevance, in so far as Mr Ma is relying on his own case to give him standing – which is what the present discussion is about.

HCAL 123/2008

73.  Turning to HCAL 123/2008, the challenges, in so far as they can be comprehended, relate to the alleged differences in meaning between the English version and Chinese version of art 39 of the Basic Law, the extent to which ICCPR and the International Covenant on Economic Social and Cultural Rights (ICESC) are made Hong Kong law directly by art 39, whether the provisions in ICCPR, including its preamble should form part of the local law, whether people in Hong Kong also enjoy rights and obligations given under the Constitution of the People’s Republic of China, and again various matters relating to solicitors disciplinary proceedings.

74.  A significant portion of the form 86A is devoted to the disciplinary proceedings that Mr Ma has faced and the issues arising therefrom, including the correctness of various decisions of the Court of Final Appeal and the Court of Appeal in relation to those issues.

75.  Again, very similar observations are made here.  So far as Mr Ma as applicant is concerned, leaving aside the solicitors disciplinary proceedings that he has faced, I take the view that he has not shown sufficient interest to mount the challenge.  So far as he relies on the disciplinary proceedings that he has faced, the subject matter was either raised before, or could and should have been raised before.

76.  So far as the Association as applicant is concerned, I do not find, on the evidence placed before the Court, sufficiently exceptional circumstances to allow the Court to exercise its discretion to entertain the present challenges.

77.  In this regard, the Court has also borne in mind the merits of the challenges as they are presented in the materials filed and submissions made.  Generally speaking, the issues are poorly identified and the arguments half-baked.  And in so far as the challenges attack decisions that are binding on the Court of First Instance, I am duty bound to reject them as plainly unarguable.

78.  Having considered the matter in the round, I have come to the firm conclusion that no sufficient interest has been shown by either applicant, and there are insufficiently exceptional circumstances to justify the Court exercising its discretion to entertain the hypothetical or academic questions.

Outcome

79.  In short, all three applications for judicial review are refused with no order as to costs.

80.  These applications have evidenced a tendency on the part of Mr Ma and his Association to mount judicial review applications in hypothetical or academic situations, when they have no sufficient interest in the matters and there are no sufficiently exceptional circumstances to justify their mounting.  All this could amount to an abuse of the process of the court.  So far as Mr Ma and his disciplinary proceedings are concerned, prima facie, all challenges ought to have been raised in the appeals or judicial review proceedings that have already been lodged.  To seek to do otherwise could amount to an abuse of the process of the court.  I do not consider the present occasion a suitable occasion for imposing a restricted proceedings order against Mr Ma or his Association.  But it could be different in future.  This serves as a warning to Mr Ma and his Association from the Court of its jurisdiction and readiness to make restricted proceedings orders against them in future if and when it is just and convenient to do so. 

81.  Mr Ma has orally indicated that he wishes to restore the hearing of the leave application in HCAL 157/2004.  The Court has indicated at the hearing that this will only be entertained after judgment in the present three applications.  Now that judgment is handed down in relation to these three applications, if Mr Ma, having considered the contents of this judgment and its implications, still wishes to restore the hearing, he should make a formal application to the Court and it will be dealt with accordingly.