KWOK CHEUK KIN v. DIRECTOR OF HOME AFFAIRS

HCAL 48/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 48 OF 2011

____________

BETWEEN

____________

_________________________

D E C I S I O N

_________________________

1.  By a summons dated 29 November 2011, the Respondent applied to set aside the ex parte leave granted by this court to the Applicant to apply for judicial review in respect of the notice issued by the Respondent on 15 April 2011 [“the Notice”] under Section 83 of the District Councils Ordinance Cap 547 [“DCO”]. The notice stated that Mr Yung Chi-ming has become an ex officio member of the Islands District Council in accordance with section 9(1)(c) and 17(1) of the DCO by virtue of his holding office as chairman of the Cheung Chau Rural Committee [“CCRC”]. The ex parte leave was granted on 11 July 2011.

2.  As stated in para 1 of the relief sought by the Applicant in the Form 86, his case is that the Notice is unlawful because CCRC is not a rural committee for the purpose of the DCO as it is inconsistent with the provisions in,

(a) Part 8 of the Village Representative Election Ordinance Cap 576 [“VREO”];

(b) Section 20A of the Legislative Council Ordinance Cap 542 [“LCO”];

(c) Article 21 of the Hong Kong Bill of Rights Ordinance Cap 383 [BoR];

(d) Article 39(2) and 40 of the Basic Law.

3.  The Respondent seeks to set aside the leave on the following bases,

(a) The matters raised could and should have been raised in previous judicial review proceedings commenced by the Applicant and as such it is an abuse of process for the Applicant to litigate them by a fresh judicial review;

(b) The Applicant failed to make full and frank disclosure in relation to the previous judicial review proceedings when he sought leave;

(c) The grounds relied upon are not reasonably arguable.

4.  The Respondent also seeks to strike out some paragraphs in the Form 86 in case the court is not with him on the setting aside of leave.  At the hearing on 13 Feb, this court indicated that this part of the summons can be deferred.  Based on the submissions advanced at the hearing and the indication of Mr Dykes SC (for the Applicant), if this court does not set aside leave, the Applicant will amend the Form 86 focusing on the arguments under Article 21 of the BoR and it is likely that this court needs not be troubled with this part of the summons.

Previous proceedings

5.  Prior to the present case, the Applicant had launched three set of judicial review proceedings mounting challenges relating to the CCRC.  The first two sets of proceedings were not disclosed by him in the papers filed by him for ex parte leave to apply for judicial review in the present proceedings. He acted on his own without legal representation in those two sets of proceedings and he did not inform his present solicitor of the same.  But that is not an excuse for non-disclosure.  The duty of full and frank disclosure falls upon the party, not the solicitor though the solicitor owed a separate duty to the court in the proper conduct of the proceedings, including a duty to advise his client on the duty of full and frank disclosure and to take the necessary steps to make the necessary enquiry to ensure relevant information is placed before the court in an ex parte application.

6.  In those earlier proceedings, the Applicant sought leave in 2006 to apply for judicial review in respect of the 2006 election of the CCRC.  The first attempt was made in HCAL 102 of 2006.  Leave was refused by Chu J (as she then was) on 14 September 2006.  The second attempt was made in HCAL 105 of 2006 and leave was refused by Chu J on 25 September 2006.  As set out in his affirmation in HCAL 105, his contention was that the election for CCRC should comply with the provisions in VREO.  Chu J held that because Cheung Chau is not a village listed in either Schedules 1 or 2 of VREO, it has no application.  There was no appeal by the Applicant against such refusals of leave.

7.  Since leave was not granted, the Respondent was not involved in these two earlier sets of proceedings.

8.  On 27 March 2007, the Applicant commenced the third set of judicial review proceedings in HCAL 33 of 2007.  He was represented by lawyers in this application.  The decisions challenged, as stated in the Form 86A, were,

(a) The approval given by the Director of Home Affairs on 4 February 2007 to the establishment of the 19^th Session of the CCRC;

(b) The refusal of the Secretary for Home affairs on 28 February 2007 to amend Schedules 1, 2 and 3 in accordance with section 67 of the VREO.

9.  Para 1 of the relief sought in HCAL 33 of 2007 indicated that the bases of the Applicant’s challenge were part 8 of the VREO, s 20A of the LCO and Article 21 of the BoR and Article 39(2) of the Basic Law.  Mr Mok SC highlighted that they are precisely the same as the bases of the attack in the present proceedings.

10.  HCAL 33 of 2007 was scheduled to be heard on 18 March 2008.  However, after the Court of Final Appeal delivered the judgment in Lai Tak Shing v Secretary for Home Affairs (2007) 10 HKCFAR 655, the Applicant had advice from counsel and decided not to proceed with the challenge in respect of the refusal to amend the Schedules.  However, the Applicant still intended to proceed with the challenge against the approval for the establishment of CCRC.  This stance was set out in a letter of 25 February 2008 from the solicitor for the Applicant to the Department of Justice (acting for the Secretary and the Director of Home Affairs).

11.  In respect of the challenge to the approval, though the letter raised a new point stemming from the disqualification provision in the Constitution of CCRC, there was no indication that the original grounds set out in the Form 86A were abandoned.  Para 11 of the letter put the challenge as follows,

“In exercising his power under Section 6(1) to acknowledge CCRC as a Rural Committee, the Secretary must not act in breach of Article 21 of the Bill of Rights Ordinance. Likewise, it is unlawful for the Director, as agent of the Secretary, to arrange, coordinate, and supervise the CCRC’s Kaifong representatives election that are in breach of Article 21 of the Bill of Rights Ordinance. The Secretary should have refused to countenance an election based on arrangements that were plainly not consistent with comparable statutory elections for the reasons given above.”

12.  In the Form 86A in HCAL 33 of 2007, the approval was challenged on the ground that the establishment of the 19^th session of the CCRC was inconsistent with the provisions of the VREO, LCO taken together with Article 21 of the BoR, see para 66 of the Form 86A.  There was also a reference to Art 21 and s 9 of DCO at para 56 under the heading of “participation in public affairs”.

13.  These original pleas remained in the draft amended Form 86A dated 3 March 2008 sent under the cover of a letter dated 4 March 2008 from the Applicant’s solicitor to the Department of Justice.

14.  On 14 March 2008, the Applicant reached agreement with the Department of Justice for the withdrawal of HCAL 33 in consideration of the Director of Home Affairs’ undertaking to review and reconsider the disqualification provisions in the Constitution of the CCRC.  This culminated in a consent order on 18 March 2008 giving leave to the Applicant to withdraw HCAL 33.

Abuse of process

15.  Mr Mok relies on the doctrine applied by the Court of Appeal in Chiang Lily v Secretary for Justice [2009] 6 HKC 234 to mount his argument on abuse of process.  The statement of principle can be found at para 57 of the judgment of Ma CJHC (as he then was),

“… the real issue that, in my view, has to be addressed, namely, the question of abuse arising from matters that ought properly have been litigated in previous proceedings. I emphasize here the existence of two elements that have to be demonstrated by the party alleging abuse: that there exist matters that could and should have been litigated in earlier proceedings … I think it is now clear that just because a point could have been raised in earlier proceedings did not of itself mean that it should have been.”

16.  The proper approach for determining whether a point should have been raised in earlier proceedings is set out in Johnson v Gore Wood [2002] 2 AC 1 at p 31 by Lord Bingham,

“It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach o what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before.”

17.  At para 63 in Lily Chiang, Ma CJHC summed up by saying,

“The key lies in determining whether an abuse has truly taken place and an examination of the public interest that is involved.”

18.  In the context of public law litigation, I wish to repeat what I said in Domingo v Commissioner of Registration [2011] 6 HKC 532 at para 22 as to the need for broader consideration in examining the public interest,

“As it has often been said, the role of the court in judicial review is different from its role in private law litigation. In the former, the court exercises its supervisory jurisdiction to maintain the rule of law and it would confine itself to review the legality, rationality and fairness of an administrative decision. … In public law litigation, the court has to be mindful that in most of the cases (if not all) the public authority exercises a public power. Apart from the interest of the parties before the court, a decision made by the public authority would affect the society at large and as such there could be conflicting interests which need to be balanced. Given the wider scope of public interest (which is more susceptible to dynamic changes from time to time) being involved, the need for flexibility is much greater than that in the resolution of a dispute between private interests. …”

19.  Having said that, one must also take cognizance of the general public interest of having certainty in administrative decisions which underlies our requirement for promptitude in any challenge to such decisions.  In this connection, I would just quote two passages from the judgment of Stock JA (as he then was) in Lo Siu Lan v Hong Kong Housing Authority CACV 378 of 2004, 17 Dec 2004.  At para 34, His Lordship said,

“A prime purpose of insisting on promptitude in judicial review of administrative decisions is embedded in recognition that important administrative action can be paralyzed by challenges that transpire to be unmeritorious. The right to review the legality of administrative decisions is of course essential to a free society governed by the rule of law. But it is essential too that that freedom be exercised in a framework that reflects a proper awareness of the needs of public administration.”

20.  Then at para 37,

“What is and what is not detrimental to good administration must necessarily also be a question of context: see R v Dairy Tribunal ex parte Caswell [1990] 2 AC 738, 749:

‘I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detrimental to good administration. This is because applications for judicial review may occur in many different situations, and the need for finality may be greater in one context than in another’. (Emphasis added) …”

21.  Mr Mok submitted that the grounds of challenges raised in the present case are the same as those raised in the previous proceedings.  Counsel submitted that they could and should be dealt with in those proceedings and it is an abuse for the Applicant to mount what is essentially the same challenge by a fresh set of proceedings.

22.  Mr Dykes, on the other hand, submitted that the subject matter of the challenge is different: in the past the Applicant challenged the CCRC election whilst in the present case he is challenging the composition of the Island District Council in terms of the ex officio membership of the chairman of CCRC as set out in the Notice.  Counsel also submitted that the challenge could not be made in HCAL 33 because of the decision of the Court of Final Appeal in Lai Tak Shing which invalidated the challenge to the refusal to amend the Schedules of the VREO.

23.  On the last point, I must disagree with Mr Dykes. As I have demonstrated by reference to what happened in HCAL 33 after the Court of Final Appeal had delivered judgment in Lai Tak Shing, the challenge to the approval given by the Secretary for CCRC was still very alive and it was not a challenge exclusively based on the disqualification provision.  Had the proceedings not been withdrawn as a result of the settlement, issues pertaining to the constitutionality of the CCRC by reference to Article 21 of BoR and VREO and LCO, amongst other issues, would have to be canvassed.

24.  Regarding the subject decisions in HCAL 33 and the present case, Mr Dykes is correct in pointing out that they are different. But that does not resolve the question whether the points raised in this case could and should have been raised in HCAL 33.  This is illustrated by the facts in Lily Chiang: the decision challenged in the first set of judicial review was the prosecutorial decision of the Secretary for Justice whilst the one involved in the second set was the decision of the magistrate to accede to the application.  That did not prevent the court from holding that the issues raised in the second set of proceedings could have been raised in the first set of proceedings, see paras 72 to 76 of the judgment.

25.  By reference to Sections 9(1)(c) and (3) and Item 1 in Part II of Schedule 3 of the DCO, Mr Mok contended that the ex officio membership of the chairman of the CCRC in the Island District Council is prescribed by statute and the Respondent does not have any discretion to withhold the publication of the Notice under section 83 of DCO.

26.  I agree with the analysis of Mr Mok.  Section 2 of the DCO gives the expression “rural committee” (in the context of DCO) the same meaning as the one laid down in Section 3(3) of the Heung Yee Kuk Ordinance, Cap 1097 [“HYKO”].  Under section 3(3), “rural committee” means a rural committee being a society in respect of which the Societies Ordinance Cap 151 applies and which has been acknowledged to be a rural committee by the Secretary for Home Affairs under section 6 of the Societies Ordinance.  Since 1961, the Secretary had acknowledged the CCRC as a rural committee under that ordinance.

27.  The latest election of the CCRC was held in November 2010.  The current CCRC took office from 1 April 2011 and its term of office is four years.  The chairman also holds office accordingly.

28.  Upon the taking up of the office by the chairman and his acceptance of office in accordance with Section 17(1) of the DCO, the Respondent was obliged to publish a notice under Section 83.

29.  In other words, within the statutory regime of the DCO, the Respondent has no discretion to reject the acceptance of office by a chairman of the CCRC as an ex officio member of the Island District Council.  Nor does the Respondent have any discretion to rewrite Item 1 in Part II of Schedule 3 of the DCO by ignoring its reference to the CCRC.  As held by the Court of Final Appeal in Lai Tak Shing, the Secretary (and all the more so, the Director) does not have the power to redefine the constituencies of the Island District Council.  An omission to publish the Notice including Mr Yu as an ex officio member would be an usurpation of such a power.

30.  It follows that if there were to be any constitutional challenges regarding CCRC’s status as a rural committee, those challenges have to be brought in respect of a decision other than one made under the DCO.  Whilst it is not for this court to tell the Applicant how he should formulate his case, the corollary of this conclusion is that the publication of the Notice does not give rise to new avenue of viable challenges.

31.  The Applicant wishes to emphasize that in the present proceedings he does not want to challenge the validity of the election for CCRC and its current composition.  Instead his case is that CCRC is just a private club, as such has no place in the Island District Council.  Mr Dykes said his case is accurately summarized at paras 2 to 6 of the Form 86.  I only need to quote from two paragraphs,

“… the existing electoral set-up is not constitutional because the KRs on the rural committee can wield political power as ex officio member of the IDC and also as member of the Heung Yee Kuk functional constituency but they have not been elected in public elections.” (para 3)

“… CCRC is only an association of social notables who are not returned by public elections from communities of residents in the rural areas, it is not a Rural Committee for the purpose of VREO and DCO. The Director’s formal recognition of the Chairman of CCRC to become as ex officio member of the IDC is unlawful.” (para 6)

32.  The subtext of these contentions is that to be entitled to a place in the District Council a member has to be returned from a rural committee which must be constituted by a process of public election and the election leading to the formation of the current session of the CCRC does not satisfy this criterion.  Two further implications flow from this analysis.

33.  First, it shows that in substance the Applicant is mounting a challenge by reference to what he perceives as deficiencies in the election of the CCRC.  The grounds of attack are essentially the same as those previously relied upon by him in HCAL 33.  Thus, I do not see any basis for saying that the points now advanced could not have been raised in the previous proceedings.

34.  Second, insofar as this challenge is being mounted as an attack to the Respondent’s exercise of power under Section 83, they cannot succeed because, as analyzed above, the Respondent simply had no discretion in not publishing the Notice.

35.  Should the challenge be made in earlier proceedings? From the submissions of Mr Dykes, the primary contention of the Applicant in the present proceedings is the theme of public election.  Counsel argued that by reason of the role of a chairman of the CCRC in the District Council and the Heung Yee Kuk, its members should be elected by a public election as opposed to a private election.  Mr Dykes put forward this argument based on Article 21 of the BoR.

36.  Article 21 does not refer to public election as such.  Rather it refers to the right to take part in the conduct of public affairs, to vote and to be elected at genuine periodic elections by universal and equal suffrage and to have access to public service.  Even though the CCRC election was not conducted by reference to the relevant rules in the VREO, it is still an election with public character: see paras 10 to 14 of the Form 86.  The election was closely monitored by public officers and the Island District Officer acted as returning officer.  The announcement of vacancies, date for election, registration of electors and the compilation and publication of register of electors, registration of candidates and the holding of the election was arranged and supervised by him.  In addition, the Constitution of the CCRC is also subject to comment by the Director.

37.  Mr Dykes submitted that these features were not sufficient to satisfy the requirement of public election.  When pressed for particulars, Mr Dykes identified the following measures as being lacking,

(a) There was no appeal against any decision on eligibility;

(b) The election result could not be challenged by election petition;

(c) The election was not subject to the Elections (Corrupt and Illegal Conduct) Ordinance [“ECICO”] Cap 554.

38.  None of these were specifically referred to in the Form 86 except a reference to the ECICO in the context of a general assertion about public elections under para 97.2.  Mr Dykes explained that the reliance on these measures can be made by way of submissions.  With respect, I do not agree.  If these were the real reasons for contending that the CCRC election and the ex officio membership of the CCRC chairman in the Island District Council infringes Article 21, they should be clearly and distinctly spelt out.  A constitutional challenge based on Article 21 is a systemic challenge which has implications beyond the composition of the Island District Council.  It is highly unsatisfactory for such an important challenge to be advanced by way of a wholly unparticularized reference to Article 21 amongst a host of allegations which apparently makes no mention of the real complaints.  Such obfuscation of issues in the Form 86 is not in line with Order 1A rules 1 and 3. A concise and clear statement of the real grounds of challenge in the Form 86 is necessary because it serves to inform a respondent what evidence needs to be prepared to meet the challenge.  Very often, different way of putting forward a systemic constitutional challenge calls for different evidence by way of response.

39.  With the greatest respect, the present Form 86 (not drafted by Mr Dykes) advances too many allegations which do not have bearing on the real issues that can properly be canvassed in this case and I find it hopelessly ill-focused.  Insofar as it seeks to re-litigate issues regarding the applicability of VREO to CCRC, it is obviously an abuse given the decision of the Applicant not to appeal against the decision of Chu J.  It is clear that he had accepted the correctness of Chu J’s decision as the law stands because in HCAL 33 he tried to argue that the Secretary ought to amend the Schedules in the VREO to include Cheung Chau as a village.  By implication, until such amendments were in place, he could not succeed based on Part 8 of the VREO.  Having taken such a course, in the absence of any good and cogent explanation, I see no reason why he should be permitted to revive the issue by way of a fresh judicial review application.  This would be a classic case of abuse of process.

40.  When Mr Dykes argued the case before this court, he focused on the public election point based on Article 21 as mentioned above. This was perhaps his only option because, as far as I can see in the light of the above discussion on the effect of the DCO, the other matters set out in the Form 86 do not give rise to any viable challenge and as such do not take the Applicant’s case further.

41.  Should the Article 21 challenge be made in HCAL 33?  As discussed earlier, there was a challenge based on Article 21 to the Director’s approval of CCRC in HCAL 33 even though, like the Form 86 in the present case, it was not particularized.  The challenge remained a live one after the decision to drop the challenge against the refusal to amend the Schedules of the VREO in light of Lai Tak Shing.  The Article 21 challenge was only dropped as a result of the settlement with the Department of Justice in consideration of the undertaking of the Secretary regarding the review of the constitution of CCRC on disqualification.

42.  In other words, it was a conscious and deliberate choice made by the Applicant with the benefit of legal advice to abandon his case on Article 21 when he applied for the withdrawal of HCAL 33.  He must have accepted the legitimacy of CCRC in the context of Article 21 but for the disqualification rule.  Otherwise, the undertaking of the Secretary could not adequately address his complaint and he should have proceeded with HCAL 33.

43.  Having made such a choice, is there any reason why he should be allowed to revive the challenge based on Article 21?  Mr Dykes referred to the Applicant’s actions after the withdrawal of HCAL 33 in lobbying members of the Legislative Council to amend the schedules of VREO and the developments within the Council. It is said that some members of the Legislative Council were sympathetic to the stance of the Applicant.  But the fact remains that the schedules have not been amended to include Cheung Chau in the application of the VREO.  In any event, I do not regard these subsequent developments as giving rise to a good reason why the Applicant should be permitted to revive litigation based on Article 21.

44.  As observed by Ma CJHC in Lily Chiang, it is necessary to have regard to the public interest involved.  In the context of the Applicant’s challenge in the present case, I have explained why in substance it is a challenge to the CCRC election though it is framed as a challenge to the issue of the Notice under the DCO.  I have also concluded that the Article 21 challenge could have been brought in HCAL 33 and it was actually made in HCAL 33 though withdrawn by the Applicant shortly before the substantive hearing.  Public interest in good administration requires constitutional challenge to electoral system to be pursued with due diligence.  Repeated challenges at the whim of an applicant would present undue disruptions to the conduct of politics in Hong Kong.

45.  At the same time, I also take account of the public interest in ensuring the legality of the membership of the chairman of CCRC in the Island District Council.  I have therefore examined further the merits of the challenge under Article 21.  I must say I do not think the argument, focusing now on the three alleged deficiencies of the election for CCRC as particularized by Mr Dykes, has any merit.  Article 21 does not prescribe that all election of public office has to be governed by the same kind of statutory regime with provisions for appeal against decision on eligibility and election petition.  The CCRC election was organized and monitored closely by public officials with equal access to all the residents in Cheung Chau.  It was openly conducted and there is no complaint by the Applicant with regard to its fairness and electorate.  As set out in the evidence of the Respondent, there are procedures dealing with challenges, see paras 15 and 21 of the Affirmation of Danny Lau.  There is no reason why it should not be regarded as a proper public election.  Even though there is no legislative underpinning for the election, it is governed by the constitution of the CCRC which has been approved by a public official.  It may be that there are still rooms for improvement.  However, it does not mean that the existing system is not Article 21 compliant.  Any challenges regarding eligibility or other aspects of the election can still be determined by court with reference to the Constitution of the CCRC and Article 21 either by way of judicial review or other proceedings.

46.  An important consideration is that any challenge to the last CCRC election was, when the present judicial review was issued, out of time.  The election was held on 14 November 2011.  Results were announced on the same date.  There was no challenge by the Applicant to such results.  In respect of the composition of the Island District Council, the chairman of the CCRC takes office as an ex‑officio member instead of being an elected member.  As analysed above, it is not open to the Applicant to challenge the Notice within the statutory scheme of DCO.

47.  In those circumstances, I hold that the Applicant should have canvassed his challenge under Article 21 in HCAL 33 and he should not be allowed to revive such challenge in the present proceedings.  Having reached this conclusion, I do not deem it necessary to deal with the submissions on non-disclosure.

48.  I believe I have addressed the arguability of the Applicant’s grounds.  By way of recap, by reference to the four grounds summarized at para 105 of the Form 86,

(a) Ground 97.1: not arguable in the light of the statutory scheme of DCO, in particular, the definition for rural committee in s 2;

(b) Ground 97.2: not arguable because the Applicant is bound by the decision of Chu J on applicability of VREO and the above discussion on public election and Article 21;

(c) Ground 97.3: not pursued by Mr Dykes at the hearing. In any event, no question of Article 40 being involved as there is no lawful traditional rights and interests in having VREO election which was only introduced after the Court of Final Appeal’s decision in Chan Wah;

(d) Ground 97.4: not arguable for the same reasons with regard to Ground 97.2.

49.  Therefore the present application for judicial review is an abuse of process and I will set aside the ex parte leave granted on 11 July 2011.  I also order the Applicant to pay the costs of the Respondent, such costs to be taxed if not agreed.