陳祺豐 v. 林鄭月娥女士 (香港特別行政區行政長官) AND ANOTHER

HCAL 1758/2019

[2019] HKCFI 1683

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1758 OF 2019

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D E C I S I O N

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1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge:

(1)  the powers of the Chief Justice to appoint –

(a)  Deputy Judges of the Court of First Instance under Section 10 of the High Court Ordinance (“Cap 4”);

(b)  Temporary Registrar under Section 37AB of Cap 4;

(c)  Temporary Senior Deputy Registrars under Section 37AC of Cap 4;

(d)  Temporary Deputy Registrars under Section 37A of Cap 4;

(e)  Temporary Assistant Registrars under Section 37B of Cap 4; and

(f)  Deputy District Judges under Section 7 of the District Ordinance, Cap 336 (“Cap 336”) (hereafter collectively referred to as “Temporary JJOs”),

on the ground of inconsistency with Articles 48(6) and (7) and 88 of the Basic Law (“BL 48(6)”, “BL 48(7)” and “BL 88” respectively);

(2)  the related failure of the Chief Executive to carry out her constitutional power or duty in relation to the appointment of judges; and

(3)  the refusal of the Judiciary to disclose to the Applicant the following information:

(a) the date on which Chief Justice Ma first took his Judicial Oath and the name of the person who administered the oath on that occasion; and

(b) the date on which Master Chow first took her Judicial Oath and the name of the person who administered the oath on that occasion.

THE LEGALITY OF THE CHIEF JUSTICE’S POWERS OF APPOINTMENT

2.  BL 48 states, inter alia, as follow:

“The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:

(6) To appoint or remove judges of the courts at all levels in accordance with legal procedures;

(7) To appoint or remove holders of public office in accordance with legal procedures”.

3.  BL 88 states as follows:

“Judges of the courts of the Hong Kong Special Administrative Region shall be appointed by the Chief Executive on the recommendation of an independent commission composed of local judges, persons from the legal profession and eminent persons from other sectors.”

It is not in dispute that the “independent commission” referred to in BL 88 is a reference to the Judicial Officers Recommendation Commission (“JORC”) established under Section 3 of the Judicial Officers Recommendation Commission Ordinance (“Cap 92”).

4.  The question which arises for determination is whether Temporary JJOs should be regarded as “judges” within the meaning of BL 48(6) and BL 88.  The answer to this question depends on the true meaning of the word “judges” in these two articles of the Basic Law.  In my view, the answer can be found upon a consideration of the relationship between BL 48(6) and BL 88 as well as the scope of JORC’s functions under Cap 92.

5.  By virtue of BL 88, the power of the Chief Executive under BL 48(6) to appoint “judges” is subject to the recommendation of JORC.  Under Section 6(a) of Cap 92, JORC shall advise or make recommendations to the Chief Executive regarding “the filling of vacancies in judicial offices”.  The expression “judicial offices” is defined to mean the offices as specified in Schedule 1 to Cap 92, namely:

Chief Justice

Judge of the Court of Final Appeal

Chief Judge of the High Court

Justice of Appeal

Judge of the Court of First Instance

Recorder of the Court of First Instance

President, Competition Tribunal

Deputy President, Competition Tribunal

Member, Competition Tribunal

Chief District Judge

Principal Family Court Judge

District Judge

Coroner

Chief Magistrate

Principal Magistrate

Magistrate

Special Magistrate

President, Lands Tribunal

Presiding Officer, Lands Tribunal

Member of the Lands Tribunal appointed under section 4(1)(c) of the Lands Tribunal Ordinance (Cap. 17)

Principal Presiding Officer, Labour Tribunal

Presiding Officer, Labour Tribunal

Principal Adjudicator, Small Claims Tribunal

Adjudicator, Small Claims Tribunal

Registrar of the Court of Final Appeal

Registrar of the High Court

Senior Deputy Registrar, High Court

Deputy Registrar, High Court

Assistant Registrar, High Court

Registrar of the Competition Tribunal

Senior Deputy Registrar, Competition Tribunal

Deputy Registrar, Competition Tribunal

Registrar of the District Court

Deputy Registrar, District Court

Assistant Registrar, District Court

6.  It is clear that the scope of JORG’s functions to advise or make recommendations to the Chief Executive regarding the filling of vacancies in judicial offices does not include the appointment of Temporary JJOs.  This fact strongly supports the view that Temporary JJOs should not be regarded as “judges” within the meaning of BL 48(6) and BL 88.

7.  That this is the correct view is further supported by the following considerations.  First, the appointment of a Temporary JJO is normally non-permanent and for a fixed term only.  Having regard to the temporary nature of the appointment, it is hardly likely that the draftsman of the Basic Law intends that such appointment has to be made by the Chief Executive upon the recommendation of JORC.

8.  Second, the powers of the Chief Justice to appoint Deputy Judges of the Court of First Instance, Temporary Deputy Registrars, Temporary Assistant Registrars and Deputy District Judges already existed prior to 1 July 1997.  Having regard to the theme of continuity of the Basic Law[1], the Chief Justice should continue to have the same powers to make those appointments after 1 July 1997.

9.  There are two other matters raised by the Applicant which I should briefly deal with here.  First, the Applicant refers to the definition of the expression “judge” in Section 3 of the Interpretation and General Clauses Ordinance (“Cap 1”), namely –

“the Chief Justice, a judge of the Court of Final Appeal, the Chief Judge, a Justice of Appeal, a judge of the Court of First Instance, a recorder of the Court of First Instance and a deputy judge of the Court of First Instance.”

10.  The Applicant relies, in particular, on the fact a Deputy Judge of the Court of First Instance falls within the definition of “judge” in Section 3 of Cap 1.  However, Section 2(1) of Cap 1 makes it clear that the provisions thereof apply only to “this Ordinance and to any other Ordinance in force, whether such other Ordinance came or comes into operation before or after the commencement of this Ordinance, and to any instrument made or issued under or by virtue of any such Ordinance”.  The Basic Law is neither an Ordinance, nor an instrument made or issued under or by virtue of any Ordinance.  Hence, the definitions in Section 3 of Cap 1 have no direct application to the Basic Law.

11.  Second, the Applicant alleges that there are inconsistencies between:

(1)  the list of judicial offices in Schedule 1 to Cap 92; and

(2)  the list of judicial officers in Schedule 3 to the Oaths and Declarations Ordinance (“Cap 11”).

12.  The Applicant has, in my view, confused between the two lists, which serve different purposes:

(1)  The list of judicial offices in Schedule 1 to Cap 92 relates to those judicial officers whose appointments shall be made by the Chief Executive upon the recommendation of JORC.

(2)  On the other hand, Schedule 3 to Cap 11 contains two lists of judicial officers under Part I and Part II.  For those judicial officers listed under Part I, the Judicial Oaths shall be administered by the Chief Executive, while for those listed under Part II, the Judicial Oaths shall be administered by a Judge of the Court of First Instance, pursuant to Section 17 of Cap 11, which states as follows:

“Each of the judicial officers specified in Schedule 3 shall take the Judicial Oath, which shall be administered in the manner specified in that Schedule as soon as possible after his appointment.”

13.  In my view, BL 48(6) and BL 88 have no application to the appointment of Temporary JJOs, because they are not “judges” within the meaning of those articles.  If the appointment of Temporary JJOs falls outside BL 48(6), being a specific provision relating to “judges”, it is obvious that such appointment would also fall outside the general provision in BL 48(7) relating to “holders of public office”.

14.  In all, the powers of the Chief Justice to appoint Temporary JJOs are constitutionally valid.  There is also no question of the Chief Executive having failed to carry out her constitutional power or duty in relation to the appointment of judges.

DISCLOSURE OF INFORMATION RELATING TO THE JUDICIAL OATH TAKING OF CHIEF JUSTICE MA AND MASTER CHOW

15.  The Applicant made 2 Applications for Access to Information to the Judiciary Administrator on 22 October 2018 and 15 November 2018 respectively.  In those applications, the Applicant asked the Judiciary Administrator to provide, inter alia, the following information:

(1)  the date on which Chief Justice Ma first took his Judicial Oath and the name of the person who administered the oath on that occasion; and

(2)  the date on which Master Chow first took her Judicial Oath and the name of the person who administered the oath on that occasion.

16.  The Judiciary Administrator replied to the Applicant on 3 December 2018, informing him that Chief Justice Ma was first appointed as a Recorder of the Court of First Instance on 1 December 2000, and Master Chow was first appointed as a Temporary Deputy Registrar and Deputy District Judge on 28 October 2013 and 18 October 2017 respectively, and both had properly taken their respective Judicial Oaths in accordance with the requirements of BL 104 and Section 17 of Cap 11.  The Judiciary Administrator did not, however, inform the Applicant of the precise date on which Chief Justice Ma first took the Judicial Oath or the name of the person who administered the oath on that occasion.  Likewise, the Judiciary Administrator did not inform the Applicant of the precise date on which Master Chow first took the Judicial Oath or the name of the person who administered the oath on that occasion.

17.  Subsequently, the Applicant sent 3 letters all dated 27 May 2019 to Chief Justice Ma, the Judiciary Administrator and Master Chow seeking, effectively, the same information.  The Applicant apparently also raised the same question before the Master Chow on 24 May 2019 when he appeared before her as a litigant in person in HCA 2782/2015 and 142/2016. The Applicant says that Chief Justice Ma, the Judiciary Administrator and Master Chow have all refused to provide the information sought.

18.  The Applicant has not, however, pointed to any legal basis to support his contention that he is entitled to the information sought, or that the Judiciary is under any legal duty to provide the information.  The fact that the Applicant is a party to some legal proceedings currently pending before the Court of First Instance does not give him to right to demand the said information from the Judiciary.

19.  The Applicant’s complaint, in so far as the oath taking of Chief Justice Ma is concerned, appears to be that because he took the Judicial Oath before the former Chief Executive on 3 September 2010 on the occasion of his assumption of office as the Chief Justice of the Court of Final Appeal of the HKSAR when it was, strictly speaking, unnecessary for him to do so if he had already taken the Judicial Oath at the time of his appointment as a Recorder of the Court of First Instance in 2000 (by virtue of Section 22(1) of Cap 11), Chief Justice Ma might not have taken the Judicial Oath during the period of time between 1 December 2000 and 3 September 2010 while acting as a judge.  This allegation is completely speculative.  It is, in my view, hardly surprising that Chief Justice Ma would publicly take the Judicial Oath again before the former Chief Executive on 3 September 2010 on that special occasion.

20.  In so far as the oath taking of Master Chow is concerned, the Applicant has likewise provided no basis for any allegation that she had not taken her Judicial Oath when she first assumed judicial office.

21.  On the materials before the court, there is simply no basis disclosed by the Applicant to challenge the validity of the appointment of Chief Justice Ma or that of Master Chow, or the oath taking of Chief Justice Ma or Master Chow.  Essentially, the Applicant is making use of the current application for judicial review as a means to fish for information with the hope of finding something useful to complain.  This is an improper use of the judicial review procedure.  The Applicant has also failed to show that the refusal of the Judiciary to provide the information sought is a decision which is amendable to judicial review.  The court is not satisfied that the Applicant’s challenge to the Judiciary’s refusal to provide the information sought by him by way of judicial review is reasonably arguable, or has a realistic prospect of success.

22.  In any event, it is clear that the present application for leave to apply for judicial review, in so far as it relates to the Judiciary’s refusal to provide the information sought, is made out of time, ie more than 3 months from the date when grounds for the application first arose as required by Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.  The Applicant has given no explanation for the delay.  There is no good reason for extending the period within which the application shall be made.  The court is not prepared to exercise its discretion to extend the time for the Applicant to make the present application.

DISPOSITION

23.  The intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.  In addition, in so far as the application relates to the Judiciary’s refusal to provide information relating to the oath taking of Chief Justice Ma and Master Chow, the application is out of time and the court does not grant any extension of time to the Applicant to make the application.  The present application for leave to apply for judicial review is accordingly dismissed.