LAM KING MAN v. 東區裁判法院裁判官高麗文

HCAL 1574/2024

[2024] HKCFI 2589

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1574 OF 2024

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D E C I S I O N

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A. Introduction

1.  By Form 86 dated 11 September 2024, the Applicant seeks leave to apply for judicial review so as to challenge a decision made by a magistrate sitting at the Eastern Magistracy in proceedings numbered ESCC 1484/2023.  As that number identifies, that is a criminal case (to which it seems that the Applicant was a defendant).

2.  Though the Applicant identifies the Putative Respondent to be Ko Lai Man, there is no such magistrate by that name to be found on the Judiciary’s webpage.  There is, though, a Miss Wat Lai Man. However, the apparent misdescription is of no import, where the Applicant’s application is fundamentally misconceived.

3.  As the Applicant himself identifies, he is dissatisfied with the way the magistrate dealt with the case during the trial of it.  It appears that the Applicant has exercised his right of appeal to the High Court in HCMA 17/2024 (which will apparently be heard on 27 September 2024). This shows the Applicant has, and he has pursued, an available alternative remedy.  If the Applicant’s position is that the magistrate conducted the trial unfairly and/or in a way which was unconstitutional, those arguments can be put forward in the appeal.  The fact that the Magistrate’s decision is subject to an appeal identifies that it is not amenable to judicial review, or that an application for judicial review is inappropriate.  Both matters show that the current application must fail.

4.  Further, where HCMA 17/2024 was issued on 8 January 2024, that must mean that the underlying decision which the Applicant now seeks to challenge in these proceedings was made some time before that date.  It is trite that, under the applicable Rules of the High Court in Order 53, an application for leave to apply for judicial review must be made as soon as possible and in any event within three months (unless good reason for an extension of time is shown).  These proceedings were started well out of time. All that the Applicant states in his affirmation about the timing of this application is that he has only applied for judicial review in a civil action after his applications for legal aid to pursue his appeal have been rejected. That does not demonstrate good reason for any extension of time.

5.  Lastly, the Applicant identifies that he was refused legal aid by the Director of Legal Aid and again by a High Court judge who considered his magistrate’s appeal to lack merit.  This Court exercising its judicial review jurisdiction does not act as a form of appellate court from decisions of other High Court judges.

B.  Result

6.  The Applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

7.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed, with no order as to costs.