SWANK INTERNATIONAL MANUFACTURING CO LTD v. LAU TAI MING EDDY

HCAL 130/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITIUTIONAL AND ADMINISTRATIVE LAW LIST NO. 130 OF 2004

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J U D G M E N T

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1.  I have fully borne in mind the threshold test applicable in an application for leave to apply for judicial review. 

2.  According to the form 86A, there are two decisions under challenge, namely the so-called 2^nd set of reasons for decision dated 18 August 2004 given by a presiding officer of the Labour Tribunal, and the judgment of the Honourable Mr Justice Chung, a judge of the Court of First Instance of the High Court, given on 3 September 2004 in an application for leave to appeal from the decision of the presiding officer.  I will first deal with the intended challenge against the decision of Chung J.

3.  In my judgment, the intended application for judicial review against the decision of Chung J is wholly misconceived.  The decision in question was given by his Lordship in an application for leave to appeal from a decision of the Labour Tribunal pursuant to the appeal provisions set out in the Labour Tribunal Ordinance (Cap 25).  His Lordship was there exercising the jurisdiction of the High Court given under the Labour Tribunal Ordinance in relation to intended appeals from decisions of the Labour Tribunal; his Lordship was performing the work of a High Court judge as such, and the decision of his Lordship was made in that context.

4.  It is trite law that the decision of a superior court, like the Court of First Instance of the High Court, is not amenable to judicial review (Re Racal Communications Ltd [1981] AC 374, 384 D-G). 

5.  Of course, I should mention (even though counsel has not so submitted) that if the decision in question was made by the High Court judge in the exercise of some other power, whether judicial or administrative, apart from his powers or jurisdiction as judge of the High Court, that decision might be amenable to review.  The observations of Liu J (as he then was) in Bui Thi Chin v Director of Legal Aid [1994] 1 HKC 441, which concerned the hearing by a judge of the former High Court of a statutory appeal against the refusal of legal aid by the Director of Legal Aid under section 26 of the Legal Aid Ordinance (Cap. 91) are illuminating.  Liu J pointed out in that case that a judge hearing a legal aid appeal was not exercising the usual jurisdiction of the High Court; he was merely exercising an essentially administrative though quasi-judicial power in hearing the legal aid appeal. 

6.  However, I have no doubt that in the present case, Chung J was exercising the jurisdiction of the High Court as such in relation to the application for leave to appeal to this court, when he made the decision in question.

7.  In those circumstances, regardless of the substantive merit of the proposed challenge, in my view, there is absolutely no chance of success in the proposed judicial review.  In other words, in relation to the decision of Chung J, the proposed judicial review must fail and there is no question of my granting leave in favour of the Applicant.

8.  That leaves the so-called 2^nd set of reasons of the presiding officer.  There are quite a number of reasons that may be given to reject the application for leave to challenge the so-called 2^nd set of reasons.  I need give only one or two of them.  In my judgment, given my view that the decision of Chung J is not amenable to challenge by judicial review and given that his decision is final (see section 32(3) of the Labour Tribunal Ordinance), the proposed challenge in relation to the so-called 2^nd set of reasons of the presiding officer is wholly academic even if, for the sake of argument, one were to assume that there is merit in the proposed challenge.

9.  Assume for the sake of argument that leave to apply for judicial review is granted, that would not alter the result of the labour dispute between the parties at all because Chung J has already refused leave to appeal from the decision of the presiding officer on all the grounds raised by the Applicant (employer), with the exception of one ground (which does not turn on the alleged discrepancies between the “1^st set of reasons for decision” and the “2^nd set of reasons for decision”).  In those circumstances, there is no point whatsoever, even if substantive merit of the proposed challenge is assumed, in granting leave to apply for judicial review against the so-called 2^nd set of reasons.

10.  For the sake of completeness (even though again counsel has not so argued), I have also considered the possibility that the decision of Chung J is not final, bearing in mind the actual wording of section 32(3) and the fact that his Lordship did give leave to appeal on one ground.  If the decision of Chung J was somehow not final, it must necessarily follow that an appeal could be mounted from his decision to the Court of Appeal.  In other words, in that scenario, there would be an alternative remedy available to the Applicant.  In those circumstances, I can see no reason why judicial review should be resorted to.

11.  In other words, from whichever angle one approaches the matter, there is no question of this Court granting leave to apply for judicial review against the so-called 2^nd set of reasons.  All this is quite sufficient to dispose of today’s application.

12.  But before parting with this case, I should emphasize that I should not be taken to have considered that there is any substantive merit in the proposed judicial review application. 

13.  For my part, I fail to see any material discrepancies between the so-called 2^nd set of reasons for decision and the so-called 1^st set of reasons.  But as explained above, I need not deal with the substantive merit of the proposed application for judicial review.

14.  In short, I refuse leave to apply for judicial review. 

[Submissions on costs]

15.  Having been informed by Ms Winnie Ho, government counsel, on behalf of the Secretary for Justice that she is not asking for costs of the application, I make no order as to costs.