TSUI KIN KWOK JOHNNIE v. COMMISSIONER OF POLICE

HCAL 50/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 50 OF 2009

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BETWEEN

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(Heard Together)

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REASONS FOR DECISION

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1.  On 22 January 2010, the Court ordered that the originating summons issued on 29 December 2009 in HCAL 143/2009 be struck out and that action be dismissed. The Court also dismissed two essentially identical applications of Tsui Kin Kwok Johnnie, the plaintiff in HCAL 143/2009 and applicant in HCAL 50/2009, made in the two sets of proceedings, for the staying of HCAL 50/2009 in favour of HCAL 143/2009. The Court further dismissed an application for directions in HCAL 143/2009 also taken out by Mr Tsui. In relation to all applications and to HCAL 143/2009, the Court awarded the costs to the Commissioner of Police, with a certificate for two counsel.

2.  These are the reasons for the Court’s decision.

3.  Mr Tsui used to be a police officer. He was found guilty in disciplinary proceedings instituted against him in 1997 and 1998, and as a result was compulsorily retired.

4.  Relying on the Court of Final Appeal’s decision in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 (26 March 2009), Mr Tsui sought leave to apply for judicial review against the relevant decisions in the disciplinary proceedings, claiming that his right to a right hearing in those proceedings had been infringed, in contravention of article 10 of the Hong Kong Bill of Rights. The proceedings (HCAL 50/2009) were commenced on 11 May 2009.

5.  In those proceedings, Mr Tsui seeks, by way of substantive relief, an order of certiorari to quash the relevant convictions and sentences imposed against him in the disciplinary proceedings. He also seeks, alternatively, an order of mandamus to require the Commissioner of Police to review the relevant disciplinary decisions.

6.  Quite plainly, in relation to his proposed challenge against the convictions and sentences made in the disciplinary proceedings, Mr Tsui is out of time and requires an extension of time from the Court to make his challenge. A hearing has been fixed for 2 February 2010 to decide whether time should be extended.

7.  However, on 29 December 2009, Mr Tsui commenced a new action by originating summons (HCAL 143/2009). This new action concerned the same disciplinary proceedings, convictions and sentences that Mr Tsui had been complaining about in HCAL 50/2009. In this new action, Mr Tsui sought a declaration that in the relevant disciplinary proceedings, his right to a fair hearing guaranteed under article 10 of the Hong Kong Bill of Rights had been infringed and therefore they were unlawful; an order to quash the resulting convictions and sentences; a declaration that the requirement for leave to apply for judicial review and/or the prescribed limitation period of three months provided in Order 53, rules 3 and 4 of the Rules of the High Court (Cap 4A) is/or are inconsistent with the Hong Kong Bill of Rights Ordinance (Cap 383), and that therefore they shall not be applied in any action for breach of the Ordinance, or in other proceedings (including an application for judicial review) in which a violation or a threatened violation of the Bill of Rights is relevant; and a declaration that the prescribed time limit of three months is ultra vires the empowering provisions in section 21K(6) of the High Court Ordinance (Cap 4).

8.  By three summonses issued on 6 and 7 January 2010 in HCAL 50/2009 and HCAL 143/2009 respectively, Mr Tsui asked for the staying of HCAL 50/2009 (the judicial review proceedings), in favour of HCAL 143/2009 (the new action based on the Hong Kong Bill of Rights Ordinance), and sought directions for the further conduct of HCAL 143/2009.

9.  On 15 January 2010, the Commissioner of Police took out an application by summons to strike out the originating summons in HCAL 143/2009 and to dismiss the action therein on the ground that the proceedings were an abuse of the process of the court.

10.  In my view, HCAL 143/2009 was plainly an abuse of the process of the court. With disarming frankness, Mr Anthony Butt, counsel for Mr Tsui, admitted to the Court at the hearing that the whole purpose of commencing the new action was to circumvent the time requirement laid down in Order 53, rule 4, for applying for leave to apply for judicial review.

11.  The first item of relief sought in the originating summons in the new action was a declaration that the way the disciplinary proceedings in question had been conducted had infringed Mr Tsui’s right to a fair hearing guaranteed under article 10 of the Hong Kong Bill of Rights and they were therefore unlawful. Item (2) therefore sought an order to quash the resulting convictions and sentences. They were plainly public law matters that ought to be dealt with in judicial review proceedings, rather than in a private law action: O’Reilly v Mackman [1983] 2 AC 237. On the facts of the present case, there was simply no reason why those remedies should be pursued in a private law action. Indeed, Mr Tsui had taken the right step of commencing HCAL 50/2009 to seek leave to apply for judicial review to challenge the relevant convictions and sentences. It is true that he was outside the three month time limit for applying for leave and he had to ask for an extension of time from the Court, but that fact did not by itself provide any reason for not pursuing his remedies by means of judicial review.

12.  Moreover, having commenced HCAL 50/2009 to seek the public law remedies, it was quite wrong for him to commence a second action seeking the same or similar relief. That, by itself, was an additional reason for concluding that the new action constituted an abuse of the process of the court.

13.  Items (3) and (4) of the relief sought in the originating summons in HCAL 143/2009 sought to challenge the legality of the leave requirement and of the time limitation prescribed in Order 53, rules 3 and 4, in proceedings involving a breach of the Hong Kong Bill of Rights Ordinance. It was contended that those requirements were inconsistent with the general and unrestricted provisions in section 6(1) of the Ordinance:

“A Court or tribunal –

(a)  in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b)  in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant,

may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.”

14.  Mr Butt further relied on the following observations made by Sir Anthony Mason NPJ in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170, 208, in support of his contention about the width of section 6(1):

“111.  … The width of s.6(1) is not in doubt; it authorizes the Court to grant such remedy or relief, or make such order, in respect of such breach or violation as it has power to make or grant in the proceedings as it considers appropriate and just.  Section 6(1) is directed not only to the case of reading down a statute in order to avoid a breach or violation of the BOR [Bill of Rights] but also to invalidating a statutory provision when an interpretive remedy is not possible.  There is no relevant limit on this Court’s power under s.6(1) unless such a limit is to be found in the sub-section itself.

….

113.  Nonetheless, it seems to me that s.6(1) should be interpreted in accordance with its wide language as conferring power to strike down a non-infringing provision where to do so best conforms with the legislative intention.  To exercise the power in that way is not to thwart the will of the legislature but rather to respect its will and give effect to its intention by giving the legislation as effective an operation as it can be given consistently with the BOR.  Section 6(1) should be construed, in accordance with its terms, as conferring a power which will enable the Courts to resolve the tension which exists between the legislative will and the protection given by the BOR by striking down only that part of the statute that causes the violation or breach, even if it does not itself infringe the BOR, when to do so best gives effect to the legislative intention.”

15.  On the facts of the present case, if Mr Tsui wished to challenge the legality of the relevant provisions, he ought to do so by means of judicial review proceedings, as in, for example, Leung v Secretary for Justice [2006] 4 HKLRD 211. It was plainly an abuse of the process of the court for Mr Tsui to seek to do so by means of a private law action.

16.  The general observations made by Sir Anthony Mason NPJ in Koon Wing Yee had no application whatsoever to the present case. Certainly, depending on the facts, a point about the legality or constitutionality of a piece of legislation could arise in private law, disciplinary or criminal proceedings. In that event, the point could, of course, be raised and the legislation challenged in those proceedings. However, where, as here, a person considers that he has good reasons to challenge, of his own motion, the legality of a piece of legislation, the proper procedure for him to do so is to commence judicial review proceedings, rather than to seek a declaration in a private law action.

17.  For all those reasons, the Court made the orders described at the beginning of this judgment.