RIGHT TO INHERENT DIGNITY MOVEMENT ASSOCIATION AND ANOTHER v. HKSAR GOVERNMENT AND ANOTHER

HCAL 74/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 74 OF 2008

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D E C I S I O N

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1.  The Applicants applied for leave to seek judicial review of the constitutionality of Order 53 Rule 3 of the Rules of the High Court.  In the Form 86A filed by the Applicants, the substantive relief sought are,

“A declaration that an applicant should be entitled as of right to seek judicial review as an effective remedy and necessary procedural safeguard to violation or threatened violation of his constitutional and human rights.  And to this extent, Order 53 Rule 3 of the Rules of the High Court is against constitutionality and should be read in or down.

Further or in the alternative, a declaration that –

a.      Even if an open court hearing for application to seek leave to judicial review would be granted to an applicant under Order 53 rule 3 of the Rules of the High Court, the hearing so granted cannot be and is not a determination of the applicant’s rights and obligations in pursuant to and for the purposes of Article 14 of the ICCPR.

b.       An applicant is entitled to make repeated applications for seeking leave to judicial review until his rights and obligations is determined in pursuant to and for the purposes of Article 14 of the ICCPR.

A declaration that Order 53 Rule 3 of the Rules of the High Court is incompatible with the obligations of the Court or Tribunal under Article 6 of the HKBORO to give remedies and procedural safeguard in an action for breach of the HKBORO.”

2.  The test that this court should apply in deciding whether leave should be granted is laid down by the Court of Final Appeal in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.  The court must be satisfied that a reasonably arguable case for relief has been shown by the Applicants before leave is granted.

3.  In the light of the arguments of Mr Ma, the 2^nd Applicant, it is also useful to refer to the purpose of the leave requirement as identified by the Chief Justice at para. 14 of Po Fun Chan,

“Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges.  Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims.  Nor should third parties affected by their decisions face such uncertainty.”

4.  In other words, the requirement of leave strikes a fair balance in terms of setting a necessary and proportionate condition on an applicant’s access to court by way of judicial review.

5.  At the outset of the hearing on 13 August 2008, this court enquired with Mr Ma regarding the status of the 1^st Applicant.  It is not an incorporated body and therefore has no legal personality.  As such, I have reservations whether it can be a party to legal proceedings.  This is quite a separate question from whether members of the 1^st Applicant could have sufficient interest in the matter to seek judicial review.  It is a question of procedure and before the court can be expected to deal with an application, it must ascertain who are really the parties to the application as it might have bearing on whom the judgment will bind and the potential liabilities for costs[1].  Mr Ma was unable to assist the court on these issues.

6.  The hearing proceeded on the basis that Mr Ma represented himself as the 2^nd Applicant.  Having regard to my conclusion on the substantive merits of the leave application, it is not necessary for me to say anything more on the status of the 1^st Applicant.

7.  Mr Ma made wide ranging submissions, some of them not within the scope of the grounds set out in the Form 86A.  The application is also irregular in that the Applicants did not file any affidavit or affirmation in accordance with Order 53 Rule 3(2)(b).  As I understand, the attack by the Applicants on the constitutionality of Order 53 Rule 3 is focused on the requirement of leave and it is not part of the Applicants’ case that the requirement to file affidavit or affirmation is unconstitutional.  Thus, there is no reason why they should be excused from complying with that requirement.

8.  Thus, the matter has to be considered on the basis that the Applicants do not rely on any facts to advance the present application.

9.  Mr Ma contended that Order 53 Rule 3 is unconstitutional because it violates his right under Article 35 of the Basic Law reading together with Article 2(2) and (3) of the ICCPR.  He said the public law challenge regime provided for under Order 53 does not provide effective judicial remedy for a citizen who wishes to challenge the constitutionality of a piece of legislation because (1) the remedy of judicial review requires leave; (2) there is a limitation on the timing for lodging an application; and (3) the relief is discretionary.

10.  I do not accept this as an arguable challenge.  Article 35 guarantees the right of a Hong Kong resident to judicial remedies and the right to institute legal proceedings in courts against the acts of the executive authorities and their personnel.  Judicial review is not the only way by which a Hong Kong resident can sue in respect of the acts of the executive authorities and their personnel.  If such an act constitutes private wrongs and causes damages to a resident, he can start an ordinary civil action in court.

11.  Although Mr Ma mainly made reference to Order 53 Rule 3, the leave requirement is laid down by primary legislation, see Section 27K(3) of the High Court Ordinance.  Thus, in substance, Mr Ma is challenging Section 27K(3) instead of the exercise of the rules making power conferred on the Rules Committee. 

12.  In respect of a challenge to the constitutionality of a piece of legislation, I do not think it comes within the second part of Article 35.  Under Article 17 of the Basic Law, the legislative power for the Hong Kong Special administrative Region is exercised by the legislature rather than the executive.  Hence, the exercise of the legislative power per se is not an act of the executive authorities and their personnel.

13.  Further, the constitutionality of a piece of legislation can be raised as an in issue in any court proceedings, whether criminal or civil, and the court will have to adjudicate on it.

14.  However, Mr Ma submitted that if a constitutional challenge to a piece of legislation is advanced as an attack on its own, it has to be undertaken by way of judicial review.  He cited Leung v Secretary for Justice [2006] 4 HKLRD 211 as authority for that proposition.

15.  Whilst that is generally correct, one should note what Ma CJHC said at para. 21 of the judgment in the Leung case with regard to why judicial review should be pursued.  The Chief Judge said,

“The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that mattes involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.”

16.  Further, at para. 28, the Chief Judge stressed the need to show exceptional circumstances before the court will consider a constitutional challenge without any actual decision being impugned.  Two reasons were identified at para. 28(7) for such approach: (1) the inherent danger in deciding important principles without the benefit of a full set of facts; (2) the problems that might cause to the overall administration of justice if the courts were regularly engaged in entertaining cases which were not real but only hypothetical.  The Chief Judge also concluded that the requirement is one of the discretionary considerations involved in the judicial process of granting leave.

17.  To test the validity of Mr Ma’s argument, one must examine the constitutional right he relied upon.  I have already explained why the second part of Article 35 is not relevant here.  As regards the first part of the Article, viz. the right to judicial remedies, it is the same as the right of access to court.  I do not think one can seriously argue because certain judicial remedies are discretionary in nature, the right of access is impaired.  Under our legal system, equitable remedies are all discretionary.  The grant of declaration is also discretionary.  Likewise, the remedies of certiorari and mandamus that could be granted in judicial review.  But the discretion has to be exercised judicially in accordance with established principles.  The principles are all developed over the years based on cogent and sound judicial reasoning and they are indeed part of our common law.

18.  Thus although Mr Ma is correct in saying that an application for leave to seek judicial review involves discretionary consideration on the part of the court, that alone cannot be a valid reason for saying that there is no effective judicial remedies.

19.  As regards the leave requirement, given the purpose of the same as explained by the Chief Justice in Po Fun Chan, it is a necessary and proportionate measure.  As held by the Court of Final Appeal in Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1, the constitutional right of access to court is not an absolute right and the court should and could impose proportionate measures to prevent the abuse of its process.  Like a Restricted Proceedings Order, the leave requirement is a means to prevent the court’s process from being abused.  To permit unarguable judicial review application to be pursued with the attending uncertainties occasioned to the decision of a public authority is an abuse of the judicial process.  Thus, the leave requirement is not unconstitutional.

20.  Moreover, the leave application will be considered by the court.  Hence, there is no question of an applicant being denied with access to the court.

21.  With regard to the time limit for commencing judicial review, it is necessary in order to advance the public interest in good administration, see Lo Siu Lan v Hong Kong Housing Authority CACV 378 of 2004, 17 Dec 2004.  Further, as illustrated by the Leung case, the court can extend time for a meritorious application to be made.  Reasonable time limit for pursuing litigation has long been recognized as proportionate measure to deal with a legitimate aim even though it may have the effect of barring a claim, see Stubbings v United Kingdom (1996) 23 EHRR 213.   

22.  In respect of Mr Ma’s reference to Article 2(2) and (3) of the ICCPR, I do not see how such articles take his case further given my conclusion that the Order 53 regime does not infringe any right of the Applicants in terms of access to court.

23.  Mr Ma also relied on his rights under Articles 14 and 15 under the ICCPR though he contended at the same time that a decision on whether leave is granted is not a determination of his rights and obligation for the purpose of Article 14.  He made five points to support his claim that the hearing of the leave application does not give him a fair hearing,

(a)     Since the hearing is usually ex parte, the issues are not well defined by joinder of issues between two adversarial parties, an applicant is ill-prepared to deal with the points that may arise at such hearing;

(b)    Since an applicant has to face with issues raised by the court at the hearing, he may not have sufficient time to prepare;

(c)     The arguability test may mislead an applicant as regards the comprehensiveness of the argument he must advance to support a leave application;

(d)    An applicant has no idea as regards the evidence that he needs to file to support his application and he should have an opportunity to cross-examine the other side;

(e)     There is a structural bias in that the judge had to descend into the arena to debate with an applicant on the arguability of his application. 

24.  Putting aside the inherent inconsistency of Mr Ma’s position[2], I do not see how these matters, whether taken individually or together, could lead to a conclusion that an applicant’s right to a fair and impartial hearing will be infringed.

25.  Under Practice Direction SL 3 Para. 1.3, if an applicant for leave to seek judicial review requested a hearing, the judge shall not refuse leave without a hearing.  Even though the hearing can be in chambers, it will still be open to the public.  Thus, there is no question about an applicant’s right to a public hearing being infringed.

26.  Further, the applicant will also have the right to appeal against the determination of the judge.  The hearing at the Court of Appeal will be conducted in open court.        

27.  The five points made by Mr Ma are based on his misconceived notion regarding the requirements of a leave application and the stage of readiness an applicant should achieve before an application is filed.  As stated by the Chief Justice in Po Fun Chan, the issue before the court at the leave stage is whether the case of an applicant is reasonably arguable.  That is to be considered without regard to the evidence to be filed by the putative respondent.  The court is to examine the arguments of an applicant to see if they carry any real prospect of success.  Order 53 and Practice Direction SL 3 set out clearly what an applicant should include in the Form 86A and the evidence to be filed.

28.  It is the duty of an applicant to set out in the Form 86A all the grounds he wishes to rely upon.  In the present context, the Applicants should set out all the grounds to support their assertion that the requirements in Order 53 Rule 3 are unconstitutional.  The judge considering the leave application cannot proceed on any other basis.  It is not for the judge to speculate whether the Applicants could have other unspecified grounds which they might wish to rely upon.

29.  Likewise, Order 53 Rule 3 and Practice Direction SL3 para. 1.7.2 sets out clearly that an applicant needs to file evidence on all the facts he relies upon at the same time as the filing of his Application for leave.  Mr Ma seems to have overlooked this requirement in proposing to file further illustrative evidence at a later stage in his written submissions.

30.  Mr Ma further failed to understand that the burden is on an applicant to make out an arguable challenge before a putative respondent is required to file any evidence to refute the attack, including evidence pertaining to the relevant social need and public interests and evidence on proportionality.  He wrongly assumed that once a bare allegation of the unconstitutionality of a piece of legislation is advanced, it is for a putative respondent to justify the constitutionality of the law in issue.  To reach that position, an applicant has to show an arguable challenge.  If that threshold cannot be reached, there is simply no viable challenge.  

31.  Hence, Mr Ma’s example that an applicant could have included three grounds only in the papers filed whilst he may in fact have many more grounds which he may not see the need to include at the leave stage is not helpful.  Such an applicant only has himself to blame if the judge refuses leave based on the grounds he chose to articulate.

32.  An applicant should be fully satisfied with the cogency of his arguments before he advanced the same in his Form 86A.  That includes cogency in terms of law and facts.  Hence, by the time of the hearing of the leave application, he should be able to deal with any questions the court might have regarding some of the propositions advanced in his own papers.  An ex parte hearing does not mean that a judge is acting as a rubber stamp.  An applicant cannot expect a judge to take every statement in the Form 86A on its face value.  Further, it is always open to a judge to call for an inter partes hearing.

33.  If there are flaws in an applicant’s case, the earlier they are spotted the better.  If an applicant can persuade the court that he has a reasonably arguable case despite such flaws, leave will be granted by the court.  However, if there are defects in the applicant’s case that cannot be cured, it is difficult to see how an applicant could have any right to persist with the proceedings.

34.  If an applicant does not anticipate a point raised by the court, in most cases it means that such applicant has not prepared his case as thorough as he should have.  If he has a proper basis for suggesting that he might be able to provide a good answer to the question raised if time is given, he could ask for an adjournment.  Depending on the court’s assessment of the merits and other relevant factors, the court may grant such adjournment.  On the other hand, if an applicant could not provide some basis for suggesting he might have a good answer if time is given, the court may refuse leave there and then.  In either case, the applicant cannot complain about the fairness of the hearing simply because of the inadequate preparation on his part.

35.  I fail to see how the arguability test could have any misleading effect on an applicant.  The test is clear and judges and legal practitioners are familiar with it.  It has been applied satisfactorily in different context in our legal system and Mr Ma has not advanced any cogent reason to support his proposition that the test is arbitrary and uncertain.  Nor do I understand Mr Ma’s submissions on the evidence to be filed.  Since the court is only concerned with the arguability of the applicant’s case without any evidence having been filed by the putative respondent, there is no need to have any cross-examination.

36.  Once it is accepted that the leave requirement is a necessary and proportionate measure to prevent abuse of the court’s process by way of judicial review, there is no basis for suggesting that a judge examining a leave application carefully and more thoroughly than an applicant would give rise to a reasonable apprehension of bias on the part of an informed and fair minded observer.  To label a judge’s performance of his duty in such context as “harbouring initial prejudice” is not helpful and shows a remarkable lack of proper understanding as regards the role a judge in modern litigation setting on the part of Mr Ma.  The contention of structural bias is wholly without merit.

37.  There is simply no arguable ground in the points put forward by Mr Ma to suggest his right under Article 14 has been infringed.

38.  Article 15 of the ICCPR deals with the right of person charged with a criminal offence.  I simply fail to understand how it has any relevance in the present context.  As mentioned, a defendant in a criminal trial is at liberty to raise any defence based on the unconstitutionality of a piece of legislation and leave is not required under Order 53 Rule 3.

39.  Lastly, Mr Ma made a submission on the quality of the reasons given by the court in leave application.  The usual practice, as I understand is as follows.  For obvious reason, there is no need for the court to give reasons if leave is given.  It is difficult to see how an applicant can complain that.  If leave is not given, the court does give reasons for such refusal.  Depending on the nature of the application and the grounds advanced in support of the application, the reasons can be brief or it can be lengthy.  But in all cases, an applicant is told why the court considers the application to be unarguable.

40.  If an applicant considers inadequate reasons were given or if he considers the judge was wrong in the reasons, he can lodge an appeal.  On appeal, the Court of Appeal will give a reasoned judgment.

41.  Thus, there is no basis for suggesting that an applicant cannot have a fair hearing on account of lack of reasons.

42.  For these reasons, I do not consider the application to be arguable and leave is therefore refused.  I also make a costs order nisi pursuant to Order 42 Rule 5B(6) that the 2^nd Applicant shall pay the costs of
the 1^st Respondent for the hearing on 13 August 2008, such costs to be taxed if not agreed.

[1] If a proceedings commenced by an unincorporated association is to be regarded as proceedings commenced by all the members of the association at that time, all of them could be personally liable for costs.  On the other hand, if the proceedings so commenced are not so regarded, it is difficult to see who should be regarded as the parties.  In any event, this mode of naming of a party is not authorized by Order 81 and my tentative view is that it is to say the least an irregularity if not a nullity. 

[2] Because he contends that the determination of leave is not a determination of rights and obligations, the right to a fair and open hearing under Article 14 of the ICCPR is not engaged.  Yet he advanced arguments based on the right of fair and open hearing.