HUNG HAK SING v. THE SECRETARY FOR THE CIVIL SERVICE and Others

1997, No.AL46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

--------------------

--------------------

---------------------

D E C I S I O N

---------------------

1. I think it might be helpful if I were to give some more detailed intimation than might normally be necessary of what has thus far gone wrong with this case, in my judgment, and what is wrong with the application as presently formulated. I have decided to grant the applicant one more chance of putting his tackle in order and I do that because it seems to me that none of the errors thus far lies at his door. This is not to give any encouragement to this application, however. I shall turn later to the question of the costs thrown away.

2. I regret to have to say that the history of this application as presented contains a litany of errors.

3. In the application as originally presented in June 1997, there was sought by way of interim relief a stay of the order of dismissal and an injunction restraining the Governor from dismissing the applicant. Yet the applicant had already been dismissed.

4. In the application as originally presented, there was sought under the heading "interim relief" an oral hearing of the application for leave to apply for judicial review. That was not only, as I caused to be pointed out in subsequent correspondence, an application which was placed in an inappropriate and hidden part of the application for leave; but it was not phrased in the usual form, which is to seek a hearing only if the court were minded to refuse leave on paper.

5. It was then pointed out in a letter from the court to the solicitors acting for the applicant that the interim relief application was, in the circumstances, unclear, asking to know what it was precisely that was sought. Since an application for an oral hearing was sought, the judge also said that a date should be fixed for that hearing.

6. In August, the solicitors responded saying that the application for interim relief was withdrawn, and intimated that the application would proceed without it. But nothing was then heard until early February 1998 when the solicitors wrote saying that counsel had advised that there was no need for an oral hearing, and that the applicant was content for the matter to proceed on paper unless the court were minded to refuse leave.

7. By letter dated 10th February 1998, I caused my clerk to write a letter which contained the following paragraphs :

"4 The judge has asked me to add that the application as drawn is difficult to follow, and it is far from easy to ascertain precisely what it is that is relevant to the decisions sought to be impugned that is said to be procedurally improper, irrational or tainted by illegality. It is in the circumstances difficult to tell whether there is a case fit for further investigation. It will be necessary to present something considerably more precise and clear at the hearing of the application for leave.

5. The judge has asked me to draw to your attention the following further matters for your consideration :

(1) Declarations are appropriate to state rights as between the parties. None of the declarations sought appears an appropriate remedy, even if the grounds of complaints have substance.

(2) The order sought at paragraph 3 of the application under 'Relief sought' appears entirely inappropriate for a court exercising a merely supervisory jurisdiction."

Paragraph 3 of the "relief sought" was for an order that the applicant be permitted to retire with pensionable rights.

8. What I have now been presented with, regretfully, is consistent with the history of this case in the confusion which is caused.

9. I have been presented with one document entitled : "Amended Notice of Application for Leave". It deletes all the declarations previously sought and substitutes them by other declarations now sought; but the document is incomplete. It stops at page 8 of what is evidently intended to be a much longer document. In the bundle with which I am presented, the full amended application is there, but none of the original application is deleted. In the same bundle there are exhibits to an affidavit, but the affidavit is not there.

10. Then I am presented with a document entitled "Amended Submissions" which I am told today by Mr Beaumont for the applicant is intended to be in substitution of that part of the original notice of application for leave entitled "Submissions".

11. The declarations sought are yet again inappropriate. I shall give one example. In the new paragraph 3B : "The regulations, directions, rules governing the procedure of an Investigating Committee must comply with the Bill of Rights". What, I ask rhetorically, is the suggested right of the applicant which I am being asked to declare, and why is this form of relief required anyway? To which investigating committee is the direction directed? What is it to do with it? What future conduct of it does it affect?

12. Declarations are declarations of the rights of a party. The essence of the principle is summarised in Halsbury's Laws of England Vol 1(1) para.163 as follows :

"In judicial review proceedings if a declaration is to be granted it must be more than just a comment in relation to past events; it must be of some value either at the time of the hearing or in the future."

It is not, in other words, appropriate to grant a declaration that at the past hearing something should or should not have been done. A declaration that the applicant has been unlawfully dismissed may well be of value to him, if that is what he wishes. And in any event, where the applicant is with a remedy for an injustice created by the proceedings of a statutory tribunal without declaratory relief, what is the point, I ask, of seeking that declaratory relief?

13. The declarations sought in this application are entirely inappropriate, in my judgment, as prayers for declaratory relief; in many instances they are far too broad, some are quite meaningless and seek to apply to all hearings by all Investigation Committees; are not declarations relating to this applicant's present rights or to current obligations of the tribunal in relation to any proceedings pending.

14. As presented, I would delete all the declarations sought. I shall not deal at the moment with the question of delay.

15. As for the Submissions, I proceed on the assumption that they are intended to be grounds of the application. It ought to be apparent from grounds as they are read what the complaint is, what it is said is unlawful, or procedurally improper, or irrational. Mere shorthand with cross references which anticipate oral submissions before a judge is not good enough. Just by way of example, (I think I already referred to para.13), para.23 again, with respect, makes no sense as it stands. Neither does para.24 - these are just examples, I do not intend this to be exhaustive at all. And para.26. What I have before me is partly a statement of grounds of application, partly a skeleton argument, and quite a number of the paragraphs are simply not self-contained nor is it apparent on their face what the complaint is.

16. When the Rules require that the grounds of the application be stated, the requirement is that it appears clear from the grounds what are the items of complaint; this involves a statement of that which the decision-making body has done which it is said is illegal, irrational or procedurally improper. The document must itself be self-contained. It must be apparent from the document on its own what it is that is said to be reviewable and on what grounds. It is not a document from which, a judge should have to guess at the grounds, or from which he has to infer the grounds of complaint from earlier documents, or in respect to which he has to conduct a lengthy exercise in dissection and detection. It has to be crystal clear on the face of the document what the grounds of the application are. In my judgment, the vast proportion of the grounds which I have before me do not satisfy those criteria. Nor do I think it is in the least necessary to have before this court on an application of this kind a document of this length. I would have thought that it ought to be possible within a matter of a few pages to state precisely where it is said the tribunal went wrong.

17. I have to say that I was minded to dismiss this application. The test which a court has to apply in deciding whether or not to grant leave is whether there are plausible allegations which, if substantiated, will or may demonstrate that the decision was not in accordance with law and there must be implied, therefore, the expectation that it is for the applicant to show just that. And if the application is so drawn that the court is forced to play the role of detective in fishing out what the real grounds are, to shroff through 35 pages or so where two or three would do, then a court will in some cases be entitled to say it is not in a position to ascertain whether or not the test is satisfied. It was on that basis that I was strongly minded to dismiss the application but because I do not think that that would operate fairly on the applicant, I do not do so.

18. I shall therefore adjourn this matter with the direction that an amended or fresh notice be presented within 14 days. I will consider the application on paper in the first instance, and notify the parties if I require an oral hearing.

Costs

19. Costs to the putative respondents in any event.

(F. Stock)

Judge of the Court of First Instance,
High Court