CHIU KIN HO v. COMMISSIONER OF POLICE

HCAL135/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.135 OF 2004

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DECISION

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1.  By summons filed on 16 April 2010, the applicant applies for:

(1) Leave to issue out of time an originating summons for the hearing of a judicial review application, for which leave was given on 3 December 2004; and

(2) Leave to argue two of the grounds in his Notice of Application for leave to apply for judicial review (“Form 86A”), for which leave had been refused on 3 December 2004.

2.  The Commissioner of Police (“the Commissioner”) opposes the application.

Facts

3.  The facts relevant and leading to the present application can be briefly stated.

4.  The applicant was formerly a police officer.  In June 2002, the Police Force brought disciplinary proceedings against him for 42 disciplinary offences.  Charge (A) was for failure to be prudent in his financial affairs, contrary to Police General Order 6-01(8) (1999 version) (“PGO 6-01(8)”).  The remaining 41 charges were for un-notified visits to Macau, to which he pleaded guilty.  After a full hearing, the applicant was found guilty of Charge (A).  He successfully appealed against the finding to the Commissioner, who acted by the Deputy Commissioner, ordered a rehearing.

5.  The re-hearing commenced in September 2003.  The applicant was again convicted.  He was awarded a severe reprimand and further ordered to compulsorily resign without salary in lieu of notice.  His appeal to the Commissioner was dismissed on 10 August 2004.  He left the Force on 20 August 2004.

6.  On 11 November 2004, the applicant, acting in person, applied for leave to apply for judicial review in connection with the guilty finding and award of Charge (A).  His Form 86A raised six grounds, namely,      

(1) The system of police disciplinary proceedings is in violation of Article 10 of Hong Kong Bill of Rights Ordinance, Cap.383 (“BORO”), which provides that the tribunal conducting the hearing should be independent and impartial.

(2) The system of police disciplinary proceedings is in violation of Article 10 of BORO, which provides that all persons shall be equal before the tribunal.

(3) The Deputy Commissioner acted with ulterior motive when he made the decision to order a rehearing.

(4) PGO 6-01(8) is in violation of Article 1 of BORO.

(5) PGO 6-01(8) is irrational.

(6) The sentence imposed is disproportionate or unreasonable.

7.  At the ex parte leave application hearing on 3 December 2004, the applicant raised an additional ground that the guilty finding was not supported by evidence.  After hearing his oral submissions, I granted leave to the applicant to apply for judicial review on the basis of ground (3) and the additional ground.  Leave to argue the other grounds was refused.  The written Reasons for Decision were handed down on 7 December 2004. 

8.  On 13 December 2004, the applicant filed a Notice of Appeal to appeal against my decision, and seek an order from the Court of Appeal for leave to argue Grounds (1), (2) and (6).  On 2 March 2005, the Court of Appeal dismissed the appeal (case no. CACV 374/2004).

9.  Notwithstanding that leave to apply for judicial review had been given, the applicant did not take step to make the substantive application for judicial review.  The 14 days for the issue of originating motion (now originating summons) lapsed on 17 December 2009.

10.  On 26 March 2009, the Court of Final Appeal handed down the judgment in Lam Siu Po v. Commissioner of Police [2009] 4 HKLRD 575.  The Court of Final Appeal held, inter alia, that the blanket restriction on professional legal representation imposed in police disciplinary proceedings was systematically incompatible with Article 10 of BORO and is so null and void.  Hence, although there is no absolute right to legal representation, the tribunal has a discretion to permit legal representation where fairness so requires: see paras.135-142 and 168-169.

11.  In April 2009, the applicant applied for legal aid, which was granted to him in October 2009.  By letters dated 12 November and 1 December 2009, the applicant’ solicitors enquired with the Department of Justice whether the Commissioner would consent to his decision being quashed and alternatively consent to the applicant issuing an originating summons for judicial review out of time.  By letter dated 7 January 2010, the Department of Justice declined to give the consent sought.  Thereafter the applicant was engaged in conference with and providing further information to counsel.

12.  On 15 March 2010, the applicant filed the Notice of Intention to Proceed.  On 16 April 2010, the present summons, together with the supporting affirmation, were issued.

Extension of time application

13.  The first part of the applicant’s application is for an extension of time to issue the originating summons for making the application for judicial review.  Before looking at the relevant legal principles, it is necessary to understand the applicant’s reasons for the delay.  In paragraphs 14 to 16 of his affirmation filed on 16 April 2010, the applicant gave the following explanations:

“ 14.     After my appeal to the Court of Appeal was dismissed I do not know how to do. I do not have much legal knowledge. My legal aid applications were refused.

15.    After my resignation from the Force I worked as a delivery van driver, I was paid on a daily basis. I earned about $7,000 to $8,000 a month. I could not afford to find a lawyer to advise me.

16.    I have to work over 10 hours a day for my job. At the same time, I have to look after my aged mother and a younger sister who was suffering from serious mental illness. I had to take my younger sister to the mainland for treatment in 2006 and 2007. Then she received treatment at the Prince of Wales Hospital. I was all exhausted.  My younger sister passed away in October last year.”

14.  In a nutshell, the applicant’s reasons for failing to proceed with the substantive judicial review application are that he did not know how to proceed and he had been occupied with other matters.  Alternatively, as Mr Kwok puts it, the applicant was ignorant of the need to issue an originating motion. 

15.  As to the relevant legal principles, the starting point is the statutory provisions.  Order 53 rule 4(1) of Rules of the High Court, Cap.4A provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  Rule 5(5) further provides that an originating motion (now an originating summons) must be entered for hearing within 14 days after the grant of leave.  Section 21K(6) of the High Court Ordinance, Cap.4, stipulates that where there has been undue delay in making an application for judicial review, the court may, inter alia, refuse to grant any relief sought on the application if it considers that the granting of relief would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or would be detrimental to good administration.

16.  Counsel have helpfully referred to a number of authorities.  The principles are not controversial and can be summarised as follows:

(1) Whether to grant an extension of time is a matter of the court’s discretion, the exercise of which must depend on the circumstances of each case: Lau Luen Hung Thomas v. Insider Dealing Tribunal, FAMV 46/2009 (unreported) 4 December 2009, para.7.

(2) There must be promptness in judicial review proceedings. Failure to act promptly by itself can constitute undue delay: Lo Siu Lan & Anor v. Hong Kong Housing Authority CACV 378/2004 (unreported) 17 December 2004, para.34; Bui Hoai Thu v. Commissioner of Registration HCAL 85/2006 (unreported) 19 October 2006, para.10.

(3) Order 53 provides a simplified and expeditious procedure that is essential to the timely disposal of judicial review cases. In public law litigations, a more rigid approach to enforcement of time limits is therefore called for.  An applicant who was granted leave to apply for judicial review does not thereby obtained a right to a judicial review hearing. There is a continued need for expedition after leave to apply for judicial review was granted: R v. Institute of Chartered Accountants in England and Wales, ex parte Andreou Administrative Law Reports vol. 8, 557, 562D- 527H; Anderson Asphalt Ltd v. Secretary for Justice [2009] 3HKLRD 215, 258 para.144.  

(4) Extension of time will not be granted unless there are good reasons: Li Siu Hung v. Commissioner of Correctional Services CACV 277/2009 (unreported) 19 March 2010, para.9.

(5) The fact that the application or appeal is likely to succeed is not a sufficient exceptional circumstance for an extension of time to be granted, although lack of substantial merits in the application/ appeal would be a good reason to refuse an extension: Lau Luen Hung Thomas v. Insider Dealing Tribunal HCMP 1017/2008 (unreported) 9 April 2009, para.25; Tsui Kin Kwok Johnnie v. Commissioner of Police HCAL50/2009 (unreported) 26 February 2010, para.38.

(6) An applicant who sleeps upon his right may be barred from pursuing his rights in judicial review even though he may have a meritorious case: Bui Hoai Thu v. Commissioner of Registration, para.12; see also Ng Muk Kam HCAL 14/2010 (unreported) 18 March 2010, para.15, where the applicant was refused leave to apply for judicial review out of time, even though it is accepted that he had a reasonably arguable case with a real prospect of success.

(7) A change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances: HKSAR v. Hung Chan Wa (2006) 9 HKCFAR 614; Lau Luen Hung v. Inside Dealing Tribunal, op cit.; Ho Ho Chuen v. Commissioner of Police HCMP 2276/2009 (unreported) 18 December 2009.

(8) Where the delay is not the consequence of a known (and erroneous) state of the law, the applicant should not be treated more favourably: Li Siu Hung v. Commissioner of Correctional Services, op cit, para.10.

17.  In the present case, the applicant is out of time by 5 years and 5 months, the time for the issue of the originating motion having expired on 17 December 2004.  The delay is substantial and serious.  The burden is on him to demonstrate there are good reasons to extend time for making the judicial review application.  It should be noted that no judicial review application is in existence unless and until the originating motion (or originating summons) has been issued.  Accordingly, the failure to issue the originating motion within the time stipulated under Order 53 cannot be viewed in the same light as a failure to set down a civil action for trial within the prescribed time limit. 

18.  The applicant’s reason for the delay is simply that he did not know what to do and was not aware of the need to issue an originating motion.  Mr Chan, who appears for the Commissioner, submits that the reason is dubious, pointing out that the applicant was able to make his application for leave to apply for judicial review and to appeal to the Court of Appeal within the prescribed time limit.  In my view, even accepting the truth of the applicant’s reason, it still does not explain his inaction.  The applicant was aware he had been given leave to apply for judicial review, albeit not on all the grounds he put forward.  If he was minded to proceed with the judicial review, he would have made enquiries or tried to find out what should be the next step.  His affirmation, however, does not show he had done anything with a view to further the judicial review proceedings.  The applicant’s ignorance of the required procedure is not a good reason to explain the delay.

19.  The facts that his legal aid application was refused and he had no resources to seek legal advice and that he was occupied with taking care of his family members also do not afford good reason for the delay. 

20.  Mr Kwok, who appears for the applicant, argues that the change in the law brought about by Lam Siu Po v. Commissioner of Police is something that should be taken into account in the court’s weighing exercise.  It is said that in light of the law prevailing in 2004, the applicant’s judicial review application was bound to fail.  With the change brought about by the Court of Final Appeal’s judgment, the applicant should be given the opportunity of arguing his case.

21.  It must be noted at the outset that it is not the applicant’s evidence that it was because he thought his judicial review application was bound to fail that he did not proceed with it after leave was granted.  Furthermore, the applicant was granted leave to argue two of the grounds set out in his Form 86A.  Notwithstanding the lower threshold for granting leave at the time, it cannot be said that his intended judicial review was in 2004 utterly unarguable.  The perceived lack of merits of the application therefore does not explain the applicant’s delay and inaction since 2004. 

22.  As to the submission that the applicant ought to be given an opportunity to challenge the outcome of the disciplinary proceedings having regard to the judgment in Lam Siu Po v. Commissioner of Police, three points need to be made.  The first is that a change in the understanding of the law is not a sufficient reason to justify an extension of time.  In the absence of other good reason to explain the delay, the applicant’s wish to take advantage of the Court of Final Appeal’s judgment will not justify the court extending the time.  Secondly, even assuming the applicant has a meritorious case on the basis of Lam Siu Po v. Commissioner of Police, this is not a sufficient factor to justify an extension of time.  The court’s discretion should not be exercised in favour of an applicant who sleeps upon his rights.  Thirdly, the applicant’s complaint under Ground (2) in his Form 86A is not about the restriction on professional legal representation.  Rather, the applicant’s complaint is that there has been disparity in the right to representation of a police constable (of which he was one) and that of a senior police officer.  Mr Kwok argues that Ground (2) is capable of including a complaint of unfairness arising from denial of professional legal representation.  I have considerable reservation about this submission having regard to the formulation in the Form 86A.  But even if the ground can be read as extending to a complaint on restriction on professional legal representation, the applicant will still have to show there was unfairness to him arising from such restriction.  There is presently no such information in his Form 86A and supporting affirmations.  It is, for instance, not his case that but for the restriction, he would have been legally represented in the disciplinary proceedings.

23.  On the other hand, it is relevant to consider the prejudice occasioned to the Commissioner by the delay.  It is the Commissioner’s contention that it would be detrimental to the good administration of the Police Force to grant any relief to the applicant after such a long delay. The affirmation of Chau Kwok Leung Alfred sets out the administrative difficulties that the Force would face in rehearing past disciplinary cases and reinstating police officers whose charge is dismissed or is given a non-terminative award on a rehearing. 

24.  Two of the police officers involved in the applicant’s disciplinary proceedings had retired in 2009.  Among them is the Deputy Commissioner who made the decision to order a rehearing.  The relevant records and papers are however still available.  Notwithstanding this, I do not agree that the Police Force would face no real difficulties.  In my view, one can readily see the difficulties that the Police Force would be put to when faced with a judicial review challenging disciplinary proceedings that took place more than six years ago.

25.  As A Cheung J pointed out in Tsui Kin Kwok Johnnie v. Commissioner of Police, op cit, paras.33 & 34, finality is an important public policy that should be borne in mind when the court exercises its discretion and this applies to police disciplinary proceedings.  I do not accept that this can be outweighed by considerations of the career of individual police officer and of upholding the morale of the Police Force.

26.  This is a case where there has been a lengthy and serious delay.  No good reason has been given for the delay.  Having regard to the reasons set out above, the discretion must be exercised against granting an extension of time for the issue of the originating summons to apply for judicial review.

Application for leave to argue Grounds (2) and (5) in Form 86A

27.  Given my refusal to extend the time for the issue of the originating summons, it will follow that the application for leave to argue Grounds (2) and (5) in Form 86A has to be dismissed. I need only deal briefly with the argument whether this court has the power or is in a position to make the order sought.

28.  The Commissioner’s argument is that in light of the dismissal of the applicant’s appeal by the Court of Appeal, in the absence of fraud or collusion, this court is functus and has no jurisdiction to re-open these two grounds.  The applicant, on the other hand, says that the judicial review proceedings are still alive and the judgment of Lam Siu Po v. Commissioner of Police has brought about a significant change of circumstances, this court should have power to permit re-instatement of the two grounds.

29.  In the UK, the practice is for an applicant to appeal to the Court of Appeal where leave to argue a ground has been refused, but exceptionally, the court hearing the substantive judicial review may permit the ground to be argued if there has been a significant change of circumstances or where significant new facts have since come to light: Civil Procedure Rules 54.15.1 and 54.15.5.   There are no similar provisions in our Order 53, whether in the version prevailing in 2004 or in the current version.

30.  In the present case, when dismissing the applicant’s appeal, the Court of Appeal held that the applicant could not challenge the refusal of leave to argue some of the grounds in his Form 86A by way of an appeal under Order 53 rule 3(4).  Nevertheless, the Court of Appeal went on to consider the merits of the grounds for which leave had been refused and concluded that they were not potentially arguable. This includes Ground (5), even though the applicant had not appealed against the decision not to grant leave to argue it. 

31.  In the case of陳庚秋訴 香港警務處處長 HCMP2824/2004 (unreported) 29 December 2004, the applicant applied for leave to appeal out of time against the refusal of leave to argue some of the grounds in the Form 86A.  The Court of Appeal (differently constituted) dismissed the application on the basis that the grounds for which leave was refused were unarguable.  The Court of Appeal did not consider whether it was legally open to the applicant to bring the intended appeal.

32.  Whether an applicant can appeal to the Court of Appeal against the refusal of leave to argue some of his intended grounds is immaterial to the determination of the present application. What is important is that the Court of Appeal had also considered the merits of Grounds (2) and (5) when dismissing the applicant’s appeal.  This being the position, it is not open to the applicant to re-open the matter and to re-argue that leave should have been given.

33.  As to Mr Kwok’s submission that the judgment in Lam Siu Po v. Commissioner of Police constitutes a significant change of circumstances, unlike in the UK, there is no provision in our Order 53 to enable an applicant at the substantial judicial review to re-argue a ground for which leave has been refused.  Further as noted above, without amending the Form 86A and reformulating Ground (2), it is doubtful whether the judgment in Lam Siu Po v. Commissioner of Police constitutes a significant change of circumstances.

Conclusion

34.  For the above reasons, the applicant’s summons is dismissed.  Applying the normal rule of costs follow event, there is also an order that the applicant pays the costs of the Commissioner, to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with the Legal Aid Regulation.