CACV 151/2023, [2023] HKCA 1184
On Appeal From [2023] HKCFI 1178
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 151 OF 2023
(ON APPEAL FROM HCAL NO. 1264 OF 2022)
________________________
BETWEEN
| | 莊裕安 | Applicant |
| | and | |
| 特首李家超 | 1st Putative Respondent |
| 律政司司長林定國 | 2nd Putative Respondent |
________________________
| Before: | Hon G Lam JA and Hon Anthony Chan J in Court |
| Date of Hearing: | 13 October 2023 |
| Date of Judgment: | 1 November 2023 |
________________________
J U D G M E N T
________________________
Hon Anthony Chan J (giving the Judgment of the Court) :
1. This is the appeal of the Applicant against the Order of Mr Justice Coleman dated 5 May 2023 by which the Applicant’s application for leave to apply for judicial review was dismissed. Detailed reasons for the Order were given in a Decision of the same date (“Decision”).
2. The Respondents (respectively “CE” and “SJ”) have indicated that they are taking a neutral stance in this appeal and did not appear at the hearing.
The leave application
3. As stated in the Decision, the conduct of the CE and SJ which was the subject matters intended in the leave application had to be inferred from the reasons for relief (they were not stated in the Applicant’s homemade Form 86), namely, their failure to respond to the Applicant’s 4 emails, 2 of which were dated 23 July 2022 and the remainder dated 25 July 2023 (“Emails”).
4. The Emails were addressed to the CE and the HKSAR Government. The Emails referred to 2 YouTube videos uploaded by the Applicant in which it was said that he had made serious accusations against various Judges of the HKSAR for knowingly breaking the law.
5. The relief sought by the Applicant was an Order: (a) for an immediate reply from the CE and SJ and an account of the enquiries made in the Emails; and (b) that the replies from the CE and the SJ be clear and precise, targeting at the enquiries in the Emails.
6. In short, the reasons for relief advanced by the Applicant were that the enquiries in the Emails involved violation of Basic Law provisions and matters of public interest. The CE and the SJ had unavoidable responsibility to provide official explanation on enquiries involving public interest. By their failure to respond to the Emails, the CE and the SJ had neglected their duty and violated the public’s right to know.
Decision below
7. The learned Judge held that the reasons for relief advanced by the Applicant did not properly identify any alleged public law error on the part of the CE or the SJ. Para 13 of the Decisions stated as follows :
“… All that the Applicant really says is that he has made enquiries which he regards as involving the public interest, and that he has not been given any official reply or response. He suggests that the CE and SJ have an unavoidable responsibility to provide official, reasonable and relevant explanation or clarification in relation to challenges and enquiries involving public interest. The Applicant has in his papers, however, failed to identify either (1) how the alleged “unavoidable responsibility” arises, or (2) any other legal requirement or policy which is said to have been subject to an identified public law breach reflected in the failure to have received any official reply or response.”
8. It can be seen from the Decision that detailed consideration was given to all the arguments raised by the Applicant. Each of the Basic Law provisions relied upon (Articles 27, 30, 35, 48(1), (2), (4), (6) and (7) and 90) was analysed. The Judge took the view that those provisions did not assist the Applicant in identifying any public law error on the part of the CE or the SJ. As regards Article 48, which in general terms sets out the powers and functions of the CE, para 19 of the Decision stated as follows :
“… I do not think that Article 48, and the various powers and responsibilities given to the CE by that article, reasonably arguably gives rise to any duty to answer any and all email enquiries or requests as may be sent to the CE, even if the sender of the emails suggests that the matters raised are in the public interest and relate to the Basic Law.”
9. The Judge also pointed out that none of the Articles of the Basic Law relied upon by the Applicant placed any duty or responsibility onto the SJ.
10. It was concluded that that Applicant had failed to identify any reasonably arguably ground of intended review.
Grounds of appeal
11. Eight Grounds of Appeal were set out in the Notice of Appeal. They may be summarized as follows :
(1) Grounds 1 to 3 contain a complaint that the Judge, being monolingual, had ignored the Applicant’s offer to provide English translation of his Form 86 and Affirmation. The Applicant understood from a previous direction of the Court (in a different case) that it was the responsibility of litigants to provide English translation of Chinese documents and that since his Form 86 and Affirmation contained his view on legal principles, the Court should not provide translation for the same to demonstrate its independence. The Judge was unable to understand Chinese, and therefore was unable to understand the Applicant’s case. Consequently, the Decision was not a conscientious adjudication, and it was contrary to Article 25 of the Basic Law (equality before the law) and unfair to the Applicant;
(2) Ground 4 contends that the matters raised in the Emails (“Matters”) had not been subjected to judicial determination. Therefore, the Judge had no basis to express any view or decision (on the Matters);
(3) Grounds 5 and 8 contend that the Applicant had made clear to the Judge from the outset that the purpose of his application was not to seek any determination on the merits of the Matters. The responsibility of the Court was to consider whether the Matters concerned public interest and possible breach of the Basic Law, and to order the CE and the SJ to clarify the merits of the Matters. The Judge had deliberately ignored (such submissions);
(4) Ground 6 contends that the CE had the duty to discharge his constitutional responsibilities and to ensure that the Basic Law is complied with. Faced with the allegations in the Emails that the judicial officers might have breached the law, the CE had the duty to account to the public (on such allegations) on behalf of the Government;
(5) Ground 7 contends that the people of Hong Kong had the right to know when there was a possibility that their legal rights had been infringed.
Grounds 1 to 3
12. There was (and is) no inflexible rule about the provision of translation. There was no impropriety for the Judge to rely on the translation produced by the Court interpreter (see Decision, [7]). Further, the fact that the Form 86 or the Affirmation of the Applicant might have contained his views on legal principles would not have rendered it inappropriate for the Court to rely on the translation of the Court interpreter. To the contrary, it was important for the Court to be provided with accurate and impartial translations. We are unable to accept the Applicant’s submission that the Court below was disrespectful to him in declining his offer to provide English translation.
13. As stated in para 7 of the Decision, the Applicant chose to address the Court and make his submissions in English at the hearing. The Judge had given a detailed Decision. There is no suggestion by the Applicant that there was anything said in the course of the hearing or any content in the Decision which reflects a misunderstanding by the Judge of his case. We are unable to see any substance in these Grounds.
Ground 4
14. It is clear from the Decision that the Judge had not expressed any view on the merits of the Matters. This Ground has no substance.
Grounds 5 and 8
15. It appears that the Applicant has failed to understand the Decision properly. The refusal to grant leave for judicial review was based on his failure to identify any alleged public law error on the part of the CE or the SJ. Such an error is fatal to a judicial review application, and the Judge was clearly right.
16. In his submission, the Applicant expressed disagreement with the confinement of judicial review to public law errors. However, such a requirement reflects the system applied in Hong Kong that the Executives are free from intervention of the Court unless they have committed a public law error.
Grounds 6 and 7
17. These grounds can be dealt with collectively. The gravamen of these complaints is that the CE had failed to, in the words of the Applicant, give an account on the allegations made in the Emails.
18. The Judge had examined each of the Basic Law provisions relied upon by the Applicant and came to the conclusion that they did not assist the Applicant in the identification of any alleged public law error. We see no fault with the Judge’s analysis.
19. The Judge was plainly right that the responsibilities placed on the CE under Article 48 of the Basic Law would not give rise to the duty to investigate every and all emails received by him in which serious allegations said to involve public interest and possible breach of the Basic Law were made. We also reject these Grounds.
Disposition
20. For these reasons, this appeal is dismissed. We make no order as to costs.
| ( Godfrey Lam ) | ( Anthony Chan ) |
| Justice of Appeal | Judge of the Court of
First Instance |
The Applicant appeared in person