Cheung Moon Hoi Jeff v. Administrative Appeals Board

HCMP 3282/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 3282 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO 118 OF 2014)

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BETWEEN

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 11 November 2015, Fung J refused to grant leave to the Applicant to apply for judicial review in respect of a decision on costs made by the Administrative Appeals Board [“the Board”] on 27 June 2014 in AAB7/2009.

2.The Applicant did not appeal against the decision of Fung J within 14 days as required by Order 53 Rule 3(4).  On 9 December 2015, he issued the present application seeking extension of time to appeal.  He said he did not lodge the appeal in time due to misinformation from his former solicitor.  That does not strike us as a good excuse.  Having said that, we accept that the prejudice occasioned by the delay to the putative respondent is not great.

3.Though the delay was not long, in accordance with well established practice we have to consider whether the intended appeal has any reasonable prospect of success in an application of this nature: see Norwich & Peterborough Building Society v Steed [1991] 1 WLR 449; Secretary for Justice v Hong Kong & Yaumatei Ferry Co Ltd [2001] 1 HKC 125; Leung Kwok Hung v President of Legislative Council [2008] 2 HKLRD 18.

4.Having read the intended grounds of appeal set out in the affirmation of the Applicant of 9 December 2015 and the very comprehensive judgment of Fung J, and also the written decision of the Board of 27 June 2014, we come to the clear conclusion that the intended appeal does not have any reasonable prospect of success.

5.It must be said that judicial review does not afford an avenue of appeal against the decision of the Board.  In hearing a judicial review, the court is only concerned with the legality, the rationality and the procedural fairness of the administrative decision.

6.It is beyond doubt that the Board does have the power to award costs against an appellant if it is satisfied that he has conducted his case in a frivolous or vexatious manner, see Sections 21(1)(k) and 22(1)(a) of the Administrative Appeal Board Ordinance Cap 442.

7.In the present instance, the Board found that the Applicant had acted in a frivolous or vexatious manner.  We do not find any reasonable ground for suggesting that the Board had misdirected itself on law in reaching that conclusion.  The Applicant’s citation of Ng Yat Chi v Max Share (2005) 8 HKCFAR 1 cannot assist him as frivolous and vexatious conducts can take many forms and re-litigation of issues is only one of them. The conducts of the Applicant as found by the Board are clearly frivolous and vexatious.  In a judicial review, the court should not be concerned the process of fact findings and assessment of evidence by the Board in coming to such conclusion.

8.Thus, the Board acted legally in making the order for costs.

9.Based on the reasons given in the Board’s decision, we cannot see how it can be reasonably arguable to suggest that the decision is irrational, or Wednesbury unreasonable.

10.The majority of the grounds advanced by the Applicant to support his application for judicial review as summarized by Fung J at §64 of his judgment (except the ground at §64 (k)) related to the fairness of the process before the Board.  For the reasons given by Fung J at §§70 to 75, 79 and 80, the judge was correct in holding that the process had not been unfair.  We have also read the grounds set out in the Applicant’s affirmation of 9 December 2015.  We do not find any reasonable basis for suggesting that chairman of the Board acted under any pre-conceived notion.  The mere fact that the chairman invited submissions on the question of frivolous or vexatious conducts cannot reasonably be regarded as evidence of bias.

11.We do not see any reasonably arguable basis for suggesting that the chairman should have recused himself.

12.For these reasons, as there is no prospect of success in the intended appeal, we refuse to grant any extension of time and the summons of 9 December 2015 is dismissed accordingly.

The applicant acting in person