梁頌恆 v. 立法會主席

HCAL 1160/2018

[2018] HKCFI 2030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1160 OF 2018

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Before:  Hon Au J in Chambers

Date of Decision: 5 September 2018

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D E C I S I O N

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1.Ms Leung Kit‑Hing, Doris filed an “ex parte” summons on 27 August 2018 in HCAL 1160/2018 seeking the following reliefs:

“1. Leave be granted FOR Applicant to adduce evidence of supporters’ support (under legitimate expectations) in support of Mr. Leung Chung‑hang Sixtus’ applications and Interim Relief sought under HCAL 1160/2018 (HKCFI 1869/2018) …and under Order 53 rule 3(10) the ‘leave’ to apply for judicial review is granted, relief sought is an order of prohibition or certiorari, the grant should operate as a ‘stay’ of proceedings …the CFI should clarify the position in the 1^st hearing for ‘leave’, the subsequent ‘Injunction’ application is in fact the ‘Summons for directions and for clarifications of the ‘irregularities’ of the 1^st hearing for ‘leave’…costs order should not be incurred and be varied and set-aside also per case law Leung Kwok Hung v. President of Legislative Council No. 2 2014 17 HKCFAR 841 when Applicant proceed for ‘Public Interests’ and have ‘No personal gain’ in the outcome of the proceedings, costs order should not be ordered and if ordered be varied and discharged;

2. Under Order 53/14/62, all Applicant’s relief sought under HCAL1160/2018 (HKCFI 1869/2018) in particularly a declaration, restitution and damages to be assessed be maintained;

3. The above 1. 2. also applies to Mr. Kwok Cheuk Kin’s application under HCAL 1165/2018 (HKCFI 1869/2018) and the related ‘Injunction’ application for cost order be set-aside and discharged as well…

In the Foregoing, the Applicant herein applies for an Order to be made.”

2.On the summons, Ms Leung has stated it “to be dealt with on paper”.  This is what the court would do by way of this decision.

3.According to Ms Leung’s affidavit sworn on 28 August 2018, she says she has served this summons on the applicant (Mr Sixtus Leung) under HCAL 1160/2018 through the applicant (Mr Kwok) under HCAL 1165/2018.  She has also asserted that Mr Sixtus Leung and Mr Kwok have no objection to this application.  She has not served it on the putative respondents[1]. Although the summons is only filed under HCAL 1160/2018, as mentioned above, Ms Leung also suggests that the evidence sought to be filed would also be relevant to and assist Mr Kwok under HCAL 1165/2018.

4.In HCAL 1160 & 1165/2018, Mr Sixtus Leung and Mr Kwok respectively seek leave to judicially review the decisions relating to what is now commonly known as the Co-Location Arrangement at the Guangzhou-Shenzhen-Hong Kong Express Rail Link Station in Hong Kong.  The rolled-up hearing of HCAL 1160 & 1165/2018[2] has been fixed to be before Chow J on 30 October 2018.

5.The court has no hesitation in dismissing this summons for the following reasons.

6.Ms Leung is not a party in these proceedings.  On the other hand, the court notes that Order 53, rule 5B(1) of the Rules of the High Court (Cap 4A) provides that any person may apply for leave to file evidence or make representations at the hearing of a judicial review.  However, as further expressly provided under rule 5B(3), the court shall not grant such leave unless the court is satisfied that the applicant is a proper person to be heard.

7.In my view, Ms Leung is not such a proper person that needs to be heard.

8.In substance, the matters Ms Leung seeks to raise by way of filing evidence in Mr Sixtus Leung’s present intended judicial review relates to what she says Mr Sixtus Leung is and should be treated as a properly elected person to represent his electorates (Ms Leung is one of such voters) in participating in public affairs, including the passing of bills in the Legislative Counsel (“LegCo”).  Ms Leung therefore says Mr Sixtus Leung should be heard to represent his electorate.  She also seeks to raise issues relating to Mr Sixtus Leung’s disqualification as a LegCo Member in other proceedings, which proceedings have already been long finally concluded[3].

9.In my views, these matters are entirely irrelevant to Mr Sixtus Leung’s intended judicial review application:

(1) Whether or not Mr Sixtus Leung is or should be treated as a LegCo Member or an elected person has nothing to do with the merits of the grounds of challenge raised in his intended judicial review against the co-location decisions.

(2) In any event, the position that Mr Sixtus Leung has been disqualified as a LegCo Member in law is confirmed by Appeal Committee of the Court of Final Appeal and can no longer be re-opened.  See: Chief Executive of the Hong Kong Special Administrative Region & Others v Sixtus Leung Chung Hang (2017) 20 HKCFAR 390.

10.Moreover, and in any event, even if (which is not accepted for the above reasons) these matters sought to be raised by Ms Leung are in any way remotely relevant to Mr Sixtus Leung’s intended judicial review application, there is no reason why Mr Sixtus Leung cannot raise them himself.  Hence it is unnecessary for the court to hear Ms Leung or to have Ms Leung filing the evidence: QT v Director of Immigration (2018) 21 HKCFAR 150, paragraphs 10 - 18.

11.A fortiori, these matters have nothing to do with Mr Kwok’s intended judicial review.

12.In the premises, Ms Leung is clearly not a proper person that should be heard at the forthcoming intended judicial review.  The summons is entirely without merit and is indeed an abuse of process.  It is hereby dismissed.

Ms Leung Kit Hing, Doris, acting in person