郭卓堅 v. 立法會主席梁君彥and Another

CACV 158/2018

[2018] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2018

(ON APPEAL FROM HCAL 751/2018)

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Before:  Hon Lam VP, Chu and Poon JJA in Court

Dates of Written Submissions:  5 and 19 July 2018

Date of Judgment:  10 October 2018

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J U D G M E N T

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

1.On 8 May 2018, Chow J refused to grant leave to the applicant to apply for judicial review. In the Form 86, the applicant did not particularize his challenge by reference to any specific decisions of the putative respondents. The relief he sought was set out by the judge at paragraph 1 of his Decision at [2018] HKCFI 983:

“ a)  a declaration that it is unconstitutional for any Government officers, other than those designated officials who attend the Legislative Council “to sit in on the meetings of the Legislative Council and to speak on behalf of the government” pursuant to Article 62(6) of the Basic Law, to carry out activities freely within the Legislative Council while it is session; and

b)  an injunction to restrain Government officers from going to the Legislative Council to monitor the “activities” of members of the Legislative Council, contrary to Section 19 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“the Ordinance”).”

2.By a notice of appeal of 15 May 2018, the applicant appealed against that decision.  He also applied by a summons of 31 May 2018 for leave to adduce fresh evidence on appeal.

3.On 17 May 2018, the applicant consented in writing for the appeal to be processed on the papers without any oral hearing.  Since then, he retained lawyers to act for him and he confirmed that the appeal can be processed without any oral hearing.

4.Written submissions were lodged by his solicitors on 5 July 2018.

5.Written submissions were also lodged on behalf of the 1^st putative respondent on 19 July 2018.

6.The 2^nd putative respondent did not lodge any submissions.

7.Regarding the summons of 31 May 2018, the applicant applied to adduce further evidence to address the observations of the judge at [8] and [10] of the Decision:

“ 8. The Applicant has not adduced any evidence in his affirmation filed on 2 May 2018 which can conceivably support the allegation that the conduct of Government officers within the precincts of the Chamber is such as would fall within the prohibited lists of conduct in Section 19(a) to (d) of the [Legislative Council (Powers and Privileges) Ordinance].

…

10. I also do not consider that the Applicant has sufficient standing to make the present application.  There are plainly other persons who have a stronger and more direct interest than the Applicant in the matters complained of, eg, the existing members of the Legislative Council, who can apply for judicial review if grounds exist for such application to be made.  I see no reason why the Applicant should be allowed to pursue these complaints when those other persons fail, or do not see the need, to do so.”

8.In his 2^nd affirmation, the applicant explained that as he had no legal education, he did not realize he had to lodge evidence in those respects at the court below.  He also said there were media reports of the acts of the government officials in the Legislative Council and there were councillors who expressed discontent with such acts.  He also said he would explain his interest in the matter.

9.Notwithstanding that the summons prepared by the solicitors for the applicant referred to a 3^rd affirmation of the applicant, the applicant did not produce a copy of the same for our consideration.

10.An appeal is normally not the occasion for new evidence to be admitted.  The established approach is that additional evidence would only be admitted if the test in Ladd v Marshall [1954] 1 WLR 1489 can be satisfied, viz that the evidence

(1) could not have been obtained with reasonable diligence for use at the hearing below;

(2) must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive; and

(3) must be such as it is apparently credible.

11.The same test is generally applicable in an appeal against refusal of leave to apply for judicial review though the court may relax the rule in exceptional circumstances, see Wong Ho Tong v Director of Lands [2018] HKCA 330.

12.We do not accept the applicant could not have obtained the relevant evidence at the court below if he had exercised reasonable diligence.  The fact that he had no legal education cannot be a valid excuse.  Condition (1) of Ladd v Marshall, supra, is not satisfied.

13.Further, as discussed in Wong Ho Tong v Director of Lands, supra, the relevance of the new evidence has to be assessed in light of the challenge advanced in the Form 86.  In the present case, in his own Form 86, the applicant’s challenge was based solely on an alleged breach of Article 62(6) of the Basic Law and Section 19 of the Legislative Council (Powers and Privileges) Ordinance.  He did not advance any challenge based on the Administrative Instructions for Regulating Admittance and Conduct of Persons, Cap 382A.

14.As held by the judge, Article 62(6) clearly does not have the effect the applicant contended for.

15.As regards Section 19, the applicant has not formulated a proper case for the alleged breach of this section in his application before the judge.  In the affirmation of 2 May 2018, he only stated that the 2^nd putative respondent sent Government officials to the Legislative Council Building to monitor the conducts and voting inclination of legislators.

16.We do not find it reasonably arguable that the alleged monitoring (or surveillance, as put by solicitors for the applicant) constitutes molestation for the purpose of Section 19.  Those general allegations fell far short of making out a case under Section 19. 

17.Thus, allowing him to adduce evidence on alleged molestation of legislators (as submitted by the applicant’s solicitors) tantamount to granting him leave to move the goal post after the expiration of the 3-month time limit in Order 53 Rule 4(1).

18.We cannot permit such a course to be taken when there is no application to amend the Form 86, particularly when we have not even been shown the 3^rd affirmation.

19.Further, since the applicant does not even place before us his 3^rd affirmation, we cannot be satisfied that the evidence is apparently credible.

20.Conditions (2) and (3) of Ladd v Marshall, supra, are not satisfied.

21.We do not see any exceptional circumstances in the interests of justice to admit the undisclosed 3^rd affirmation.

22.The summons of 31 May 2018 is dismissed.

23.In light of our above analysis of the case as presently stated in the Form 86 and the dismissal of the summons of 31 May 2018, there is no reasonably arguable basis for a case of breach of Section 19 to be made out.

24.As we said above, the case based on Article 62(6) is a non-starter.

25.On the question of standing, we agree with the judge’s observations at [10] of the Decision.

26.The relevant law on standing was discussed in Re Wong Chi Kin, CACV 80/2014, unreported, 26 September 2014, at [11] to [18].  We would only cite [11] from that judgment:

“ … Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 at p.773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.”

27.The applicant relied on the fact that the legislator elected by him was impeded by the alleged conducts.  He had not disclosed the identity of the legislator elected by him.  Nor did he put forward any facts to support that the legislator had actually been impeded in the way as suggested by him.  Nor do we have any evidence to suggest that such a legislator (if there was one) could not have come forward to make a proper challenge.  We are not satisfied that the applicant’s interest was directly affected.

28.In the circumstances, we do not see any reason to hold that the applicant has the requisite standing to mount an application for judicial review based on an ill-conceived and unsubstantiated case of molestation of an unidentified legislator purportedly elected by him.     

29.We would also echo the observations of Zervos J in Kwok Cheuk Kin v Secretary for Transport and Housing HCAL 136/2015, 4 January 2016 at [97] in rejecting the applicant (who happens to be the same person as the present applicant) as having sufficient interest to bring the application in that case:

“ As I said, it is important that the citizen is given access to the courts to address any situation where the excess or misuse of power affects the public generally so that the courts can perform its function to protect the rule of law. But it seems to me that for the courts perform this important function, an application for a proposed judicial review should be done on a clear and proper basis. As illustrated by this case, a proposed judicial review has been initiated by somebody without a full and proper appreciation of the issues and that is reflected by the scant and changing factual basis and grounds for judicial review. That is why it is an important requirement to show that the necessary legal criteria have been satisfied in order for a person to bring judicial review proceedings in the subject under the challenge. A person who satisfies the legal criteria will have a full and proper appreciation of the subject to be able to accurately set out the background facts and articulate appropriately grounds of complaint for judicial review.”

30.The history of this case again illustrates the problems caused by an ill-informed applicant, not properly equipped with the knowledge on the relevant law and facts of the case and who simply has no direct interest in the application for leave for judicial review.  Valuable public resources that could have been deployed on other more meritorious causes have to be diverted to process this case.  Whilst access to court is important, the prevention of abuse of the court process is no less important.  The limitation on standing in judicial review applications should be upheld to prevent such abuse. 

31.For these reasons, we dismiss the appeal. 

JCC Cheung & Co, for the applicant

The 1^st putative respondent acting in person

Ms Eva Sze, Senior Government Counsel, of the Department of Justice, for the 2^nd putative respondent