莊裕安 v. 終審法院司法常務官 and Another
Read the full judgment text of CACV 216/2019 on BabelCite. This Court of Appeal judgment was delivered on 26 March 2020 before Lam VP, Au JA and B Chu J.
Administrative law – judicial review – leave to apply for judicial review – Hong Kong Court of Final Appeal Rules, Cap 484, Rule 7 – Registrar's Rule 7 Summons – whether Registrar under duty to give reasons – whether judicial review amenable to Rule 7 Summons – whether related proceedings give rise to automatic recusal – whether litigant entitled to choose foreign judge – whether application academic where Appeal Committee has dismissed underlying leave application – judicial independence and bias – academic challenge – Applicant, a litigant in person, sought judicial review of the Registrar's decision to issue summons under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484, calling upon him to show cause why his leave applications in FAMV 98/2018 and FAMV 3, 4, 12, 28, and 38/2016 should not be dismissed – Applicant complained the Registrar was under a duty to give reasons, that the Judge below should have recused himself, that he was entitled to be heard by an English-speaking foreign judge, and that a letter from the Court of Final Appeal dated 27 December 2018 was amenable to judicial review – held, the Registrar's decision to issue a Rule 7 Summons is an intermediate or procedural decision not amenable to judicial review – no duty to give reasons imposed by the CFA Rules – court followed 鄧淑珍v終審法院司法常務官, CACV 579/2018, [2019] HKCA 413 – the fact that the Judge below had previously dealt with related proceedings and ruled against the Applicant did not constitute valid ground for recusal – court followed 莊裕安 v高院上訴排期主任吳素蘭, CACV 31/2018, [2018] HKCA 502 – no entitlement to demand hearing by English-speaking foreign judge – letter of 27 December 2018 plainly not amenable to judicial review – where the Appeal Committee had confirmed the Registrar's view and dismissed the underlying leave applications, the question was academic – court applied principle in Re Ng Kin Wo Johnny, HCAL 114 & 115 of 2010 and Re Moshsin Ali, [2018] HKCA 549 that courts will not entertain judicial review of prior decisions overtaken by higher-level decisions – both appeals dismissed – no order as to costs as putative respondents did not attend the hearing.
Legal issues: Whether the Judge below should have recused himself · Whether the Registrar was under a duty to give reasons for issuing a Rule 7 Summons · Whether the letter of 27 December 2018 from the Court of Final Appeal could be the subject of judicial review · Whether the Applicant was entitled to insist on being heard by an English-speaking foreign judge · Whether the application for judicial review was academic
Outcome: Both appeals (CACV 216/2019 and CACV 217/2019) are dismissed.
Cited by 5 cases · Cites 16 cases
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CACV 216/2019 & CACV 217/2019 [2020] HKCA 177 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 216 OF 2019 (ON APPEAL FROM HCAL 25/2019) ________________________
________________________ AND IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 217 OF 2019 (ON APPEAL FROM HCAL 1699/2018) ________________________
_______________________ (Heard together) Before: Hon Lam VP, Au JA and B Chu J in Court Date of Hearing: 17 December 2019 Date of Judgment: 26 March 2020 ________________ J U D G M E N T ________________ The Court: 1.This is an appeal by the Applicant against the decision of Chow J (“Judge”) of 26 April 2019 dismissing the Applicant’s applications for leave to apply for judicial review in HCAL 1699/2018 and HCAL 25/2019 and two summonses issued respectively therein on 24 September 2018 and 14 January 2019. 2.As the Applicant has indicated that he is well conversant with the English language and he is seeking an order for all future hearings to be fixed before an English speaking foreign judge, this judgment is written in the English language. The applications before the Judge 3.As seen in paragraph 1 of the Judge’s decision, there were 4 applications before the Judge. To summarise, the Applicant’s applications before the Judge concerned the questions as to (i) whether the Registrar of the Court of Final Appeal (“Registrar”) ought to have given reasons in issuing a summons under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484 (“CFA Rules”), (ii) whether the Judge should have recused himself and/or ordered the Applicant’s applications be dealt with by an English speaking foreign judge, and (iii) whether the letter of 27 December 2018 from the Court of Final Appeal ought to have informed him of the composition of the Appeal Committee. CACV 216/2019 (in relation to HCAL 25/2019) 4.In this matter, the Registrar issued a summons under Rule 7 of the CFA Rules (“Rule 7 Summons”) on 7 December 2018 to the Applicant calling upon the Applicant to show cause before the Appeal Committee why his application for leave to appeal in FAMV 98/2018 should not be dismissed. 5.After the issue of the Rule 7 Summons, there were 3 letters dated 14, 19 and 24 December 2018 sent by the Applicant to the Court of Final Appeal which then sent a letter of reply dated 27 December 2018, stating that the Court of Final Appeal had received the letters from the Applicant and would respond as soon as possible. 6.Before waiting for a substantive response or the decision of the Appeal Committee, on 4 January 2019, the Applicant lodged his Form 86 for leave to apply for judicial review in respect of (i) the procedure relating to the issue of the Rules 7 Summons and (ii) the letter dated 27 December 2018. 7.It was the Applicant’s complaint in his Form 86 that the Registrar did not give any reasons in issuing the Rule 7 Summons, and that the Registrar was under a duty to do so. As for the letter dated 27 December 2018, it was the Applicant’s complaint that, notwithstanding his repeated enquiries, there was no response in the letter as to who would be the judges appointed in the Appeal Committee to deal with his matter. The Applicant’s enquiries arose out of his concern that there would be conflict of interest as the Court of Final Appeal and 3 permanent judges were named as defendants in HCA 244/2017 (the underlying action which led to CACV 185/2017, FAMV 98/2018, HCAL 25/2019 and his present appeal). 8.In the Applicant’s Notice of Appeal, he seeks the following orders:
9.There are 8 grounds of appeal in the Applicant’s Notice of Appeal (“Grounds”). None of those Grounds really touch on the letter dated 27 December 2018 and in any event, insofar as that letter is concerned, as pointed out by the Judge in paragraph 13 of his decision, this letter is plainly not something which can form the subject matter of a challenge in an application for judicial review. The Judge is clearly right. 10.Further, the Appeal Committee subsequently dismissed the Applicant’s leave application in FCMV 98/2018 on 14 August 2019. This has led to the Applicant applying for leave for judicial review in HCAL 2941/2019, which was dismissed by the Judge on 14 November 2019. The Applicant has now lodged an appeal against that decision in CACV 552/2019. Hence, the composition of the members of the Appeal Committee and the decision by the Appeal Committee in FAMV 98/2018 should now be matters to be raised in his appeal in CACV 552/2019, and not in the present appeal. 11.Grounds 1, 2, 5, 6 and 7 concern complaints that the Judge had failed to uphold judicial independence and/or neutrality and/or objectiveness by firstly refusing to recuse himself notwithstanding the Judge had dealt with previously two related applications HCA 244/2017 and HCAL 950/2017 respectively in 2017 and 2018, and secondly by referring to the directions made by Cheung JA in the Applicant’s appeal CACV 185/2017 ( in relation to HCA 244/2017) prior to his decision on 24 January 2018 in relation to HCAL 950/2017. 12.As the Judge had pointed out, the fact that he had dealt with some related proceedings including HCA 244/2017 and HCAL 950/2017 and had ruled against the Applicant was not a valid or sufficient ground in support of an application that the Judge should not hear the present applications. 13.As further pointed out by the Judge, the Applicant’s similar complaint was rejected by the Court of Appeal in 莊裕安 v高院上訴排期主任吳素蘭, CACV 31/2018, [2018] HKCA 502, where it was held at paragraphs 9 and 10, as follows:
14.In light of the above, Grounds 1,2,5,6 and 7 must fail. Further, the Applicant has no right to insist that his application or appeal shall be heard by English speaking foreign judges. He is unable to pintpoint any actual or perceived bias on the part of the bilingual judges by reference to the reasoned judgments of those judges given against him. The mere fact that the decisions went against him cannot be a proper ground for recusal. 15.The complaints in Ground 3 and Ground 4 appear to be in relation to an allegedly missing affirmation in HCAL 950/2017 and the Judge’s decision in HCAL 950/2017. The Applicant stated that in August 2018 he had made a report to the Wanchai Police Station regarding the allegedly missing affirmation he filed with the High Court in 2017 and that the matter was under investigation. Having heard the Applicant, we are quite satisfied that these matters are irrelevant to the Applicant’s present appeal. 16.Finally, Ground 8 concerns the Applicant’s complaint that the Judge had ignored his reasons for applying for leave for judicial review and that those reasons were still valid. 17.In relation to the Applicant’s challenge to the procedure adopted by the Registrar in issuing a Rule 7 Summons on 7 December 2018 without giving any reasons in support of his opinion that the application in FAMC 98/2018 disclosed no reasonable grounds for leave to appeal, the Judge essentially gave 3 reasons as follows:
18.The Applicant had not in his Skeleton Arguments set out any grounds as to how the Judge had erred in his above reasons. Having considered the Applicant’s arguments, we find no merits in the Applicant’s appeal. CACV 217/2019 (in relation to HCAL 1699/2018) 19.In HCAL 1699/2018, the Registrar had issued a Rule 7 Summons to the Applicant calling upon the Applicant to show cause before the Appeal Committee why his applications for leave to appeal in FAMV 3, 4, 12, 28, and 38/2016[1] should not be dismissed. 20.It was again the Applicant’s complaint in his Form 86 that the Registrar did not give any reasons in issuing the Rule 7 Summons, and that the Registrar was under a duty to do so. 21.The Applicant now seeks the same orders set out in paragraph 8 above. 22.There are again a total of 8 grounds in the Applicant’s Notice of Appeal which are almost identical to those set out in the Applicant’s Notice of Appeal in CACV 216/2019. 23.As mentioned earlier, Grounds 1, 2, 5, 6 and 7 concern complaints that the Judge had failed to uphold judicial independence and/or neutrality and/or objectiveness by firstly refusing to recuse himself notwithstanding the Judge had dealt with previously two related applications HCA 244/2017 and HCAL 950/2017 respectively in 2017 and 2018, and secondly by referring to the directions made by Cheung JA in the Applicant’s appeal CACV 185/2017 (in relation to HCA 244/2017) prior to his decision on 24 January 2018 in HCAL 950/2017. 24.We reiterate that the fact that the Judge had dealt with some related proceedings including HCA 244/2017 and HCAL 950/2017 and had ruled against the Applicant was not a valid or sufficient ground in support of an application that the Judge should not hear the present applications. 25.We repeat what was said earlier in paragraphs 13 to 18. In addition to the 3 reasons set out earlier in paragraph 18, the Judge had pointed out that the Appeal Committee had confirmed the Registrar’s view that the applications in FAMV 3, 4, 12, 28, and 38/2016 disclosed no reasonable grounds for leave to appeal, and accordingly dismissed them, and thus the question of whether the Registrar ought to have given reasons for his opinion that the applications disclosed no reasonable grounds for leave to appeal was academic. 26.We agree with the reasons given by the Judge. It is a trite and well-established principle in public law that the courts will not entertain a judicial review in respect of a prior decision which has been overtaken by a decision of a higher level: see Re Ng Kin Wo Johnny HCAL 114 & 115 of 2010, 18 Nov 2010; Re Moshsin Ali [2018] HKCA 549. Having considered the Applicant’s arguments, we find no merits in the Applicant’s appeal. Conclusion 27.In the above circumstances, we dismiss both appeals. As the putative respondents did not attend the hearing, we make no order as to costs.
The applicant acting in person [1] Against the decisions in respectively CACV 62/2014, CACV 115/2014, CACV 46/2014, CACV 225/2013 and CACV 95/2016 |
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Further hearings and rulings under CACV 216/2019