Ng Moon Lam v. The Ombudsman

HCAL 3648/2019

[2020] HKCFI 1386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 3648 OF 2019

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BETWEEN

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J U D G M E N T

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Introduction

1.This is the application of the Applicant (“A”) for leave to apply for judicial review out of time against the decision (the “Decision”) of the Putative Respondent (“PR”) dated 14^th May 2018.  A has filed an affirmation[1] in support of his application.

2.In brief, A sustained personal injuries in a traffic accident when he was on board a double-decker bus as a passenger. Although he eventually reached a settlement with the bus company and received a payment from the insurance company, he was aggrieved by the fact the police investigation did not result in any prosecution against the bus driver. Therefore, he lodged a complaint with the Complaints Against Police Office (“CAPO”) against the police officers concerned alleging that they were biased in the investigation.  However, CAPO’s findings, which were endorsed by the Independent Police Complaints Commission (“IPCC”), were such that most of A’s allegations were either classified as “No fault” or “Unsubstantiated”. Being dissatisfied, he requested CAPO to provide him with the classifications and reasons for the classifications of his complaints as contained in its investigation report to IPCC.  After his request was refused by CAPO, A filed a complaint against CAPO with PR’s office.  However, PR agreed with CAPO’s view that the information sought was not disclosable according to the Code on Access to Information (“The Code”).  Since then, A had engaged in a prolonged exchange of correspondence with PR’s office which eventually leads to the present application. 

3.The Decision that A seeks to challenge is stated in the Form 86 as follows:

“The Ombudsman’s endorsement, given on 14 May 2018, of the Complaints Against Police Office’s use of the Code on Access to Information to restrict A’s statutory right of access to information.”

4.A’s grounds of challenge are that:

(1)  CAPO’s use of paragraphs 2.9(c) and 2.10(b) of the Code to restrict the application’s statutory right of access to information was in breach of paragraph 1.7 of the Code and also did not meet the requirement of the respective paragraphs invoked.

(2)  Section 24(1) of the Independent Police Complaints Council Ordinance (“IPCCO”), Cap 397, grants complainants a statutory right of access which covers all the classifications and all the reasons for the classifications where there is more than one allegation.  Paragraph 1.7 of the Code precludes the Code from being used to restrict statutory rights of access to information.

5.In terms of relief, A seeks:

(1)  an order to quash the aforesaid endorsement; and

(2)  a declaration that CAPO must notify him of all the classifications and reasons for the classifications endorsed by the IPCC in his complaint case.

6.Upon the invitation by this Court, PR appeared at the hearing to make an initial response to A’s application.  Counsel for PR, Mr Lam and with him, Ms Ng), oppose the application on two main grounds:

(i)  the extension of time should not be granted, as there is undue delay in A’s application and he has failed to give any good reasons for it: s 21K(6), High Court Ordinance; and Order 53 Rule 4(1), Rules of the High Court (“RHC”); and

(ii)  A’s proposed judicial review has no reasonable prospect of success: Po Fun Chan v Winnie Cheung[2].

Chronology Of Events

7.The following chronology, which is largely not in dispute, is based on the documents contained in the hearing bundle (“Document Bundle”) prepared by PR and also the bundle of letters (“Bundle of Letters”) which A submitted the day before the hearing:

(a)  On 14 April 2013, A was injured in a road traffic accident whilst being a passenger on a double-decker bus.  He held the view that the bus driver was responsible.  Nevertheless, the police investigation did not result in any prosecution.

(b)  On 12 March 2014, A lodged a complaint with CAPO against the police officers concerned in the investigation of the accident[3].

(c)  By a letter dated 12^th April 2017, CAPO informed A of the results of its investigation which were endorsed by IPCC[4].

(d)  Being dissatisfied with CAPO’s reply, A by emails dated 10 August 2017[5] and 16 August 2017[6] requested the latter to provide him with “all the information mentioned in s17(2)(c)[7]” of the IPCCO and “not just a summary”.  Specifically, he requested “an authentic version of the classifications and reasons for the classifications contained in the CAPO’s investigation report to the IPCC”. (Bold and italic in original)

(e)  By an email dated 18th August 2017[8], CAPO replied that:

“Please note that the classifications and reasons for the classifications have been provided to you in the letter dated 12 April 2017.

Regarding your request for information of the investigation report that was submitted to the IPCC, I regret that such information could not be disclosed on the grounds of Paragraph 2.9(c) of the Code on Access to Information.” 

(f)  After  repeated complaints and demands to CAPO and IPCC but to no avail, on 9 December 2017 A filed a complaint with PR in respect of CAPO’s refusal[9]. It was complained, among other things, that many of his allegations were missing from CAPO’s investigating findings and he queried the way his allegations were summarized in CAPO’s reply.  He also alleged that the information CAPO provided to him was incomplete.  Towards the end of the letter, he said the following:  

“44. It is noteworthy that neither CAPO nor the IPCC is willing to confirm whether CAPO has made a full disclosure of its investigation findings to the complainant. Their common stance makes one feel that something is amiss.

45. I hope you will look into this matter and determine whether the Code can legitimately be used to bypass a statutory obligation to provide information; and if so, whether it is appropriate to do so in my case, which involves only an ordinary investigation and no sensitive information at all.

46. In any case, I hope you will find out why, having (rightly or wrongly) invoked paragraph 2.9(c) of the Code, CAPO is claiming that it has not withheld any prescribed information.

…” (Bold in original)

A supplemented his complaint to PR by another letter dated 1 January 2018[10].

(g)  Meanwhile, by a letter dated 21 December 2017[11], PR acknowledged the receipt of A’s complaint and informed him that:

“The Ombudsman Ordinance stipulates that this office cannot investigate any action taken by the HKPF except for alleged breach of the Code. Therefore, we have no authority to investigate your complaints against CAPO or the IPCC in handling your complaint (such as improper summary of your allegations, failing to give reasons for its classifications). We also have no authority to adjudicate whether CAPO has violated the IPCCO. You may wish to seek your own legal advice in this regard.”

Further, A was informed that:

“Our inquiry will focus on whether CAPO has acted in accordance with the requirements of the Code when refusing to disclose to you the full investigation report that it submitted to IPCC.”

(h)  During the course of PR’s investigation, in reply to PR’s inquiry CAPO further relied on §2.10(b)[12] of the Code to justify their refusal[13].

(i)  On 14 May 2018, PR wrote to A setting out its investigation results and its finding that CAPO’s refusal was in line with §§2.9(c) and 2.10(b) of the Code.  In relation to A’s complaint that CAPO’s refusal violated s 24(1) of IPCCO, PR reiterated that her office “has no authority to adjudicate whether CAPO’s refusal has violated the IPCCO.”[14]

(j)  Between June 2018 and October 2019, A wrote a number of letters and emails[15] to PR rehearsing his previous complaints and also making various accusations against the case officer who handled A’s complaint on behalf of PR.  During the same period, PR had twice reviewed the Decision[16], one in August 2018[17] and the other in May 2019[18].  On both occasions, however, PR maintained the Decision.   It is important to note that at the last paragraph of the aforesaid letter dated 30 May 2019, A was told specifically that,

“Together with this letter, we have already responded to you five times to explain our stance. To make the best use of our resources, we will not reply to you further if you raise the same issues to us again.”

After that, there were also 6 other reply letters[19] from PR reiterating that she had nothing to add.  

Legal Principles

Nature of judicial review

8.It is trite that the role of the court in a judicial review is not to provide a further avenue of appeal.  Formulation of policies and assessment of evidence are primarily matters for the decision maker (which is PR in this case) and the court should not usurp the latter’s function.  The court’s role is supervisory and it is only concerned with the lawfulness (rather than the merits) of the decision in question.  Therefore, even if the decision is not one which the court might or would have come to, the court would not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision: Television Broadcast Ltd v Communications Authority[20].

Leave application

9.Moreover, only a reasonably arguable claim which enjoys realistic prospects of success should be given leave to proceed.  The requirement for leave to apply for judicial review is an important filter to prevent pubic authorities from being unduly vexed with unarguable challenges and uncertainty as to the validity of their decisions: Po Fun Chan v Winnie Cheung[21].

Standard of review

10.Regarding the standard of review applicable to the present case, since A does not suggest that any human rights are engaged, the test to be applied is the conventional “Wednesbury unreasonableness”.  That is to say, whether the decision maker has failed to take into any matters which he is bound to consider or has taken into account irrelevant matters or that the decision is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at: see Pagtama, Victorina Alegre v Director of Immigration[22]. The threshold is therefore a high one.

Effect of undue delay

11.Application for leave has to be made in a timely fashion.  It is clearly the legislative intent that no application for leave to apply for judicial review can be made after the three-month period unless the Court considers that there is good reason for extending time.  Section 21K (6) provides as follows:

“Where the Court of First Instance considers that there has been undue delay in making an application for judicial review, the court may refuse to grant -

(a)  leave for the making of the application; or

(b)  any relief sought on the application,

if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

12.Order 53 Rules 3(1) and 4(1), RHC read:

“3.  Grant of leave to apply for judicial review

(1)  No application for judicial review shall be made unless the leave of the Court has been obtained in accordance with this rule.

…

4.  Delay in applying for relief

(1)  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

(2)  Where the relief sought is an order of certiorari in respect of any judgment, order, conviction or other proceeding, the date when grounds for the application first arose shall be taken to be the date of that judgment, order, conviction or proceeding.

(3)  …”

Extension of time

13.Moreover, an application for extension of time is a discrete application from the application for leave.  The effect of the Court not granting any extension of time when it is not satisfied that there is good reason for the same is that no application for judicial review can be made in accordance with the rules by virtue of Rule 4(1).  In that event, the Court should not proceed to the next stage of considering if leave should be granted or refused on other grounds: Kwok Cheuk Kin v Leung Chun Ying[23].

14.In AW v Director of Immigration & Anor[24], the Court of Appeal, agreeing with the approach taken in Re Thomas Lai[25], held that what may constitute a good reason for extending time cannot be defined.  In most cases, this would be a “multi-faceted question” the answer to which would depend on the circumstances of each case.  The following factors, which are not exhaustive, are likely to be of significance:

(i)  Length of the delay: Obviously the longer the delay, the more cogent the reason has to be for extending time.

(ii)  Explanation for the delay: While Order 53 rule 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.

(iii)  Merits of the substantive application: Although merits of the challenge of the administrative decision are a significant matter to be taken into account, it is by no means the sole criterion.  Where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be” (Po Fun Chan v Winnie Cheung[26]. An applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case: Law Chun Loy v Secretary for Justice[27].

(iv)  Prejudice: The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(v)  Questions of general public importance: Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.

15.The Court of Appeal, however, stresses that whenever there is a failure to act promptly or within three months, there is “undue delay”.  Therefore, even though the court may be satisfied in the light of all the circumstances there is good reason for that failure, the court still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of undue delay, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.

Consideration

(i)  Whether there is undue delay

16.The Decision under challenge was dated 14 May 2018.  As A is seeking “an order to quash the endorsement”, whether he knows it or not that kind of order is in lawyers’ phraseology “an order of certiorari”.  Therefore, the three-month time limitation started to run from 14 May 2018 and ended by mid-August 2018.  However, A had not made the application for leave until 6 December 2019 which was about 16 months after the Decision. 

17.In the course of his submission on this topic, A sought to explain the delay by saying that the decision which he meant to challenge was not the Decision as stated in his Form 86, but PR’s affirmation of the Decision made after the second reviewed as stated in PR’s letter to him dated 30 May 2019. When A was asked by this court whether he would seek an amendment of the Form 86, he adamantly replied in the negative. 

18.This court did not allow A to proceed the present application on the basis that the decision challenged was the one made on 30 May 2019.  Firstly, the Form 86 (which was in A’s own handwriting) clearly stated that the subject of challenge was the Decision which was made on 14 May 2018.  As a result of what was given, counsel for PR has prepared their response accordingly. Secondly, as Mr Lam submits, PR’s affirmation of the Decision is itself amendable to judicial review.  However, A has never included that affirmation as a subject of challenge in Form 86.  Thirdly, there has been no application for amendment.  Fourthly, even if there were such an application, I would not be inclined to allow it at a stage so late, as the amendment would change the whole legal landscape of the present application and that, as Mr Lam submits, would be unfairly prejudicial to PR.  Fifthly, even if one were to take the starting date to be as late as 30 May 2019, it would still be way out of time.

19.Therefore, there is clearly an undue delay in the present application and the extent of that delay is in any view a very substantial one. 

(ii)  Explanation for the delay

20.As to why A had not sought leave to apply for judicial review immediately or shortly after PR’s second affirmation of the Decision dated 30 May 2019, he said that that was because he had wanted to wait for PR’s reply to his further queries.  A submitted that there was a “breach of procedural fairness” in that PR had failed to answer his queries and his arguments against CAPO’s invocation of the Code.  That, he says, was also a breach of PR’s commitment to “explain our decisions clearly” as advertised in its charter.

21.In deciding whether the above explanations amount to a good reason, I have taken into account the fact that there were reviews of the Decision conducted by PR, one in August 2018 and the other in May 2019.  I consider the reviews to be relevant because the fact that PR was prepared to conduct the reviews might have caused A to hope for a chance of mind on the part of PR.  However, in my judgment it would be unreasonable for A to continue to harbor any such hope after the Decision had been twice affirmed by PR in spite of his repeated representations and protests.

22.After PR’s letter dated 14 May 2018, A had from 3 June 2019 onwards repeatedly rehearsed his disagreement with her findings and conclusions and also criticized the handling of his complaint by the case officer[28]. In response, there had been two lengthy letters from PR refuting his criticisms[29] and giving substantive responses to A’s queries.  PR had also on various occasions stated that her office had nothing to add about the Decision.  Therefore, there had not been any “procedural unfairness” as A asserts.  

23.Based on the above, I am unable to see any good reasons for A’s delay in the present application.  First, as can be seen in A’s letter to PR dated 24 May 2019[30], he was aware that he could seek judicial review of her decision there and then, if he so wished.  Secondly, I accept Mr Lam’s submission that A is not entitled to repeatedly write fresh letters to PR and restart the clock every time PR gave a reply: Asia Master Limited v The Commissioner of Inland Revenue[31]. Thirdly, A had already been informed clearly by PR’s letter on 30 May 2019 that “we will not reply to you further if you raise the same issues to us again.” Fourthly, as evidenced by the subsequent correspondence from 12 June 2019 onwards, PR had told A in no uncertain terms that there would be no change in her stance on the Decision.  Even A admitted, in the course of his submission, that PR had not said or done anything after 30 May 2019 which would make him think that the Decision would be changed.

24.I am of the view that the presence of undue and substantial delay in the present application which is without any good reasons is in itself a sufficient ground for refusing the extension of time sought.  However, for the sake of completeness, I will also briefly address the other factors mentioned in Re Thomas Lai as agreed to by the Court of Appeal in AW v Director of Immigration & Anor.

(iii)  Merits of the substantive application

The powers of Ombudsman

25.The Ombudsman, as a corporation sole, is a statutory creation the functions and powers of which are provided for in s7 of the Ombudsman Ordinance, Cap 397:

“7(1) The Ombudsman may investigate any action taken by or on behalf of—

(a) an organization set out in Part 1 of Schedule 1 in the exercise of its administrative functions; or

(b) an organization set out in Part 2 of Schedule 1 in the exercise of its administrative functions in relation to the Code on Access to Information published by the Government,

…”

26.The Hong Kong Police Force, to which CAPO belongs, is found only in Part 2 of Schedule 1.  Therefore, the Ombudsman is empowered to investigate an action taken by CAPO insofar only as that action is the exercise of its administrative functions in relation to the Code. 

As to Ground (2): s 24 of IPCCO

27.It would be more convenient for me to deal with this ground first.  

28.Section 24 of IPCCO says,

“(1) In the case of a reportable complaint that is not a request for review, the Commissioner must notify—

(a) the complainant; or

(b) (where the reportable complaint was made by a person on behalf of the complainant) the person who made the complaint,

of the classification of the reportable complaint and the reasons for the classification.

…”

29.According to s 3 of IPCCO, “reportable complaint”, for the purpose of the present application, means “a complaint categorized as a reportable complaint in accordance with section 11”.  The relevant parts of s 11 read:

“… a complaint received by the Commissioner must be categorized as a reportable complaint if the complaint—

(a) relates to—

(i) the conduct of a member of the police force while on duty or in the execution or purported execution of his duties, whether or not he identified himself as such a member;

(ii) …

(iii) any practice or procedure adopted by the police force;

(b) is not vexatious or frivolous and is made in good faith;

(c) …

(d) is made by a person (whether on his own behalf or on behalf of a complainant) who has properly identified himself and provided the Commissioner with a means of contacting him; and

(e)  …”

30.In the present case, there is no dispute that A’s complaint to CAPO was a reportable complaint.  

31.A says that his statutory right under s24, IPCCO is not affected by the Code.  As to this, PR has no quarrel.  She agreed as much in her letter dated 14 May 2018 by saying that “Provisions of the Code cannot override any laws.” [32]

32.However, the point which PR has made from her very first letter to A dated 21 December 2017[33], which was also reiterated in her letter dated 14 May 2018, is that she simply has no authority to investigate his complaint against CAPO or the IPCC in handling his complaint (such as improper summary of his allegations, failing to give reasons for its classifications) and that she also had no authority to adjudicate whether CAPO has violated the IPCCO. 

33.As to this, in my judgment PR is plainly right.  A had picked on the wrong person regarding s24 of IPCCO.  For avoidance of doubt, I am not in any way implying what the result would likely to be, had A taken the right person to court.  The point I am making is simply that A has persistently (and, in my judgement, wrongly) demanded PR to do what she cannot not lawfully do.  Had PR acceded to his demand, she would have acted ultra vires.  

34.In the course of submission, A raised the point that PR should not have agreed to take on his complaint, if she had no power to investigate into violations of s 24 of IPCCO.  I can see no merits in this argument.  Firstly, he had already been informed at the outset of the restriction on PR’s power.  Therefore, A could have no cause for complaint regarding the limited scope of PR’s inquiry.

35.Secondly, A had also been told that the inquiry would instead:

“focus on whether CAPO has acted in accordance with the requirements of the Code when refusing to disclose to you the full investigation report that it submitted to IPCC”[34].

As to this, it is important to note that s 9 of Cap 397 gives the Ombudsman a wide discretion regarding whether to undertake an investigation:

“9. Determination of questions relating to Ombudsman’s authority

In determining whether to undertake, continue or discontinue an investigation, the Ombudsman shall, subject to the provisions of this Ordinance, act in accordance with his own discretion; and any question whether a complaint is duly made under this Ordinance shall be determined by the Ombudsman.”

36.As observed by Chu J (as she then was) in Lay Man Yee Mary v Alice Tai (Ombudsman)[35], s 7(1) only authorizes the Ombudsman to carry out investigations; it does not require the Ombudsman to investigate every complaint.  Her ladyship held that the Ombudsman has a discretion to determine whether a complaint has been properly made in accordance with the Ordinance, and to decide whether to undertake, continue or discontinue an investigation. It was also held that the Ombudsman enjoys extensive powers under s 9, including a discretion to decide whether or not to undertake an investigation and also to define the scope of such investigation.  References were made to English case authorities of Re Fletcher’s Application[36] and R v Parliamentary Commissioner for Administration, ex parte Dyer[37] which are about the English equivalent of our s 9.

37.Therefore, PR was entitled to focus her inquiry as she did only on those aspects of A’s complaint as she considered appropriate.

As to Ground 1: alleged breach of the Code

38.Bearing in mind that PR has no authority to look into any alleged violations of s24 of IPCCO, Ground 1 is restricted to whether the alleged non-disclosure by CAPO, if any, is justifiable under the Code. 

39.It would be convenient for me to quote the paragraphs in question here:

LEGAL OBLIGATIONS AND RESTRICTIONS

1.7   The Code does not affect statutory rights of access to information.  Equally the Code does not affect legal restrictions on access to information whether these are statutory prohibitions, or obligations arising under common law or international agreements which apply to Hong Kong. (Emphasis supplied)

MANAGEMENT AND OPERATION OF THE PUBLIC SERVICE

2.9   (a)    …

…    

(c)    Information the disclosure of which would harm or prejudice the proper and efficient conduct of the operations of a department.

INTERNAL DISCUSSION AND ADVICE

2.10   (a)    Papers prepared for, and records of meetings and deliberations of the Executive Council.

(b)   Information the disclosure of which would inhibit the frankness and candour of discussion within the Government, and advice given to the Government. Such information may include –

(i)    records of discussion at any internal government meeting, or at any meeting of a government advisory body;

(ii)   opinions, advice, recommendations, consultations and deliberations by government officials or advisers to the Government.

40.I accept Mr Lam’s submission on the meaning and effect of paragraph 1.7 of the Code in that it does not give rise to any new right but is merely declaratory of any rights which a person may have under any statutes, common law or international agreements.

41.As regards the applicability of paragraphs 2.9(c) and 2.10(b) to the present case, PR had the following to say in her letter dated 14 May 2018[38]:

“11. We have obtained and scrutinized the relevant parts of the investigation report submitted by CAPO to IPCC. We found that the contents therein contain references to information/statements given by witnesses and CAPO’s analysis/opinions on the evidence and your complaint. We agree that those contents would fall under the exemptions granted under paragraphs 2.9(c) and 2.10(b) of the Code. In particular, if it becomes a practice for CAPO to disclose the information or statements given by witnesses during investigations, it may affect the willingness of witnesses in general to cooperate with the police and provide information or assistance in future, which will greatly affect CAPO’s investigation works. As such, we accept HKPF’s explanations (paragraphs 7 to 8 above) for refusing disclosing disclosure of the requested information.” (Emphasis supplied)

42.It is important to note that there was no mention of any finding by PR that there had been a failure to disclose “all the classifications and reasons for classifications”, as A alleges, in relation to his complaint lodged with CAPO.  Instead, PR quoted CAPO’s response to A on 18 August 2017[39] that “it had provided you with the classifications and reasons for classifications for your complaint in its letter on 12 April 217.”[40]  PR found, after having “scrutinized” CAPO’s the investigation report, that what had not been disclosed to A were “information/statements given by witnesses and CAPO’s analysis/opinions on the evidence” and those contents, in her view, were exempted from disclosure under paragraphs 2.9(c) and 2.10(b) of the Code.   In this regard, it is pertinent also to note that A now says he is not seeking to know “who said what in any discussions that might have taken place”. 

43.As regards the exemptions, in my judgment, from a plain reading of the relevant paragraphs of the Code and as a matter of logic, the kind of information to which the exemptions in paragraphs 2.9(c) and 2.10(b) apply is not, as A submits, restricted to “information from within the department” concerned.  Moreover, contrary to A’s submission, the requirement of “frankness and candour” of discussion within the Government is just as applicable to discussions among frontline civil servants as those among government officials at the “top-level”.  A’s submissions to the contrary is not reasonably arguable. 

44.Bearing in mind that CAPO’s investigation report was prepared for IPCC’s internal review and use, I accept Mr Lam’s submission that:

(i)  the reasons for classification in an investigation report would likely set out different and sometimes divergent views of the various officers concerned in the investigation in that some may find in favour of a complainant, some may not;

(ii)  if the discussions among officers are disclosed, there is a real risk that the complainant may condemn those officers who do not speak in his/her favour and may even take actions against them; 

(iii)  as such, there is a risk that the officers concerned may not be willing to speak their minds and this would undermine the quality of their investigation; and

(iv)  even if the officers’ names are redacted, if they know that what they say could be disclosed and may be made public, there is a real probability that they would opt not to be as candid as they could be.  That would also be counter-productive.

The above considerations are plainly relevant and the weight to be attached to each of those are not matters for this court and PR is entitled to come to the view as she did.  As I have said, this court is concerned only with the lawfulness of the Decision, not its merits.

45.Based on the above, in my judgment, it is not reasonably arguable that PR’s application of the relevant paragraphs of the Code and her conclusions in the present case are “Wednesbury unreasonable” in the sense discussed above and thus are not ones which this court could interfere by way of judicial review: cf Andrew Campbell v Parliamentary Ombudsman[41].

46.To conclude, neither of A’s proposed grounds of substantive review has any merits.

(iv)   Prejudice

47.I agree with the submission of Mr Lam that it is difficult to see what real prejudice would be caused to A if he is not permitted to proceed, bearing in mind that the accident occurred back in April 2013 which was more than 7 years before and that he had been able to reach a settlement with the bus company in December 2014. 

48.On the other hand, since March 2014 substantial resources of CAPO, IPCC and the Ombudsman had already been spent on handling A’s various complaints.  I agree with Mr Lam that to allow A to re-open the Decision yet again years after his case has been put to rest is clearly detrimental to good administration of CAPO, IPCC and PR. 

(v)  Public interest

49.With respect, A’s grounds of challenge raise interesting legal issue as to s 24 of IPCCO and the extent of the right of access to the relevant information by a complaint.  Had A acted promptly and targeted at the right party, this case might have served some useful purpose by clarifying the relevant law.  However, the present proceedings are simply not a proper vehicle for this legal issue to be canvassed as A has sued the wrong party who in this case has nothing to do with s24 of IPCCO.    

Conclusion

50.Based on the above, I come to the conclusion that extension of time should not be granted in the present case.  As such, there is indeed no need for me to go to the second stage by considering the merits of the leave application in detail.  However, even if I were wrong on the issue of extension, based on what I have discussed above, I am of the view that A’s grounds for the substantive challenge are not reasonably arguable. 

Costs

51.Mr Lam seeks “indemnity costs” in case A fails in the present application.

52.The relevant legal principles, which are well-known, are as stated in Leung Kwok Hung v President of the Legislative Council (No 2)[42]and applied in Ahmad Ali v Director of Legal Aid[43]and shall not be repeated here. 

53.In the present case, I take into account the following:

(1)  the present application is substantially out of time and is clearly devoid of merits;

(2)  PR attended the leave hearing at the invitation of the court in view of A’s failure set out all the relevant facts in his Form 86 and supporting affirmation;

(3)  in all the circumstances, A has in my view acted unreasonably, given that PR had repeatedly explained to him in detail the limited scope of her statutory powers and her reasons for the Decision but he refused to listen; and

(4)  Counsel for PR has provided substantial and helpful assistance to the court.

In my view, even taken into account the public interest litigation factor this is one of those cases where it would be appropriate to order the applicant to pay the putative respondent’s costs. 

54.I therefore make an order nisi that A shall pay PR’s costs of these proceedings, to be taxed (on a party and party basis) if not agreed.  If neither party applies for a variation within 14 days from the date of his judgment, the order shall become absolute upon expiry of that period.

The Applicant appearing in person

Mr Justin Lam and Ms Euchine Ng, instructed by Kao, Lee & Yip, for the Putative Respondent