Kwok Cheuk Kin v. The Chief Executive of the Hong Kong Special Administrative Region

HCAL 1058/2021

[2021] HKCFI 2357

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1058 OF 2021

________________________

________________________

_______________

J U D G M E N T

_______________

A. Introduction

1.By Notice of Application for Leave to Apply for Judicial Review (“Form 86”) dated 27 July 2021, the applicant (“Mr Kwok”) seeks leave to apply for judicial review.  The proposed respondent is the Chief Executive of Hong Kong (“CE”), Mrs Carrie Lam Cheng Yuet Ngor.

2.In the Form 86, the “judgment, order, decision or other proceeding in respect of which relief is sought” is described (interpreted into English) as:

On 4 December 2020, Chief Executive Carrie Lam made a $550 million funding request to the Legislative Council as the preliminary project fee in the Lantau Tomorrow reclamation project.  It is against the principle of “keeping expenditure within the limits of revenue” under Article 107 of the Basic Law.  With Hong Kong’s fiscal deficit running up to $257.6 billion for the year of 2020-2021, Carrie Lam’s $550 million funding request (being the preliminary project fee in the Lantau Tomorrow reclamation project) is against the principle of “keeping expenditure within the limits of revenue” under Article 107 of the Basic Law.

3.In his supporting affirmation, which essentially repeats the same points as the grounds on which relief is sought, Mr Kwok also specifically requests for the application to be dealt with on a “paper hearing” (that is, not by way of an oral hearing).  Mr Kwok refers to Article 35 of the Basic Law, which provides that Hong Kong residents shall have the right to institute legal proceedings in the courts against the acts of the executive authorities and their personnel.  He says he brings the application as a resident of Hong Kong, and in the public interest.  His expressed hope is that the grant of leave to apply for judicial review would lead to the grant of a certificate of Legal Aid, with the benefit of which Mr Kwok might obtain legal representation to pursue a substantive application for judicial review.

4.However, Mr Kwok’s application seems to me to be fraught with insuperable difficulties.  Those difficulties lead me, in the exercise of my discretion, to refuse leave to apply for judicial review. The application falls to be dismissed.

B.      Putative Respondent’s Stance

5.Since drafting most of this Decision, I have received an unsolicited letter dated 10 August 2021 from the Department of Justice (“DOJ”) on behalf of the putative respondent CE, which also points out certain matters which it is said should lead to dismissal of the application.

6.I have considered those matters, and can touch on them below, but I do not think I needed the letter to reach my conclusion that the current application is wholly without merit, and that leave to apply for judicial review should be refused.

C.      Reasons for Refusal of Leave

7.First, RHC Order 53 rule 4(1) provides that 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. The intended challenge is to the funding request made on 4 December 2020, on a date almost 8 months prior to the date of Mr Kwok’s application in these proceedings.  The application has not been made promptly, nor within three months from the date when grounds for the application first arose.

8.Neither the Form 86 nor the affirmation in support make any request for extending the period within which the application might be made.  Nor does Mr Kwok offer any explanation for the passage of time between 4 December 2020 and 27 July 2021, when the application was launched.  In those circumstances, I do not see there is any good reason for extending the period within which the application can be made.

9.In so saying, I have also taken into account my view of the lack of underlying merits in the proposed application as identified in the following paragraphs.  Independently of the absence of any request for, or offered justification for, an extension of time, there are no matters sufficiently arguable as would justify such an extension.

10.Secondly, it is not clear that the proposed challenge is actually to any “decision” (the subject matter plainly being neither a “judgment, order … or other proceeding”).  That the CE made a funding request to the Legislative Council may evidence that she previously made a decision to make that request.  But the request itself does not seem to me to be a readily reviewable decision, and no information is provided as to when any earlier relevant decision might have been made (though I accept that information may not be readily available when the request was not made until 4 December 2020).

11.Thirdly, a request for funding is simply that, namely a request.  That the request for funding was made to the Legislative Council identifies that it would be that body that makes an actual decision about that funding.  In fact, though Mr Kwok has not said so, it was also that body, the Legislative Council, which on 4 December 2020 did approve the funding request.  Further, as well as what can be seen in public documents, the Form 86 itself identifies that the relevant sum was the preliminary figure only – it was to conduct feasibility studies for the Lantau Tomorrow Vision project – and presumably any proposed subsequent expenditure would also need to be requested and considered and subjected to scrutiny in the context of the budgetary and economic circumstances at the time of such requests.

12.Fourthly, pointing to just one aspect of proposed government spending does not of itself identify or trigger a breach of Article 107 of the Basic Law.  Article 107 provides:

The Hong Kong Special Administrative Region shall follow the principle of keeping expenditure within the limits of revenues in drawing up its budget, and strive to achieve a fiscal balance, avoid deficits and keep the budget commensurate with the growth rate of its gross domestic product.

13.Neither the Form 86 nor the affirmation identify any argument as to why the specific funding request relating to the Lantau Tomorrow reclamation project is what arguably triggered the suggested breach of Article 107.

14.Of course, $550 million is a significant sum of money in the general sense, and I acknowledge that there may be many people who think that sum could be better deployed (or not spent at all).  But, the $550 million sum may not be significant or material against the overall budget figures.  Indeed, public information on budget figures identifies total or proposed government expenditure of $731.1 billion in 2020-21 and $727.8 billion in 2021-22.  Therefore, $550 million is, arithmetically, less than 0.0008% of either figure.  It is a tiny percentage of even the budgeted expenditure specifically on ‘infrastructure’, being $78.3 billion in 2020-21 and $84.1 billion in 2021-22.

15.There must be many other figures of expenditure in the budget, some of them much larger than $550 million, about which there could be argument as to their necessity or appropriateness, and as to whether they might (perhaps more obviously) contribute to a fiscal imbalance or a deficit.  That seems to me to identify the absence of merit of picking on but one (relatively small) aspect of expenditure.

16.If the underlying concern is really about the Lantau Tomorrow Vision reclamation project, and its longer term financial and other costs if fully pursued, I do not think it reasonably arguable that these are proceedings within which to ventilate that concern.  If the underlying concern is simply one as to whether Article 107 has been respected, I do not think it reasonably arguable that is the concern raised by these proceedings as framed.

17.Further, as the DOJ has pointed out in its letter, a similar subject matter and issue relating to the Lantau Tomorrow project has recently been litigated in HCAL 2405/2020.  In his Judgment dated 21 May 2021, Chow J (as he then was) refused leave to apply for judicial review on the grounds that the challenge of the Government’s decision to pursue the Lantau Tomorrow project had no realistic prospect of success and was manifestly without merit.  To seek to reargue that point would be an abuse.

D.      Additional Points

18.I also note the stance taken by the DOJ – though do not need to rely on it for present purposes – that, because Mr Kwok has been bankrupt since 8 July 2020, he lacks standing or competence to bring or continue to pursue unmeritorious judicial review proceedings that may result in adverse costs award which would be passed on to the trustee in bankruptcy.

19.Indeed, Mr Kwok is well-known as a frequent applicant – one might say a serial applicant – for leave to apply for judicial review.  In one recent example, the Court of Appeal expressed the view that the Applicant had no interest over and above that of an ordinary resident that would give him standing to bring a judicial review in that matter: see Kwok Cheuk Kin v Director of Lands [2021] 2 HKC 275 at §134.

20.For another recent example, this application in HCAL 1058/2021 was issued on the very same date as another application issued by Mr Kwok in HCAL 1059/2021, albeit raising a very different point, but in which I refused leave to apply for judicial review in my Decision dated 10 August 2021, [2021] HKCFI 2335.

21.Of course, each case warrants individual scrutiny and will be determined on its own merits.  But, this particular application strikes me as being one driven by a personal dissatisfaction with a political, economic and/or socio-economic decision relating to a particular proposed infrastructure project, and is perhaps typical of an attempt to seek recourse from the Court for what is in reality a political, economic or socio-economic grievance.

22.I suppose it can be noted that people sometimes turn to the Courts when they feel that they cannot seek effective redress through the political system.  But that does not make the Court the proper arbiter of political, economic or socio-economic disputes or differences.

23.Another problem with asking the Courts to address what are really non-legal questions is that such applications potentially divert judicial resources from being more appropriately and timeously deployed in cases which properly raise meritorious legal questions for determination.

E.      Conclusion

24.As stated, this particular application was also launched long out of time, without any explanation being offered for the delay, and in circumstances where the underlying merits do not seem to me to justify an extension of time or the grant of leave to apply for judicial review.

25.Therefore, leave is refused, and the application is dismissed outright.

26.For the avoidance of doubt, despite receiving the DOJ’s letter mentioned above, I have essentially dealt with this application on the ex parte basis on which it was made, and I make no order as to the costs of the application.

The applicant acting in person