Tam Sze Leung and Others v. Commissioner of Police

HCAL 191/2021

[2022] HKCFI 309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 191 OF 2021

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submission:  20 January 2022

Date of Hearing:  25 January 2022 (vacated)

Date of Ruling: 25 January 2022

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R U L I N G

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1.In my Judgment dated 30 December 2021, I held that the No Consent Regime (as defined in the Judgment) as operated (a) is ultra vires sections 25 and 25A of OSCO, (b) not prescribed by law and (c) disproportionately interferes with rights, and in particular to the right to the use of property.

2.However, I granted no specific relief and made no order resolving the applications.  Instead, I invited short written submissions to be followed by a short oral hearing, to address the particular relief which should be granted so as to remove or resolve the constitutional problems I identified.  I also reserved the question of any consequential matters and costs to written submissions.

3.Now, by summons dated 19 January 2022 (“Summons”), the Commissioner seeks an extension of time for the parties to file any notice of appeal in respect of the Judgment to 28 days from the date of the Court's decision on relief, costs and consequential matters.

4.The primary stance taken by the Commissioner is that, where the issue of relief has not been resolved and no order for relief has been granted, the time for filing of any notice of appeal has not begun.  I agree.  In those circumstances, no extension of time is either necessary or appropriate.

5.Nonetheless, given the importance of the constitutional issues involved and to avoid unnecessary arguments, the Commissioner sought the Applicants’ consent to extend time to appeal, which was not given.  However, the Applicants have confirmed that they remain effectively neutral to the merits of the application, even though they cannot consent.  The Applicants sought to be excused from attendance at the hearing of the Summons.

6.On that basis, I directed the hearing fixed for 25 January 2022 to be vacated, and that I would deal with the Summons on paper.

7.The Commissioner seeks the extension of time to appeal out of an abundance of caution.  But, as stated, I do not think there is need for any such caution.  Whilst I have already ruled on the legal questions raised by the grounds of judicial review advanced on behalf of the Applicants, I have in effect adjourned the hearing for further submissions on appropriate relief, consequential matters and costs.  There is no relevant final form of order made, from which any appeal might yet lie.

8.In those circumstances, I do not think it would be correct to make an order as sought in the terms of the Summons.  Therefore, I make no order on the Summons, including no order as to costs.

9.However, in case I am wrong on that point, I would make clear that I accept that the overall justice of this case would clearly justify an extension of time to appeal until 28 days after the orders for specific relief, any consequential matters and costs have been granted.  Had I thought it necessary for there to be an extension of time if an appeal were to lie, I would certainly have granted it.

Mr Peter Dong, instructed by the Department of Justice, for the putative respondent

Judge of the Court of First Instance