蘇書幼 v. 律政司 and Others

HCAL 150/2023

[2023] HKCFI 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 150 OF 2023

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D E C I S I O N

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A.  Introduction

1.By a Form 86 filed on 2 February 2023, the Applicant seeks leave to apply for judicial review. As I understand it, the Applicant’s complaints arise from a District Court personal injury case in DCPI 617/2022 (“PI Action”), and the intended challenge is against an Order striking out the PI Action.

2.The short answer to this application is that such a challenge is to a decision which is not amenable to judicial review, and any appropriate remedy would lie in an appeal, which it seems the Applicant has in any event sought to bring.

B.  Background to Intended Challenge

3.The Applicant is the plaintiff in the PI Action. She claimed against the Correctional Services Department (“CSD”) for the ill treatment she says she received while imprisoned in 2001. As the action number identifies, the PI Action was raised more than 20 years after the event – and where the limitation period for personal injury actions is usually 3 years.

4.The Applicant entered Hong Kong illegally in around 2001, when she was pregnant. She was convicted of unlawfully remaining in Hong Kong and was sentenced to 6 months’ imprisonment in June 2001.

5.She claimed that she was ill treated by CSD whilst remanded, resulting in her giving birth to a mentally retarded baby. She said the 6 more children she gave birth to in the years followed were also born with a disability or died at some point due to the ill treatment she received while imprisoned.

6.Apparently, the PI Action was struck out by the Order of a Master made on 7 December 2022.

7.The Applicant acts in person and both the Form 86 and the supporting affirmation are home-made. Reading all the documents supplied by the Applicant in support of this application, it appears that her complaints are that (a) the CSD, the defendant in the PI Action, had failed to comply with the time table set by the court in filing and serving on the Applicant various documents; and (b) the CSD staff had conducted themselves improperly with a clerk of the District Court.

8.The Applicant said that there was a clear court rule requiring the CSD to file and serve a defence within 14 days. But rather, the CSD filed a summons dated 19 April 2022. The Applicant did not say what that summons entailed, but it seems likely that it was a summons issued by the Department of Justice (“DoJ”) on behalf of the CSD to strike out the PI Action.

9.It appears that the striking out summons was heard on 25 July 2022 and then 7 December 2022, on which day the Master ordered the Applicant’s PI Action to be struck out.

10.The Applicant says that the Master directed the CSD/DoJ to draft the order made in the 25 July 2022 hearing and the 7 December 2022 hearing respectively, but the CSD/DoJ failed to do so. Amongst the documents supplied by the Applicant is an Order dated 25 July 2022 and sealed on 22 August 2022. There is also a letter dated 30 December 2022 issued by the DoJ to the Applicant, saying that the former had already supplied the draft order for the 7 December 2022 hearing to the court and should await the court’s reply.

11.There were also several letters issued by the Applicant addressing the District Court, chasing for the written decision of the striking out summons. By letter dated 20 January 2023 issued by the Master, she said an oral decision had been given at the conclusion of the 7 December 2022 and the Applicant could apply for the transcripts of the hearing. Therefore, it appears that the Master was not minded to give a written decision.

12.The Applicant says she has already appealed to the Court of Appeal. Indeed, amongst the documents she supplied is a summons filed on 20 December 2022 in CAMP 541/2022 seeking leave to appeal against Master Yeung’s order made on 7 December 2022, out of time.

C.  No Merit in Application

13.The Applicant’s complaints are not properly the subject of judicial review. Non-compliance with court directions in the PI Action would fall first to be dealt with by the Master or Judge seized of the matter and then by way of appeal, if appropriate (which route has apparently already been taken by the Applicant).

14.That the Applicant has sought to appeal – albeit out of time – also shows that there is an available alternative remedy, which is a further reason why any challenge by way of intended judicial review is inappropriate.

15.As for the alleged “improper conduct” between the CSD/DoJ and the clerk of Master Yeung, the Applicant says she saw CSD/DoJ handed to the clerk a folded paper which she thought to be a cheque. She also alleges that the clerk adopted a somewhat different attitude to her when compared with CSD/DoJ. Such an allegation is not about an administrative decision or action which could properly form the target impugned by way of judicial review.

D.  Conclusion

16.The Applicant has failed to raise any matter properly the subject of judicial review. There is no arguable ground of challenge with any reasonable prospect of success.

17.I dismiss the application, with no order as to costs.

E.  Postscript

18.On 20 March 2023, the Applicant was sent by post notice that this Decision would be handed down on 24 March 2023. In response, the Applicant wrote to the Court making, with respect, what seem to me to be illogical and/or internally inconsistent comments:

(1)  She asked for the case to be “stayed”, but at the same time asked for a hearing to be fixed.

(2)  She stated that the case is very serious and that the Court has taken too long to respond, but at the same said that the decision on 20 March 2023 to hand down this Decision on 24 March 2023 left too short a time in between.

19.In the letter, the Applicant also said that she would report the matter to the ICAC and the Police if the Court hands down the Decision as scheduled and notified.

20.For the substantive reasons I have already given above in dismissing the application for leave to apply for judicial review, I also see no reason why the case should be stayed, nor why a hearing not previously requested should now be fixed, nor any reason to delay handing down of this Decision.

The applicant, acting in person