Coomber, Peter John v. Rita Lau Ng Wai-lan, Mrs Chairman, Public Service Commission

HCAL 922/2022

[2023] HKCFI 1330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 922 OF 2022

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D E C I S I O N

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A.  Introduction

1.The Applicant is – as he is fond of saying – a forensic analyst.  He, no doubt, has an eye for the detail.  But, if a person focuses so much on the small details that he loses sight of the bigger picture, it is sometimes said that the person ‘cannot see the wood for the trees’.

2.By letter 25 July 2022, the Applicant made a complaint to the Public Service Commission (“PSC”) against the Judiciary Administrator (“JA”) under the subject of “serious misconduct by a senior civil servant”.  By reply email dated 3 and 8 August 2022, the PSC refused to pursue the matter further on the basis that the person the subject of complaint is a judicial officer and matters pertaining to judicial officers are outside the statutory remit of the PSC.

3.By a Form 86 filed on 13 September 2022, the Applicant sought leave to challenge the PSC’s refusal.  The relief sought was described as “Order of Mandamus and Declaration”.  The Chief Executive of the HKSAR (“CE”) and the Commissioner of Police (“CP”) were named as interested parties.

4.I gave directions for the (then putative) respondent (“Chairman of the PSC”) to file an initial response, and for the Applicant to file a reply.  Both parties did so within the deadline imposed by the Court.

5.Having considered those materials then available to the Court, I granted the Applicant leave to apply for judicial review on the papers.  I however refused the grant of the interim relief sought by the Applicant.

6.The Applicant filed the Originating Summons Form 86A on 20 March 2023.  Though the grounds of the application there stated are the same as those in the Form 86, the Originating Summons seeks relief wider than that sought in the Form 86, against or in relation to persons who are not the respondent Chairman of the PSC.  I shall return to this point below.

7.I subsequently fixed the substantive hearing of the application for judicial review for 8 May 2023. At that hearing, the Applicant appeared in person, and made full and courteous submissions.

8.The Chairman of the PSC was represented by Mr Mike Lui of Counsel.  Mr Lui also represented the interested parties, the CE and the CP, for reasons which will become evident.

9.At the end of the hearing, I reserved my decision to be handed down later.

10.This is my Decision.

B.  Background and Wider Context

11.Strictly, I do not think it necessary for the purpose of resolving the real question in these judicial review proceedings to delve deeply into matters of history.

12.However, partly because the Applicant himself has sought to place so much emphasis on the background and wider context leading up to the matters giving rise to these particular proceedings, I will set out some of the history in some detail.  In doing so, I will offer some comments which might assist the Applicant in placing the details in a more logical bigger picture, and help to debunk the idea that the Applicant is, as he suggested, the subject and victim of “a massive conspiracy by the Hong Kong Government”.

13.As stated, the Applicant is a forensic analyst. He apparently worked as a consultant to the Police, at times working with a Superintendent Brian Heard (“Mr Heard”).

14.In 2001, the Applicant was charged in District Court criminal proceedings, DCCC 328/2001, with one count of conspiracy to cause a false representation to be made in documents furnished to an immigration officer, contrary to sections 42(1)(b) and 42(4) of the Immigration Ordinance Cap 115 and sections 159A and 159C of the Crimes Ordinance Cap 200.  The Applicant had two co-defendants: one was Mr Heard, and the other was a Mongolian woman (the then girlfriend of the Applicant).

15.At the trial of DCCC 328/2001 in August 2001, the Applicant and his co-defendants were all legally represented.  Although ‘not guilty’ pleas had originally been entered by all three, the Applicant and Mr Heard decided to plead ‘guilty’ to the charge on the 11^th day of the trial (and the charge was dropped against the third defendant).  Therefore, the Applicant and Mr Heard were convicted on their own pleas of ‘guilty’, and each was sentenced to a term of six months’ imprisonment, which was served.

16.Apparently, after serving his sentence, the Applicant left Hong Kong for a while.  However – some four years after the trial, the guilty plea, and the conviction and sentence – the Applicant and Mr Heard filed an application dated 13 July 2005 (“CFA Leave Application”), seeking leave to appeal to the Court of Final Appeal (“CFA”) against their criminal conviction in DCCC 328/2001.  The CFA Leave Application was assigned the case number FAMC 56/2005.

17.The Applicant and Mr Heard were not legally represented when they made the CFA Leave Application, which was therefore prepared by themselves.  They sought to rely on the ground of substantial and grave injustice, and argued that they were innocent of the charge, and did not have a fair trial.  They rehearsed evidence which they believed demonstrated innocence, and they made allegations that there was “dishonesty” on the part of the ICAC and “gross negligence” on the part of the Prosecution.

18.On 18 July 2005, the then Acting Registrar of the CFA (“Registrar Au-Yeung”) issued a summons under Rule 7(1) of the Hong Kong Court of Final Appeal Rules Cap 484A (“CFA Rules”), directing the Applicant and Mr Heard to file written submissions on or before 15 August 2005, to show cause before the Appeal Committee of the CFA as to why the application should not be dismissed.

19.On 8 August 2005, the Applicant and Mr Heard filed their written submissions.

20.On 27 September 2005, the Appeal Committee – comprising Li CJ (as he then was), Bokhary PJ (as he then was) and Ribeiro PJ – dismissed the CFA Leave Application under Rule 7(2) of the CFA Rules, on the ground that it disclosed no reasonable grounds for leave to appeal.  This is reflected in the sealed order of that date (“CFA Order”), which was sent to the Applicant and Mr Heard under cover of a letter of the same date.

21.It is trite that the effect of section 18(3) of the Hong Kong Court of Final Appeal Ordinance Cap 484 (“HKCFAO”) is that the decision of the Appeal Committee reflected in the CFA Order was final and not itself subject to any further appeal.

22.As is typical for an application dismissed under Rule 7 of the CFA Rules, on the basis that no reasonable grounds for leave to appeal have been disclosed by that application, there are no written reasons for the CFA Order.  Therefore, it is not known whether the application was dismissed because the CFA decided that (1) the CFA had no jurisdiction or power to deal with an appeal direct from the District Court, or (2) the significant delay in seeking leave to appeal was fatal, or (3) there were no reasonable grounds on the merits of the proposed appeal, or (4) some combination of those three.  However, as the dismissal was for the failure to disclose reasonable grounds – as opposed to the alternatives in Rule 7 of being frivolous or failing to comply with the CFA Rules – it seems the dismissal must at least have included consideration of the merits of the proposed appeal.

23.But it also seems to be clear that an intended appeal from the conviction and sentence in DCCC 328/2001 did not actually lie direct to the CFA, and ought to have been pursued to or in the Court of Appeal (“CA”): see section 82 of the Criminal Procedure Ordinance Cap 221 (“CPO”) and section 31 of the HKCFAO.  Nevertheless, the Applicant says that it was only many years later when he learned of or realised this point.

24.Whereas, in the meantime, the Applicant and Mr Heard sought to re-open matters in the CFA.  Though I may not have been shown all relevant correspondence, it seems the attempt to re-open matters was not at first pursued with alacrity or any great sense of urgency, as there apparently followed another gap of about 5 years.

25.On 12 May 2010, they faxed a letter to the CFA, which was passed to Chan PJ for his consideration and directions.  By letter dated 25 May 2010, headed with the reference FAMC 56/2005, the Applicant and Mr Heard received Chan PJ’s directed reply as follows:

1.  Your previous application for leave to appeal to this Court under FAMC 56/2005 (arising out of your conviction under DCCC 328/2001 upon your own plea of guilty) was dismissed by the Appeal Committee under its Order made on 27 September 2005 pursuant to the Rule 7 procedure.  You were duly informed of the result on the same date.

2.  As decided by the Appeal Committee in Chow Shun Yeung v. Wei Pih Stella (2003) 6 HKCFAR 299, the said Rule 7 procedure permits the Appeal Committee to consider and determine leave applications falling within the Rule on paper without an oral hearing.

3.  By virtue of Section 18(3) of the Hong Kong Court of Final Appeal Ordinance, such decision of the Appeal Committee shall be final and not subject to appeal.

4.  In the premises, you are purported filing of a “Notice of Motion” and “the Amended Application for Leave to Appeal” last August and recently amounted to an abuse of the Court’s process and the Registry was directed not to accept your filing of the same.

5.  If you still insist on leaving any further documents at the Registry or the Information Desk of the Court purportedly seeking to re-open the dismissed leave application in whatever form or way, such documents will not be placed on the court file and no action will be taken in respect thereof.

The Court and the Registry will not engage in further correspondence with you in relation to your purported attempt to re-open the leave application.

26.Nevertheless, over a further 7 years later, the Applicant and Mr Heard attempted to lodge further documents with the CFA Registry on 21 July 2017.  In response, the Applicant and Mr Heard received a letter dated 2 August 2017, in terms directed by Tang PJ, as follows:

(1)  Your application for leave to appeal under FAMC 56/2005 was dismissed by the Appeal Committee on 27 September 2005 pursuant to the Rule 7 procedure.  By virtue of section 18(3) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, the decision of the Appeal Committee shall be final and not itself subject to appeal.

(2)  As such, the Registry is directed not to accept the filing of the purported Notice of Motion to appeal against the directions of the Registrar for a rehearing by a single Permanent Judge, and to give you an action number for your purported application.

(3)  The Court and the Registry will not engage in further correspondence with you in relation to your purported application.

27.Nevertheless, on 7 September 2020, the Applicant and Mr Heard wrote again to the CFA.  It seems that the Applicant and Mr Heard had sought to place reliance upon Rule 66 of the CFA Rules.  By letter dated 17 September 2020, the Applicant and Mr Heard received the reply directed by the then Acting Registrar (“Registrar KW Wong”), as follows:

1.  The reliance on R.66 of the HKCFAR, Cap 484A is misconceived.  R66(1) expressly states that a failure to comply with requirements of the Rules and directions of the Courts shall not nullify the proceedings.  R66(2) spells out the Court’s powers under the circumstances.  This Rule concerns with matters of procedure but not of substantive issue;

2.  In the present case, The Registrar considered the Applicants’ application disclosed no reasonable grounds for leave to appeal.  A summons under R.7(1) was issued.  By the order dated 27 September 2005, the Appeal Committee agreed with the Registrar that the application disclosed no reasonable grounds for leave to appeal.  Accordingly, it dismissed the leave application.  It is a dismissal of all the substantive issues raised by the Applicants.  R.66 is simply not engaged.  The Applicants’ case had thus come to a finality because section 18(3) of the HKCFAO, Cap 484 stipulates the decision of the Appeal Committee shall be final, and not itself subject to appeal; and

3.  Apart from the above, no reply to other parts of the letter is considered necessary. The documents which have been lodged by the Applicants will be dealt with by the Court according to previous directions given.

28.As an aside, though I do not need to decide the point for present purposes, I am strongly inclined to agree with Registrar KW Wong that Rule 66 of the CFA Rules simply does not assist the Applicant.

29.Despite this response from Registrar KW Wong, the Applicant and Mr Heard apparently sought again to file a Notice of Motion dated 18 August 2020.  In response, they received a letter from the CFA dated 18 September 2020 and directed by the Chief Justice, which stated as follows:

I am directed by the Hon. Chief Justice to make the following order regarding your purported Notice of Motion dated 18 August 2020 and to state the following:

“1. The Notice of Motion will not be accepted for filing and is in any event dismissed.

2. In view of the history of this matter, the Notice of Motion is an abuse of the process of the court and is misconceived.  Reference can also be made to the contents of the letters to the applicants from the Court dated 25 May 2010, 2 August 2017, 26 August 2020 and 17 September 2020.”

30.Hence, by September 2020, the Applicant and Mr Heard had been repeatedly informed – by Registrar KW Wong, Chan PJ, Tang PJ and the Chief Justice – that the criminal appeal process initiated by them had reached a final conclusion, from which no further appeal or application would lie.

31.It seems that the Applicant and Mr Heard then wrote to the Director of Public Prosecutions on 4 December 2020.  In the (then) DPP’s reply dated 23 December 2020, it was pointed out that:

(1)  The Applicant and Mr Heard pleaded guilty to the charge on which they were convicted.

(2)  An appeal against conviction and sentence of a District Court case lies with the Court of Appeal.

(3)  The Applicant and Mr Heard lodge an application for leave to appeal to CFA directly, which was dismissed under the Rule 7 procedure.

(4)  As the decision of the Appeal Committee is final, there is no legal basis for taking the matter further to the Court of Final Appeal.

(5)  It is therefore unnecessary to reply to the substantive legal points raised by the Applicant and Mr Heard in their letter (though that was not to be treated as in any way accepting any merit in any of the points raised).

(6)  The Applicant and Mr Heard may wish to seek legal advice as to the viability of taking an appeal to the Court of Appeal out of time (though nothing in the letter is to be treated as any concession in the appellate process which might be initiated).

32.I think this is the letter by which the Applicant learned that any appeal from the District Court should not have been taken directly to the CFA (though the Applicant may also have obtained similar advice from other sources at around the same time).

33.Nevertheless, almost one year later, the Applicant and Mr Heard again approached the CFA, by letter dated 16 December 2021.  By letter dated 31 December 2021, the Applicant and Mr Heard received a reply directed by Registrar KW Wong, as follows:

1.  As the writers of the letter are repeating themselves, it will be unnecessary for this Court to give any further reply.  Would they please refer to the letters previously issued by this Court in response to their enquiries; and

2.  No reply can be expected from this Court in future if the same or similar enquiries are made.

34.In his submissions to me, the Applicant described this as a ‘cut and paste’ response, by which he meant a standard form response available to be deployed on numerous occasions in response to many different letters, and not a response directly aimed at his letter.  Though it is not strictly necessary to engage with that suggestion, it is to my mind fundamentally misplaced.  The letter clearly addresses the Applicant’s and Mr Heard’s repeated approaches or enquiries to the CFA and the letters issued by the CFA in response.

35.In the meantime, on 2 August 2021, the Applicant sought to file documents including a Notice of Application for leave to appeal (Form XI) at the Clerk of Court’s Office (Appeals Registry).  That matter was referred to Macrae VP, who directed a reply, as follows:

This is an extremely old and stale case where the two applicants’ convictions were entered on 18 August 2001 as a result of their pleas of guilty (some 20 years ago).  Notwithstanding the appeal history, it remains a fact that the two applicants’ intended appeals were dismissed by the Appeal Committee of the Court of Final Appeal on 27 September 2005 (some 16 years ago) which decision shall be final and not itself subject to further appeal.  There is no basis under which the same matter can now be listed before the Court of Appeal as their applications for leave to appeal against conviction out of time.

Accordingly, the case will not be listed for hearing.  It may be that the applicants’ only recourse in the circumstances is to petition the Chief Executive.

36.The letter also concluded that, in the premises, the case would not be listed for hearing and all documents being refused for filing would be returned to the Applicant.  The letter was signed by Ms Eva Lau (“Ms Lau”), as Clerk to Master Pang, using a typed word processing font (rather than a physical signature on the printed page).

37.It can also be noted that the letter, as originally sent, had the Court’s ‘our ref’ as “CACC 128/2020” – though the clear heading to the body of the letter was “DCCC 328/2001”.  On 23 August 2021, the Applicant wrote to make inquiry about the CACC number.  On 24 August 2021, a revised version of the letter was sent to the Applicant, the only revision being to the ‘our ref’ number which was amended to “DCCC 328/2001”, matching the case reference number in the heading to the letter.

38.This unfortunate, but swiftly corrected, error has given free rein to the Applicant’s imagination to lead him to believe that there was in fact a CACC reference accorded to his papers, which was later superseded or countermanded.  This is so, notwithstanding that he has himself recognised that the number CACC 128/2020 refers to a case commenced in 2020, the year before he sought to file his Form XI in 2021.  In any event, I have taken the liberty of finding out who were the parties to CACC 128/2020, which involved an appeal relating to a defendant called Mr Yu as regards a trafficking in drugs offence, and a judgment in which is at [2021] HKCA 1007. That case and its case number simply have nothing to do with the Applicant or Mr Heard, and it is clear that the inclusion of that case number as ‘our ref’ in the first version of the letter sent to the Applicant was a mistake, swiftly recognised and corrected.  In the circumstances, it might be hoped that the Applicant will finally accept that to be the position.  I would add that the Applicant’s attempt to suggest that the reference ‘CACC 128/2020’ might itself be a different typographical error for ‘CACC 128/2021’ strikes me as utterly without merit.  Having also taken the liberty of finding out who were the parties to CACC 128/2021, I can say that that appeal concerned a defendant called Ms Chan, and I can assure the Applicant that the case had nothing to do with him or Mr Heard.

39.On the basis that neither CACC 128/2020 or CACC 128/2021 were case numbers assigned to the Applicant’s intended appeal in the CA, it must be obvious that no other case number was assigned.  Indeed, that is what the Applicant has been repeatedly told.  As a result, and as the Ombudsman pointed out to the Applicant (see below), the information requested by him under his ATI request simply does not exist, and to say so was not “a blatant lie” on the part of the JA or anyone else (as the Applicant has nevertheless suggested).

40.On 27 August 2021, the Applicant wrote to the Court contending that the CFA had no jurisdiction to hear a case submitted from the District Court without being heard in the CA, and requested to file a ‘Notice of Renewal of application after Refusal by the Single Judge’ (Form XIII). That letter was placed before Master CP Pang, on whose instructions Ms Lau issued a reply on 2 September 2021.  The letter referred to the previous directions given by Macrae VP, that the matter would not be listed for hearing in the CA, and that it was a matter for the Applicant and Mr Heard if they wished to petition the CE.  The clerical mistake in relation to the case number was clarified again.

41.On 17 September 2021, the Applicant sent a letter addressed to Master CP Pang (1) requesting acknowledgement of the High Court reference “CACC 128/2021”, (2) alleging that Macrae VP was misinformed, and that his directions were misconceived, so as the suggestion to petition the CE, and (3) asserting that the Registrar was duty-bound under section 82 of the CPO.  That letter was placed before Master CP Pang, on whose instructions Ms Lau issued a reply on 6 October 2021, repeating the directions given by Macrae VP previously, reiterating that the case would not be listed for hearing, and stating clearly that no criminal appeal number was ever assigned.

42.At this point, I note the Applicant’s suggestion that Master CP Pang – who was also an acting Master or Temporary Registrar – was appointed to act in that role for a period of one year, specifically to facilitate action to be taken against the Applicant to thwart his attempts to reopen his appeal.  The suggestion seems to come from the misunderstanding that acting or temporary Masters are appointed only for one month periods, rather than for a one-year period – that probably misunderstanding the distinction between practitioners from private practice who tend typically to be appointed for temporary one-month periods, whilst existing judicial officers tend typically to be appointed for longer periods.  In any event, with respect, the Applicant’s suggestion seems to me to be devoid of logic and common sense.

43.As with the first letter, each of the subsequent letters sent by Ms Lau (as clerk to Master Pang) was signed by her using a word processing font (rather than a physical signature on the printed page).

44.On 8 February 2022, the Applicant and Mr Heard issued a ‘Final Notice before Legal Action’, referencing Registrar KW Wong’s letter dated 31 December 2021.  It made various demands, and stated that in the absence of a satisfactory response within seven days, the Applicant and Mr Heard would initiate legal action for misconduct in public office and to seek Registrar KW Wong’s immediate removal from office.

45.On 27 May 2022, the Applicant (alone, and without Mr Heard) commenced DCCJ 1956/2022 against Registrar KW Wong. On 5 August 2022, Registrar KW Wong issued an application to strike out the action.

46.On 2 September 2022, the Applicant commenced DCCJ 3416/2022 against Ms Lau and another judicial clerking staff member.  As to the nature of the claim, see below.  The writ was served personally by the Applicant on Ms Lau, who signed receipt of it.  On 7 October 2022, the defendants issued an application to strike out the action.

47.In the meantime, it seems that the Applicant also made complaints to the Police, the ICAC, and the Office of the Ombudsman. However:

(1)  By email dated 18 January 2022, the Applicant was informed by a Detective Inspector (who had interviewed him and received his further materials) that the police investigation had finished and the evidence obtained did not substantiate any charge against any person.  The email went on to indicate that the evidence on hand indicates that the case “is an administrative issue only but not a criminal case”.  The Applicant was advised to pursue the case via the Judiciary.

(2)  By letter dated 18 January 2022, the ICAC informed the Applicant that the content of his report had been noted, but that as the matter in the complaint falls outside the purview of the ICAC, no further action would be taken.

(3)  By letter dated 18 January 2022, the Ombudsman informed the Applicant that he had concluded that the JA had not breached the Code on Access to Information when she turned down a request for the information of the relevant High Court reference number assigned to the Applicant’s 2021 application for leave to appeal.  This was on the basis that the information requested did not exist and so could not be provided, and there is no obligation on a department to create a record which does not exist.

48.The Applicant has sought to make great play of the fact that these communications are all dated the same date, 18 January 2022. On the basis that forensic analysts know that “coincidences do not happen”, he surmises that all of his intended complaints were forced to be “terminated” on the instructions of some higher authority, which he thinks was the then Secretary for Justice.

49.The Applicant has continued to send correspondence to the Ombudsman (and possibly the Police and ICAC) as well as to the JA, making increasingly serious allegations of dishonesty and breaches of the rule of law.  It can be remarked that the correspondence does not make for attractive reading, and many of the points made by the Applicant are based upon the fundamental misunderstanding he has laboured under relating to an idea that certain persons who are judicial officers are in fact merely “administrators”, being subordinate to and subject to acting on the directions of the JA.  Stripped of that misunderstanding, there is little if anything left of his complaint.

50.The Applicant has also commenced DCCJ 1129/2023 against Master CP Pang.  It is perhaps understandable why Mr Lui has described this series of writs issued against judicial officers and judicial clerking staff as harassing conduct.

51.During the oral hearing, the Applicant even said he was about to issue proceedings seeking to have various members of the Department of Justice prosecuted for “suborning perjury”, apparently on the basis that the Applicant thinks they have caused someone who is not the real Ms Lau to make Ms Lau’s affirmations in DCCJ 3416/2022.

C.  The Complaint made to PSC

52.Hence, it can be seen that the Applicant’s complaint in these proceedings arises in the context of the criminal case in the District Court (DCCC 328/2001) in which he was convicted, on his own guilty plea, and his later attempt to overturn the conviction, which was made to and eventually dismissed by the CFA by the Rule 7 process in FAMC 56/2005.

53.As the above context also shows, staff members or officers in the Judiciary who have dealt with the Applicant would often themselves become the subject of complaint, and even claims made by writ.

54.In the pleadings in DCCJ 1956/2022, the Applicant describes himself as someone seeking “furtherance of an appeal to the CFA”.  Registrar KW Wong was the officer who had to handle the Applicant’s attempt to “further appeal to the CFA”.

55.As touched on above, the materials reveal that the Applicant was under the then impression that Registrar KW Wong, as the Acting Registrar, was an “administrator”, and a subordinate of and under the authority of the JA.  The Applicant apparently believed that the JA had instructed Registrar KW Wong to thwart the Applicant’s attempts to appeal to the CFA.  He thinks (or thought) that both Registrar KW Wong and the JA – being “administrators” – are civil servants rather than judicial officers.

56.It is useful to digress here, to identify that I sought to explain to the Applicant during the hearing that he is simply mistaken in believing that Registrar KW Wong and Master CP Pang are “administrators”, rather than “judicial officers”, on the basis that they are or were acting in those roles.  As I understood it – at least during the hearing – the Applicant was prepared to stand corrected.

57.The logical consequence – which I hope the Applicant would also be prepared to accept – is that neither Registrar KW Wong nor Master CP Pang are subordinate to or act on the authority or instructions of the JA.  To put it in simple terms, the JA and other members of the Judiciary administration work to assist the work and performance of duties by the Judges and Judicial Officers – not the other way round.

58.On 12 July 2022, the Applicant prepared a letter (“CE Petition”) intended as a petition to the Chief Executive to invite him to dismiss or compulsorily retire the JA, under the power granted to him by section 10 of the Public Service (Administration Order) (“PSAO”).

59.I have defined the letter as the CE Petition, notwithstanding that Mr Lui referred to it as the “purported Petition”, on the basis that the CE does not necessarily accept that the letter constitutes a petition in its proper sense.  But, it seems obvious to me that the Applicant himself thought he was making a petition to the CE, and but for the then Covid-imposed restrictions which required him to deliver it by email, he would have tried to deliver it as a petitioner in person.  In any event, I think it neither necessary nor helpful to become side-tracked as to whether the letter is or is not properly to be regarded as a “petition”.

60.It is stated in the CE Petition that (all emphasis in original):

I am the plaintiff in a District Court writ for misfeasance by WONG King-wah (Mr), Acting Registrar, Court of Final Appeal – DCCJ 1956/2022.

I summonsed the defendant, WONG King-wah (Mr) to appear before a Master of the District Court to be held at 11.00am Tuesday, 9 August 2022 (open to the public).

The Statement of Claim identifies that as administrator, WONG King-wah (Mr) is under the authority/instruction of Judiciary Administrator LEUNG Yuet-yin Ester, JP.

The writ provides that Judiciary Administrator, LEUNG Yuet-yin Ester, JP is:

a)  in serious breach of her duties as a Senior Civil Servant of HKSAR;

b)  is in breach of her Oath of Office;

c)  caused several members of her staff to provide dishonest responses to my enquiries, on her behalf; and

d)  caused Wong King-wah (Mr), her subordinate, to breach the Basic Law

The actions of LEUNG Yuet-yin Ester JP have subverted the Rule of Law/Basic Law of HKSAR and could constitute a breach of National Security.

……

I respectfully suggest that section 10 PS(AO) is invoked accordingly.

61.On 18 July 2022, Mr Andy Chan at the Office of the Chief Executive (“CEO”) replied to the Applicant by email, stating in part that:

The Judiciary has established a mechanism to handle complaint against a judge’s conduct.

If you are dissatisfied with a judge’s conduct, you may lodge your complaints to the Secretariat for Complaints against Judicial Conduct in writing.

62.On the same day, the Applicant replied, also by email, to Mr Andy Chan’s email, stating (all emphasis in original):

Unfortunately, you have not read or understood my petition to the Chief Executive.

It is probably not your fault.

Firstly, it is NOT – repeat NOT a complaint against Judicial Conduct – my District Court writ DCCC 1956/2022 is against WONG King-wah (Mr) - who is an administrator at the CFA.

He is in office as Acting Registrar – who, according to the Rule of Law, is not – repeat NOT a Judicial Officer.

So, please do not waste precious Judiciary time passing my e-mails to the Judiciary.

If you take the time to read my emails, you will establish that my petition is for the Chief Executive to invoke section 10, PS(AO) – Public Service (Administration Order) owing to serious misconduct perpetrated by a senior civil servant- the Judiciary Administrator – Ms LEUNG Yuet-yin, Ester.

Before the Chief Executive can invoke Section 10, he must consult with the Public Service Commission.

Please therefore put my emails before,

a)  The Chief Executive/EXCO

b)  The Chairman of The Public Service Commission – Mrs Rita LAU NG Wai-lan, GBS, JP

Please confirm that you have actioned the above by confirmation to my email at your earliest convenience.

63.In the email, the Applicant also said that the CE must consult the PSC before invoking section 10 of the PSAO, and thus asked for his emails to be passed to the Chairman of the PSC.  The Applicant was referring to section 18 of the PSAO, which provides that the CE shall not inflict any punishment under sections 9 to 11 or retire any officer under section 12 without first consulting the PSC.

64.The Applicant was sent in reply an email dated 27 July 2022.  In it, Mr Andy Chan stated:

Thank you for your email of 18 July and I am authorised to reply.

The matter raised relates to judicial decisions arising in the course of legal proceedings.  Given the principle of judicial independence, it would be inappropriate for the matter raised be dealt with by this Office. Should you wish to obtain legal advice, you may consult your own legal adviser, or make use of the Duty Lawyer Service’s free legal advice service.  Details are available on the website …

The Judiciary also has established a mechanism to handle complaint against a judge’s conduct.  If you are dissatisfied with a judge’s conduct, you may lodge your complaint to the Secretariat for Complaints against Judicial Conduct in writing.

65.In the meantime, on 25 July 2022, the Applicant himself faxed the CE Petition, the email correspondence with the CEO, together with another letter (“PSC Letter”) to the PSC addressing the Chairman of the PSC.  In the PSC Letter, he made more complaints against the JA.  After referring to the writ in DCCJ 1956/2022 and his report to the police and the reply, the Applicant said in the PSC Letter [sic] (all emphasis in original):

For the past two years, my attempts to pursue complaints at the Judiciary have been diverted or thwarted.  After application to Access to Information (“ATI”) and complaint to Ombudsman (OMB 2021/3898), evidence established the Judiciary Administrator was the primary source of the dishonesty.

On 12 July 2022 I attempted to deliver a petition to the Chef Executive in person to his office at Tim Wah Avenue. Security advised that owing to COVID, I was unable to hand in my petition.  I should send or email it to the Chief Executive’s office.

I enclose a copy of my petition, e-mail response from Andy CHAN*** and my subsequent follow-up e-mail response.

It is abundantly clearly Andy CHAN failed to read my petition and failed to hand it to the Chief Executive/EXCO.  I suspect the Judiciary Administrator instructed Andy CHAN to divert my petition to the Secretary for Complaints for Judicial Conduct.

I received no further communication from Andy CHAN and do not expect him to take any further action regarding my petition.

PUBLIC SERVICE COMMISSION

After study of Public Service Commission – Annual Report, Chapter 6 provided clear understanding of duties and responsibilities of Civil Servants.  It further provides appreciation that PSC collaborates with Government to maintain the highest standard of conduct and discipline for Civil Servants in discharging their public duties.

The Judiciary Administrator has command of possibly hundreds of administrators under her authority.  In conclusion, with supporting evidence and legal argument, my writ DCCJ 1956/2022 gives explanation of why submissions at the Court of Final Appeal have been thwarted by the actions of acting Registrar, who is not in office as a Judge or Judicial Officer.  Tenure of office as “Acting Registrar” is confirmed as an “administrator” under authority and instruction of the Judiciary Administrator.

This constitutes a gross effrontery to public confidence in the “Judiciary” and furthermore is a dire insult to the Peoples’ Republic of China by her total disregard of the Civil Service Oath and Basic Law of HKSAR.

I can provide full supporting evidence of my report and I would be willing to visit your offices for interview and provision of further information as required.

66.As already indicated above, insofar as the Applicant’s complaints are based – as they are – on the suggestion that the Acting Registrar of the CFA (or indeed any other judicial officer) is merely an administrator acting under the authority and instruction of the JA, that is fundamentally misplaced.

67.By email dated 3 August 2022, the PSC refused to take the complaint any further.  The letter – signed by the Secretary, PSC – stated:

The Chairman of the Public Service Commission (the Commission) has read both your email and faxed letter dated 25.7.2022.  I am directed by the Chairman to give you a reply.

Thank you for taking the interest to read our Annual Reports.  As prescribed under the Public Service Commission Ordinance (the Ordinance) (Cap 93) and stipulated in section 6(2)(b) of the Ordinance, matters pertaining to any judicial office are outside the statutory remit of the Commission.  The Commission is therefore not in position to pursue the matter raised in your email.

68.The Applicant also faxed a letter to the PSC, at about the time of the PSC’s reply email.  The bulk of the letter concerned the Department of Justice’s handling of his case in DCCJ 1956/2022 – and is irrelevant to the present judicial review challenge.  But it is plain from the fax that the JA is the target of his complaint.  The first sentence reads (sic):

Reference my confidential fax dated 25 July 2022 and my visit on 26 July 2022, I met Ms NG Pik-yan, Milly and stressed the unprecedented misconduct perpetrated by the Judiciary Administrator – LEUNG Yuet-yin Ester, JP.

69.On 5 August 2022, the Applicant, who by then had already read the PSC’s email reply dated 3 August 2022, faxed another letter to the PSC.  In the three-page letter, he urged the PSC to continue with the investigation into misconduct, for reasons which are not immediately intelligible.  But he again pointed out that the subject of his complaint is the JA:

My forensic research over a decade uncovered several instances of misconduct perpetrated by the subject of my complaint – the Judiciary Administrator (“JA”)

70.By an email dated 8 August 2022, the PSC repeated the message given to the Applicant in the 3 August 2022 email. It was again signed by the Secretary, PSC and stated that:

The Chairman of the Public Service Commission (the Commission) has read your faxed letters dated 3.8.2022 and 5.8.2022 respectively.  I am directed by the Chairman to give you a consolidated reply to both letters.

The powers and functions of the Commission are stipulated in the Public Service Commission Ordinance (Cap. 93). The Commission must act within the confines of the law that establishes it.  As explained in our reply to you on 3.8.2022, the Commissioner has no statutory jurisdiction to act on any matter pertaining and related to the exercise of functions and authority by an officer holding a judicial office.

D.  The PSC

71.The PSC is a statutory body established under and governed by the Public Service Commission Ordinance Cap 93 (“PSCO”). Broadly speaking, the function of the PSC is to provide advice to the CE regarding matters as to the recruitment, promotion and disciplinary matters concerning public officers.

72.The PSC’s function is provided by section 6(1) of the PSCO:

The Commission shall advise the Chief Executive regarding -

(a)  the filling of such vacancies in the public service as may be prescribed;

(b)  the promotion of an officer from such grades and classes of the public service to another grade and class as may be prescribed;

(c)  such representations from an officer as may be referred to it by the Chief Executive or made to the Commission in accordance with government regulations;

(d)  any matter affecting the public service which may be prescribed by regulation made hereunder or which the Chief Executive may refer to the Commission;

(e)  any matter affecting the conduct and discipline of public officers on which the Chief Executive is required by Public Service (Administration) Order to consult the Commission.

73.Section 6(2) excludes certain public officers from the function of the PSC.  Section 6(2) provides:

Nothing in this section shall apply to the following offices, classes of office or appointments—

(a)  the Chief Executive, or the offices of the Chief Secretary for Administration, the Financial Secretary and the Secretary for Justice, or any member of the Chief Executive’s personal staff;

(b)  any judicial office;

(c)  the Chairman or any member of the Commission;

(d)  any office or rank in the police force;

(e)  any office specified in the First Schedule.

74.As will be seen below: (1) section 6(1)(e) is the section to which the Applicant makes reference in his application, contending that the Chairman of the PSC has failed to comply with the statutory duty there identified; and (2) section 6(2)(b) is what was invoked by the PSC in refusing to further handle the Applicant’s complaint. Section 2 defines “judicial office” as those offices listed in Schedule 1 of the Judicial Officers Recommendation Commission Ordinance Cap 92 (“JORCO”).

E.  The Application

75.As stated, the Applicant acts in person.  In the Form 86, he identified the target of his proposed challenge as the failure to comply with the statutory duty under section 6(1)(e) of the Ordinance. As further particularized in his supporting affirmation, the alleged failure is the Chairman of the PSC’s refusal to pursue what the Applicant calls a serious misconduct by a civil servant.

76.In the supporting affirmation, he put forward two grounds.  As I understand it, what the Applicant says is that his complaint is within the PSC’s statutory remit under section 6(1)(e).  The PSC has a duty under section 6(1)(e) to advise the CE on matters affecting the conduct and discipline of public officers on which the CE is required by PSAO to consult the PSC.  The Applicant says the matters raised by him – concerning misconduct of a civil servant – fall within the scope of section 6(1)(e). Therefore, the two grounds put forward by him are that:

(1)  Ground 1: In refusing to pursue it further, the PSC failed to “apply the correct procedure under section 6(1)(e)”.

(3)  Ground 2: In refusing to pursue it further, the PSC has made an error of fact in thinking that the JA is a judicial officer, when she is not (as that post is not one of the offices listed in Schedule 1 to JORCO).

F.  Application for Examination of Witnesses

77.Before turning further to the substantive matters, I can refer to an interlocutory application that was issued by the Applicant by summonses dated 11 and 24 April 2023, which I heard on 28 April 2023.

78.By those summonses, the Applicant sought an order that two persons (both described as “a witness on behalf of the Plaintiff”, i.e. the Applicant) be examined forthwith before a Judge.  The two persons were (1) Ms Lau and (2) Ms Yuen Po Lin Ann (“Ms Yuen”).

79.As set out above, Ms Lau was formerly the Judicial Clerk of the Appeals Registry of the Higher Court, responsible for monitoring the progress of criminal appeals from filing of notice of an appeal to its readiness for listing.  Ms Lau has been made the 1^st defendant the claim brought by the Applicant as plaintiff in DCCJ 3416/2022.  In those proceedings, Ms Lau has applied to strike out the action, and in that context has made four affidavits.  Each affidavit was sworn before Ms Yuen who is a Commissioner for Oaths, also working at the Judiciary.

80.As explained by the Applicant in his affidavit supporting the application, in essence the Applicant wished Ms Lau to be examined as to (1) why she did not physically sign for letters sent to the Applicant, but instead used only a signature produced by a software font, and (2) why she did not swear in person the affidavits filed in DCCJ 3416/2022. From submissions made to me by the Applicant, it appears that the Applicant does not believe that Ms Lau was the author of the letters, or that she made the affidavits (an allegation of “forged signatures”, made on the basis that the signatures on the affidavits were different from one he had seen Ms Lau write on a different document – the writ personally served on her – on an earlier occasion).  Therefore, the Applicant also wished Ms Yuen to be examined, as she would be able to say who actually appeared before her to swear the affidavits.

81.At the end of the hearing of the summonses, I dismissed both applications, for reasons which I said I would give later.  Those reasons are as follows:

(1)  The only proposed or intended grounds of review in the present proceedings relate to allegations of failing to apply the correct procedure, or failing to pursue the matter relating to the Applicant’s complaint to the PSC, upon a misunderstanding of fact.

(2)  The only person alleged to have made those allegedly public law errors is the only respondent to the present proceedings, namely the Chairman of the PSC.

(3)  Either the Applicant can make out the alleged public law errors on the part of the Chairman of the PSC, or he cannot.  The Court only has to decide whether the Chairman of the PSC has committed a public law error in rejecting to handle the Applicant’s complaint against the JA.

(4)  Neither Ms Lau nor Ms Yuen are parties to the present proceedings, nor are any acts or omissions on their part alleged to be relevant to the decision sought to be impugned in the present proceedings.

(5)  Indeed, neither Ms Lau nor Ms Yuen can conceivably be properly described as “a witness on behalf of” the Applicant – not least where he envisages that they would not give evidence favourable to him and he would need to cross-examine them.

(6)  At the oral hearing, I indicated to the Applicant that I could not see how Ms Lau or Ms Yuen would be relevant to his judicial review application against the Chairman of the PSC.

(7)  The Applicant answered by summing up the underlying complaint which he requested the PSC Chairman to look into – namely, how he had been unfairly treated by various entities including the Judiciary and different public authorities and that the JA is the origin of the dishonesty practiced against him.

(8)  But what should or should not be investigated into about his underlying complaint against the JA is not what the Court has to decide in this judicial review application.

(9)  The Applicant said there was an “indirect link” between Ms Lau and Ms Yuen’s evidence and his complaint against the PSC Chairman in these judicial review proceedings.  But that merely harked back to how Ms Lau and Ms Yuen might assist his underlying complaint against the JA.

(10)  In the circumstances, the proposed examinations of both Ms Lau and Ms Yuen are utterly irrelevant to the challenge in these judicial review proceedings.

(11)  The application for examination of Ms Lau and Ms Yuen was misconceived, and in the way that it seeks to obtain information for other sets of proceedings is also an abuse of process.

82.Mr Lui asked for the costs of the summonses to be paid by the Applicant on an indemnity basis, to be summarily assessed by reference to a Statement of Costs seeking a total sum of $116,076.  Mr Lui submitted that an indemnity costs order is appropriate where (1) the summonses had no chance of success, (2) the Applicant failed to explain why the matters covered by the summonses would be relevant to these proceedings; (3) both summonses are in substance an abuse of the process of the Court, (4) despite the poor quality or incomprehensibility of the justification for the order sought, the Applicant failed to serve any submissions to assist the Court, and (5) that the Applicant is a litigant in person should not assist him where he is certainly no stranger to litigation and knows promptly to lodge submissions, as he has in other actions.

83.In response, the Applicant essentially simply challenged the quantum of the costs claimed, and in particular the level of Counsel’s fees.

84.Whilst I think the circumstances of the summonses would justify an indemnity costs order, even on a usual fairly broad brush summary assessment it would be necessary to exclude those costs which are unreasonable.  Looking at matters overall, by reference to the level of difficulty or complexity in the applications, and the degree of importance in the context of these proceedings or generally, it seems to me that the costs claimed are obviously disproportionate and overall unreasonable.  In particular, so obviously misconceived were these summonses that it was unreasonable to instruct Counsel of Mr Lui’s seniority and expense, even if Mr Lui was later slated to argue the substantive application for judicial review.

85.I summarily assess the costs payable by the Applicant in the sum of $40,000.

G.  The Form 86 and the Originating Summons

86.As stated, after the filing of the Applicant’s Form 86, I gave instructions for the filing of an initial response and reply.  Thereafter, on consideration of the papers received in accordance with those directions, I granted the Applicant leave to apply for judicial review (albeit that I refused the claim to interim relief).

87.Following the grant of leave, the Applicant filed the Originating Summons, Form 86A, on 20 March 2023.  The relief sought was (all emphasis in original):

… an Order of MANDAMUS that,

a)  ORDERS the Chief Executive to have actual sight of the Applicant’s Petition noting the format is of serious concern and accordingly, invoke s.10 Public Service Administration Order (PS(A)O)

b)  ORDERS Commissioner of Police to make a genuine and thorough investigation into criminally dishonest acts allegedly committed by Judicial Administrator in HCAL 922/2022, DCCJ 1956/2022, DCCJ 3416/2022

c)  ORDERS, upon the not unreasonable premise that the Chief Executive executes s.10 PS(A)O, the PSC Chairman to perform her statutory duty under 6(1)(e) Public Service Commission Ordinance, Cap 93 (PSCO)

and relief, by declaration (according to “Rule of Law” **) namely that,

a)  Acting Registrar, Court of Final Appeal, does not hold judicial office

b)  Master PANG (PANG CHUNG PING) – Temporary Deputy Registrar, High Court from 12 April 2021 to 11 April 2022 does not hold judicial office

88.Mr Lui submitted that claimed relief is a significant extension on what was apparently claimed in the Form 86 – notwithstanding that the grounds of the application are exactly as they were in the Form 86 – and it is impermissible for the Applicant to seek those orders of mandamus against the CE and CP and declarations as regards the Acting Registrar of the CFA and Temporary Deputy Registrar of the High Court.  I agree, essentially for the following reasons:

(1)  The only respondent to the application was identified as the Chairman of the PSC.

(2)  The only conduct identified as the subject of the intended challenge was an alleged failure by the Chairman of the PSC to comply with the statutory duty under section 6(1)(e) of the PSCO.

(3)  I granted leave to apply for judicial review only as against the Chairman of the PSC and as regards that conduct.

(4)  In any event, as he accepts, the Applicant did not seek substantive relief against the CE and the CP, and focused his complaints to impugn and impugn only the Chairman of the PSC’s alleged failures covered by Ground 1 and Ground 2.

(5)  The Applicant had previously sought similar relief by way of interim orders, which I refused on a similar basis.

(6)  I would not grant leave to amend the Form 86 to extend the relief sought to that now sought by the Originating Summons, not least where Order 53 requires the Form 86 to contain a statement of grounds upon which relief is sought (which in this case were limited to complaints against the Chairman of the PSC).

(7)  In any event, no actual application to amend was sought.

(8)  Nor has the Applicant articulated any public law basis upon which he might argue that the CE or the CP failed to act.  Indeed, in his oral submissions, the Applicant went so far as to assert that the CE and the CP had done nothing wrong (because they were unaware of what they were supposed to do).

(9)  The declarative relief put forward is not only unconnected to the actual grounds of the challenge for which leave was granted, but also is based upon the fundamental misunderstanding – which I have already canvassed above – that an Acting Registrar or a Temporary Deputy Registrar is not a judicial officer but an administrator.  Such declarative relief is bound to be refused.

89.I shall, therefore, focus my consideration only on the two identified grounds of challenge relating to the impugned conduct of the Chairman of the PSC.

90.In doing so, I do not think I need to rehearse those matters dealt with by the Applicant in his written and oral submissions relating to the annual numbers of applications for judicial review in Hong Kong, the ordinary classification of the heads or grounds upon which administrative action is subject to control by judicial review, or the constitutional basis in Hong Kong for such challenges.  The simple question to pose and answer in these proceedings is whether the Chairman of the PSC has made any public law error in the impugned conduct, and if so whether to grant any relief in the exercise of the discretion then arising.

H.  Ground 1

91.Under Ground 1, the Applicant argues that the Chairman of the PSC failed to apply the correct procedure under section 6(1)(e) of the PSCO.

92.Mr Lui submitted that this ground must be rejected for the reason that the precondition to the PSC’s duty to advise under section 6(1)(e) is simply absent.  The precondition in question, triggering the PSC’s duty to advise, is where the PS(A)O requires the CE to consult the PSC and where the subject matter on which such advice is given is a matter affecting the conduct and discipline of public officers.

93.The Applicant agreed in his submissions that section 6(1)(e) of the PSCO does have that precondition, and that it is currently not met.  But, the Applicant complained that the reason why the precondition was currently not met was because his CE Petition had not in fact been given to the CE, but had been “diverted”.  (This, of course, explains the part of the extended relief sought by the Applicant in his Originating Summons, where the Applicant put forward his claim on what he described as the “reasonable assumption” that the CE had invoked section 10 of the PS(A)O: see above.)

94.As to the suggested precondition, it is worth pointing out that the text of section 6(1)(e) – “The Commission shall advise the Chief Executive regarding … any matters affecting the conduct and discipline of public officers on which the Chief Executive is required by Public Service (Administration) Order is to consult the Commission” – may be said merely to describe the scope and content of the matters the subject of the potential advice, and not speak to a procedural requirement.  But I agree that the ordinary sense of the provision requires the CE first to have taken a step which requires consulting the PSC.  First, it makes little sense to imagine that the PSC has some roving power or duty to advise on matters affecting the conduct and discipline of public offices without any particular trigger for that advice.

95.Further, as Mr Lui submitted, that interpretation is supported by the legislative materials, which he included with his submissions:

(1)  The provision was introduced in 1979, when a paragraph (e) was introduced to section 6(1) of the then PSCO, relating to “any matter affecting the conduct and discipline of police officers on which the Governor is required by Colonial Regulations to consult the Commission”.

(2)  The explanatory memorandum to that amendment said its purpose was “to make it expressly part of the Commission’s obligation to advise the Governor on such matters relating to the conduct and discipline of police officers as may be referred to it by the Governor”.  Hence, the memorandum identified the necessity of an act of reference.

(3)  Later amendments to replace the terms “Governor” and “Colonial Regulations” with “Chief Executive” and “Public Service (Administration) Order” respectively were necessitated by to correct the anachronistic references, but did not identify any change in the sensitive purpose or intent.

96.Further, the only provision in the PS(A)O that obliges or requires the CE to consult as such, is section 18 which provides:

18.  Consultation with Public Service Commission on punishment

Except as may be provided by regulations made by the Chief Executive under section 21(2) and except in the case of an officer who is one of the officers designated in section 6(2) of the Public Service Commission Ordinance (Cap. 93), the Chief Executive shall not inflict any punishment upon an officer under sections 9 to 11 or require an officer to retire under section 12 without first consulting the Public Service Commission.

97.As the Applicant implicitly accepts, and despite what he hoped would be the reasonable assumption otherwise, there is no evidence that the CE as ever caused any inquiry under section 9 or section 10 to be made into the conduct of the JA.

98.As a result, I accept that the necessary foundation for the Applicant’s Ground 1 is missing.

99.Ground 1 stands to be dismissed.

100.In passing, I would point out that the position is not changed by what was stated on behalf of the Chairman of the PSC in the Initial Response filed on her behalf that:

as a matter of general practice, when a complaint is lodged with PSC against a public officer, PSC will normally refer to the matter to the relevant bureaux/department for investigation and follow-up action as appropriate, as PSC is not equipped with executive power to investigate.

101.It does not appear to be controversial that the PSC is not equipped with executive power to investigate.  Further, the alleged failure to comply with a statutory duty, as put forward by the Applicant in his Ground 1, is not a failure to refer his complaint to a relevant bureau or department – not least because he is apparently dissatisfied that his complaint has been “diverted” to that department (the Judiciary).  Indeed, his complaint is based upon what he says is a reasonable assumption that the CE has triggered the possibility of punishment under section 10 of the PS(A)O.

102.I have considered whether the Applicant is really pursuing a wider and less specific remedy, not necessarily directly connected to section 6(1)(e).  But the Applicant himself made clear orally that he is in fact seeking the specific relief that the PSC should exercise its powers under section 6(1)(e) on the “assumption” that those powers have been triggered.

I.  Ground 2

103.Ground 2 argues that the Chairman of the PSC’s failure to pursue the matter of a civil servant’s serious misconduct as alleged by the Applicant flowed from either (1) a misunderstanding that the JA holds judicial office or (2) the failure to take into account that the JA does not hold judicial office.

104.Mr Lui submitted that:

(1)  Where the complaint is in relation to an asserted failure to investigate the alleged misconduct of the JA, the complaint must fail because the PSC does not have any power to investigate into the conduct of any civil servant.

(2)  Rather, the Applicant has failed to persuade the CE to investigate the matters raised in the CE Petition, and without asserting any basis to challenge the CE has instead chosen to seek to force the Chairman of the PSC to investigate (when he knows it has no such power).

(3)  Whether the JA holds or does not hold any “judicial office” is a non-point.  Though it is correct that section 6(2)(b) has no application to the JA because she does not hold judicial office, the statement made to the Applicant in the replies to his letters to the PSC must be read and understood in context of a complaint about the JA which was intertwined with the conduct of the Acting Registrar of the CFA – a matter both (a) sub judice in DCCJ 1956/2022, and (b) where the Acting Registrar is certainly the holder of a “judicial office” relevant to section 6(2)(b).

105.However, it seems to me that the first two points really go to the question of potential relief.  As to the third (and, to my mind, key) point, it is self-evident from the 3 August 2022 email and the 8 August 2022 email that the PSC refused to take the Applicant’s complaint any further on the basis that the subject of the complaint is someone holding a judicial office.  The reference to section 6(2)(b) leaves no room for misinterpretation.

106.It is also sufficiently clear from the materials sent by the Applicant to the PSC – and as Mr Lui accepted – that the Applicant’s target of complaint was the JA, albeit this arose from the Applicant’s mistaken belief that the JA has authority over or is the supervisor of and can direct or instruct the Acting Registrar to the CFA.

107.As the Applicant stressed in his oral submissions – and in addition to the obviously erroneous suggestion that Registrar KW Wong was the JA’s “subordinate” and that she had caused him to breach the Basic Law – the CE Petition specifically alleged or complained that the JA herself had been (a) in serious breach of her duties as a senior civil servant of the HKSAR, (b) in breach of her oath of office, and (c) caused several members of her staff to provide dishonest responses to the Applicant’s enquiries, on her behalf.  It was the alleged actions on the part of the JA which formed the basis on which the Applicant suggested that section 10 of the PS(A)O should be invoked.

108.Thus, in refusing to take the matter further on the basis that matters pertaining to any judicial officer outside the statutory remit of the PSC, the PSC proceeded on (1) a clear misunderstanding that the Applicant’s complaint related only to the acts of a judicial officer, and/or (2) an error of fact, either in failing to appreciate that the complaint concerns the JA or in thinking that the JA is a judicial officer.

109.Ground 2 is made out.

J.  Discretionary Grant or Refusal of Relief

110.However, I would in the exercise of my discretion refuse to grant any relief even though I think Ground 2 has been made out.

111.This is because, as Mr Lui submitted, whilst the Applicant may have correctly identified a factual misunderstanding or mistake on the part of the PSC which caused it to choose not to pursue the matter, the PSC in any event had no relevant power to pursue the matter in the sense of investigating into the conduct of the JA.

112.In essence, this harks back to Ground 1. Because it lacks any relevant power, it is not for the PSC to investigate potential misconduct on the part of a civil servant.  Its relevant power and duty (for present purposes) is only to provide advice to the CE regarding any matter affecting the conduct and discipline of a public officer once the CE has consulted the PSC because he is required to do so by the PS(A)O.  Even if a complaint of failing to pursue the matter relates to a failure to pass on his complaint to the relevant department, that is actually almost the last thing the Applicant really wants: he is already deeply unhappy with what he regards as his complaints about the Judiciary staff simply being referred back or “diverted” to being dealt with by the staff of the Judiciary.  The Applicant himself sees no utility in that course, and does not seek it.

113.Indeed, the form of relief as sought by the Applicant – namely an order that the Chairman of the PSC should perform her statutory duty under section 6(1)(e) of the PSCO – is really merely a repetition of what she is already required to do under the law.  It would only be meaningful if the Applicant has already established that she has somehow failed to comply with her duty under that section.  But as the Applicant himself has admitted, the necessary trigger (a referral from the CE) cannot be shown to have existed.  This is so, notwithstanding the public law error made in the responses given by the PSC to the Applicant.

K.  Conclusion

114.The Applicant’s substantive application for judicial review is dismissed.

115.As to costs, where I have found one ground for judicial review made out, but in the exercise of my discretion have refused to grant any relief, it seems to me that the appropriate costs order to make is no order as to costs.  However, I shall make that order in the first instance on a nisi basis, to become absolute after 14 days if neither party makes an application to vary.  Any such variation application will be dealt with on the papers.

L.  Postscript

116.I acknowledge the deep upset which the Applicant obviously still feels in relation to his conviction and serving of a sentence as long ago as 2001.

117.However, even by the time of his first attempt to overturn the conviction in 2005 – whether or not it was pursued in the correct forum – the matter was in practical terms rather stale, and must have seemed even more so in light of the fact that the conviction was entered on the Applicant’s own plea of guilty.

118.Further, irrespective of any procedural points, the Applicant knows that the CFA – being the apex appellate court in Hong Kong – has considered his application for leave to appeal against the conviction, almost certainly at least including a consideration of the merits of the proposed appeal.  Having done so, the CFA has formed the view that the application disclosed no reasonable grounds for the grant of leave to appeal. As a matter of the CFA Rules, and as a matter of common sense, that really is and ought to be the end of the matter.

119.In the 17 or so years since that time, what might in some circumstances be regarded as persistence might now be characterised as verging on fixation, with a corresponding inability to see independently verifiable facts outside of the pre-conceived starting point of a widespread conspiratorial agreement amongst numerous members of the Hong Kong Government to target the Applicant, and to prevent him from pursuing an attempt to overturn his conviction.

120.I hope I have set out in this Judgment a number of comments and references which might assist the Applicant in stepping back, in resetting his starting assumptions, and in reaching a different conclusion.

The applicant, acting in person

Mr Mike Lui, instructed by the Department of Justice, for the respondent and the interested parties