Secretary for Justice v. Persons Conducting Themselves in Any of the Acts Prohibited Under Paragraph 1(A), (B), (C) or (D) of the Indorsement of Claim

HCA 855/2023

[2023] HKCFI 3240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 855 OF 2023

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BETWEEN

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DECISION

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1.This is Ms Chow’s application for leave to appeal against the Decision of this Court dated 31 October 2023 by which her application for a declaration that she had been a party to these proceedings was dismissed. With the agreement of the parties, this application is dealt with on paper.

2.It is lamentable that so much resource has been expended on a narrow procedural argument because Ms Chow had refused to make a joinder application even when the option was indicated to her by the Court. 

3.I propose to deal with the application succinctly, especially when the substantive appeal in respect of this Court’s Decision dated 28 July 2023 is due to be heard within days. 

4.Unusually, no submission is advanced in support of the grounds of appeal set out in the draft Notice of Appeal.  I agree with Mr Yu SC, who represented the SJ with Mr Chang SC and Ms Cheung PGC, that the grounds are repetition of Ms Chow’s previous arguments. 

5.With respect, I do not agree with the proposition made in the skeleton submissions (para 1) of Ms Li SC, who represented Ms Chow with Mr Kwan, Mr Wong and Ms Leung, that the grounds themselves are sufficient to demonstrate reasonable prospect of success.  To the contrary, I fail to see how it is demonstrated that the Court’s analysis is erroneous, and there is no sufficient reason to believe that the grounds are reasonably arguably.  I should also say that I agree with Mr Yu’s analysis of the grounds (see paras 3-13 of the SJ’s submissions).

6.Ms Li’s submissions focused on the alternative limb for leave to appeal: “… some other reason in the interests of justice why the appeal should be heard” (s. 14AA(4)(b) of the High Court Ordinance, Cap 4 (“Ordinance”). 

7.It is submitted that this appeal involves a point of general procedural importance and the substantive principle of audi alteram partem in the context of an injunction sought both in aid of enforcement of criminal law and contra mundum.  It is important to consider how the statutory definition of “party” in the Ordinance should be construed in such context.

8.In my respectful view, the point is much overplayed.  The declaration sought by Ms Chow turned upon the special, if not unique, circumstances where she contended that she was a party to these proceedings notwithstanding that it was her own case that she did not fall within the description of Defendants.  There was no question of denial of her right to be heard.  She was entitled to apply to be joined in the proceedings as an intervener even if she was not a Defendant.  The fact is that she refused to make the application.

9.Ms Li also relies on the proposition that the terms of the injunction Order sought were not easy to understand.  Whilst I agree with the proposition (see the Decision of this Court dated 28 July 2023, [81]), I believe that the difficulty arose from the width and complexity of the injunction.  However, I fail to see how the point assists Ms Chow.  She was legally represented at all material times, and she had no difficulty making clear that she was not one of the Defendants.

10.Finally, the recent authority of Wolverhampton CC v London Gypsies and Travellers [2023] UKSC 47, [140] and [178] had, firstly, reinforced how an injunction of the type sought in these proceedings would apply to newcomers.  They would not become a party to the proceedings in the absence of joinder application unless they breached the injunction. Secondly, the authority clarified the right of newcomers to have the injunction varied or discharged.  In doing so, the newcomers are entitled to advance any reasons which could have been advanced in opposition to the grant of the injunction when it was first made.  Ms Chow’s submissions have to be considered in light of this authority.

11.For these reasons, the leave application is dismissed.  I see no reason why costs should not follow the event.  I make an order nisi that the costs of this application be paid by Ms Chow with a certificate for 2 counsel, to be taxed if not agreed.

12.I am grateful to counsel for their assistance. 

Mr Benjamin Yu SC, Mr Jonathan Chang SC and Ms Leona Cheung PGC, instructed by Secretary for Justice, for the Plaintiff

Ms Gladys Li SC, Mr Steven Kwan, Mr Albert NB Wong and Ms Yvonne Leung, instructed by O Tse & Co, for Ms Chow Hang Tung