莊裕安 v. 律政司司長林定國

CACV 366/2023, [2024] HKCA 349

On appeal from [2023] HKCFI 2840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2023

(ON APPEAL FROM HCAL NO 1243 OF 2023)

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

1.By a judgment dated 2 November 2023 (“the Judgment”),^[1] Anthony Chan J dismissed the applicant’s application for leave to apply for judicial review.  The applicant lodged a notice of appeal on 16 November 2023.  On 2 January 2024, the Registrar of Civil Appeals (“the Registrar CA”) ordered the notice to be expunged from the Court’s file, on the ground that it purported to join another party to the proceedings as the 2^nd respondent without leave (“the Expunction Order”).  The applicant now appeals against the Expunction Order.

Background

2.In the proceedings below, the applicant applied for leave to apply for judicial review against the decision of the Secretary for Justice to prosecute Mr Lai Chee Ying, who was indicted for offences under the National Security Law.  The Secretary was the only putative respondent in the applicant’s Form 86.    

3.The Judge dismissed the leave application.  Among other reasons, the Judge took the view that the applicant’s real motive behind the application was to launch a collateral attack on judgments and orders made against him in other proceedings, and to ventilate his complaints against members of the judiciary who had dealt with his cases (the Judgment at [7] and [24]).  In those proceedings, the applicant had been held to have abused the court’s process.  The Judge found that the applicant was unremorseful in his abuse of the court’s process to the prejudice of other users (at [23]).  Apart from dismissing the leave application, the Judge also made a restricted proceedings order against the applicant in relation to specified proceedings.

4.Following the Judgment, the applicant lodged a notice of appeal.  The notice, without leave, purported to join Mr Lai as the 2^nd respondent to the appeal.  By the Expunction Order, the Registrar CA ordered the notice to be expunged from the Court’s file.  An application to fix date, filed on the same day as the notice, was also expunged for the same reason.  The applicant was then ordered to pay costs occasioned by the expunged documents to the Secretary.

5.On 24 January 2024, the applicant lodged a Notice of Motion, to apply for leave to appeal to the Court of Final Appeal (“the CFA”) against the Expunction Order.  In subsequent correspondence on 19 February 2024, the applicant confirmed and clarified that his intention is to appeal to this Court, instead of the CFA.  We will therefore treat the Notice of Motion as an appeal to this Court.

6.Whether the notice of appeal should have been expunged is an interlocutory matter in relation to a cause pending before us, we considered it appropriate to determine this matter on paper pursuant to Order 59 r.14A(1) of the Rules of the High Court (“RHC”), having considered the materials, including the applicant’s written submission dated 15 February 2024.[2] We further note that the Judgment was given in English, stating at [3] that the applicant is conversant in English and had previously informed the court that he was educated in the UK.  The Expunction Order and Registrar CA’s reasons were also set out in a letter in English.[3]  We accordingly give this judgment in English.

Discussion

7.Mr Lai was not initially a party to the leave application for judicial review.  While the applicant may apply to join another party to the proceedings with the court’s leave, he cannot do so without leave.  The applicant asserted in his submissions that it was his right as a litigant, prior to the substantive hearing or trial,[4] to join another party. This is clearly incorrect.  As it was held in Re Raschpal Singh [2020] HKCA 978 at [1]:-

“Unless there is a court order granting leave … the parties to a set of proceedings are those named in the originating process. It is not up to an applicant or plaintiff to name some other party as party to the proceedings in any documents filed with the court without first making an application for substitution or joinder. … If such documents were somehow filed without the leave of the court, the matter should be brought to the attention of the Registrar who may give directions for expunging the improper documents from the record. It would then be up to the filing party to file a document with the proper party named in it.”

8.The applicant referred to a purported amended Form 86 on which Mr Lai appeared as the 2^nd respondent.  But this document was in fact filed as an exhibit attached to the applicant’s affirmation in support of an earlier application to join Mr Lai, which was refused by the Judge.[5] The applicant also referred to the case of HCPI 471/2019 in which he was the plaintiff.  In that case, however, the change of parties was made under a court order.[6]  In the instant case, there can be no answer to the point that the purported joinder of Mr Lai was made without leave.  The Registrar CA was plainly right to make the Expunction Order.

9.We accordingly dismiss the applicant’s appeal and the Notice of Motion.  This appeal being ex parte; and although both the applicant and the Secretary had earlier made written submissions to the Registrar CA upon invitation, neither the Secretary nor any other putative party has taken part in the proceedings before us.  In the circumstances, we will make no order as to costs.