Cheng Shu Ki v. 香港天主教區 and Others

HCAL 1006/2024

[2024] HKCFI 2780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1006 OF 2024

____________________

____________________

________________

JUDGMENT

________________

1.This is the Applicant’s (“Cheng”) application for leave to apply for judicial review. He requested that this application be heard in open court.

2.By his Form 86, Cheng seeks to set aside the decision of the Catholic Diocese of Hong Kong[1] (“Diocese”) to appoint Dr Mok Chun-keung[2] (“Mok”) as a permanent deacon on 29 June 2024 (“Decision”) and asks for interpretation of freedom of religion under the Basic Law.

3.Five putative respondents and five interested parties had been named in the Form 86. The Diocese, Mok and the Bishop of the Diocese, who is one the persons named as the 5^th Interested Party (“香港天主教區主教周守仁、副主教及天主教區任何神職人員”), are represented by Mr Wong. The Home and Youth Affairs Bureau, the Security Bureau and the Constitutional and Mainland Affairs Bureau were named as the 2^nd to 4^th Putative Respondents, whilst the Secretary for Security, the Secretary for Home Affairs and Youth and the Secretary for Constitutional and Mainland Affairs were named as the 2^nd to 4^th Interested Parties (“Government Parties”). They are represented by Ms Siu. The rest of the parties did not appear at the hearing.

4.Cheng did not appear at the hearing. On 3 October 2024, he filed an affidavit (“Cheng (2)”) which was said to be in support of a Summons filed on the same day. No such Summons can be found in the court file. Cheng (2) referred to a 32-page attachment. According to page 1 of the attachment, Cheng is seeking to have this application dismissed (“撒銷”) with no order as to costs.

5.For the reasons set out below, I can find no merit in this application and it should be dismissed regardless of Cheng’s position.

6.I should firstly deal with a request by Cheng for an anonymity order. On the face of it, this request is contrary to his request for an open court hearing. Further, such order is out of the ordinary and has to be sufficiently justified. The only ground in support is an unparticularised concern on Cheng’s part about potential attack or harassment by radical members of the Diocese. The bare assertion does not constitute sufficient justification and the application must be declined.

7.The Form 86 did not set out any ground for the application. This is a breach of mandatory requirement and by itself fatal to this application (see Robinson v香港特別行政區政府入境事務處生死登記官郭俊峯先生 [2024] HKCFI 2479, [3]).

8.In respect of Cheng’s affidavit which was attached to the Form 86 (“Cheng (1)”), the only complaint in the affidavit which is of relevance to the Decision is the allegation that Mok was (at the material times) under investigation by the police and the Medical Council. In addition, there was a personal injuries action against him (amongst others) on foot. Therefore, Mok’s integrity or character was questionable.

9.Cheng (1) contained other accusations such as the lack of a transparent process for dealing with grievances against the conduct of the clergy; allegations of inappropriate liaison between the Diocese and Mainland religious organisation; and the suggestion of establishing a council by the Government to regulate the conduct of the clergy. Apart from the lack of sufficient evidence to substantiate the accusations[3], none of these matters can constitute proper ground to challenge the Decision. They are, in any event, outside the parameters of judicial review.

10.As for interpretation of the Basic Law, Cheng has not explained how the Decision contravened the Basic Law. Nor has he raised any issue on how the provisions of the Basic Law on safeguarding freedom of religion should be interpreted. There is nothing in the point.

11.Turning to Cheng’s complaint about the appointment of Mok by the Diocese as a permanent deacon, it is trite that such a decision is not amenable to judicial review. It is a matter of religious function and not one with a true public law character. The court is not to be drawn into adjudicating upon matters intimate to a religious community: see R v Chief Rabbi of the United Hebrew Congregations of Great Britain and the Commonwealth, Ex parte Wachmann [1992] 1 WLR 1036 and De Smith’s Judicial Review, 9^th edn, [3-053].

12.Any reform over the supervision of religious appointment is a matter for the legislature, not the court.

13.In the premises, this application is ill-conceived as a matter of law. Further, it appears that this application was motivated by Cheng’s grievance that he was allegedly subjected to inappropriate medical treatment by, inter alia, Mok. The materials put forward by Cheng showed that he had made police reports against a large number of medical practitioners, including Mok. It appears that the personal injuries action Cheng referred to was brought by him. It is likely that the Medical Council investigation was similarly initiated by Cheng.

14.By a letter to Cheng dated 28 May 2024, the Bishop of the Diocese had endeavoured to answer the various accusations made by Cheng, and pointed out to him that the appointment of Mok was not susceptible to judicial review. Regrettably, the advice was ignored. Coupled with the fact that this application was motivated by Cheng’s personal grievance over Mok, it calls into question whether these proceedings have been properly used.

15.For these reasons, this application is dismissed. As for costs, the only reason advanced by Cheng that he should not bear the costs of these proceedings is his impecuniosity. This cannot by itself be a valid reason, otherwise litigants in similar position would enjoy a hugely unfair advantage.

16.I am satisfied that the costs of the Respondents and Interested Party who appeared at the hearing were occasioned by Cheng’s insistence on an open court hearing. The application could have been dealt with on paper (as is the normal course) without adverse costs implication for Cheng. The submissions of Mr Wong and Ms Siu are of assistance to the court. I bear in mind also the lack of merit of this application and the principles set out in Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841.

17.For these reasons, I order that the costs of the Diocese, Mok and the Bishop of the Diocese as well as the Government Parties be paid by Cheng. Such costs are to be summarily assessed. Cheng had been served with the statements of costs by these parties. He is to provide his comments thereto with 14 days from the date of this Judgment[4]. Any reply (limited to 2 pages) is to be lodged and served within 7 days thereafter. The assessment will be dealt with on paper.

Mr Thomas WK Wong, instructed by Wong, Hui & Co., for the 1^st and 5^th Putative Respondents, the Bishop of the Catholic Diocese of Hong Kong and the 5^th Interested Party

Ms Carmen Siu, Senior Government Counsel, for the 2^nd to 4^th Putative Respondents and 2^nd to 4^th Interested Parties

The Applicant being absent