Ponomarova Olena v. Judicial Assistant Lau Yuek-lan and Others

HCAL 1141/2024

[2025] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1141 OF 2024

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D E C I S I O N

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A. Introduction

1.Procedural steps or rules are not unjustified just because a person finds it difficult – or does not wish to – comply with them. Much less are they illegal, improper or unreasonable in the public law sense.

2.But, by her Form 86 dated 16 July 2024, the Applicant seeks leave to apply for judicial review to challenge what she describes as the “routine denial and unjustified barriers for registering cases in the Court of Final Appeal by the Registry staff”.

3.As can be seen from the heading to this Decision, a number of members of the staff at the Registry are named by the Applicant as the Putative Respondents – though it is probably fair to say that the main target of complaint is the 6^th Putative Respondent (“Registrar”). The named Putative Interested Party is the Chief Justice (“CJ”).

4.The application arises out of the circumstances when the Applicant wished to apply to the Court of Final Appeal (“CFA”) for leave to appeal from two decisions of the Court of Appeal (“CA”) in two sets of proceedings – CACV 313/2022 and CAMP 314/2023. The Applicant found it difficult to comply with various requirements when filing documents with the CFA. Hence, her main complaint is as to the manner in which she says she was treated by the Registry staff, and in particular, against the rules and requirements for making a viable and fully constituted appeal application at the CFA.

5.In broad summary, the Applicant contends that the Putative Respondents acted ultra vires, implemented an “unauthorised and procedurally improper screening process”, and violated her right to access to justice and the courts under Article 35 of the Basic Law (“BL 35”).

6.On 18 July 2024, I gave directions to permit the Putative Respondents and Putative Interested Party to file and serve an Initial Response to the application. The Initial Response dated 20 September 2024 was signed by Mr Eric Kwong and Ms Vicky Wong, both Government Counsel. On 21 October 2024, I requested the Applicant to provide a Reply (if any) to the Initial Response. Though the Applicant filed a Reply on 18 November 2024, referring back to a letter sent to the Court on 29 October 2024, I do not think that either document contained any substantive reply to the points raised in the Initial Response. Hence, the Applicant’s points made in support of her application are to be found in the original materials filed by her, and her oral submissions.

7.The Applicant requested an oral hearing of her application, and I allowed the Applicant to attend via videoconference upon her request made in January 2025. The application for leave to apply for judicial review was heard via videoconferencing facilities on 17 March 2025. I had already excused the Putative Respondents from attending the hearing after Mr Kwong on their behalf indicated that they were content to rely on the Initial Response and would not make oral submissions.

8.For my later reference, I caused a transcript to be kept of the hearing, at the end of which I reserved my decision to be handed down in due course. This is that Decision.

B.  Factual Background

B.1  The 1^st CFA Leave Application (CACV 313/2022)

9.For present purposes, there is no need to rehearse the background to CACV 313/2022 at any length, though it can be found recited in the CA’s decision [2023] HKCA 1170, and it suffices to provide some brief context to the dispute.

10.On 22 July 2019, the Applicant entered into an employment contract with a Northcroft Hong Kong Limited (“Northcroft”). She commenced proceedings against Northcroft in the Labour Tribunal for (amongst other things) damages for unlawful termination of contract. On 20 October 2021, he applied for legal aid to bring her claim, but her claim was rejected by the Director of Legal Aid on 3 December 2021. She appealed against that decision. Master Kent Yee heard and dismissed the appeal.

11.On 22 April 2022, the Applicant then commenced HCAL 249/2022, by Form 86 seeking leave to apply for judicial review of Master Kent Yee’s decision. I heard that application and rejected all intended grounds of review in a written decision, [2022] HKCFI 2243. In the CA’s decision [2023] HKCA 1170, the CA upheld my decision.

12.On 15 April 2024, the Applicant lodged – but did not successfully file – a notice of intended application for leave to appeal to the CFA. This is known as a Form A. She also lodged – but did not successfully file – an application for leave to appeal to the CFA. This is known as a Form B (“1^st CFA Leave Application”).

13.The Applicant says that, from this point onwards, she faced various unjustified barriers or hurdles in registering her case.

14.The first and second “hurdles” took the form of (1) the Registry’s refusal to remit fees that must be paid if an application for leave to appeal to the CFA is to be filed, and (2) the Registry’s direction to the Applicant to seek the consent of the Official Receiver’s Office (“ORO”) to apply for leave to appeal to the CFA in light of the bankruptcy order made against the Applicant.

15.On 15 April 2024, the Applicant submitted an application for remission of two sets of fees:

(1)  HK$1,045 which was required to be paid under rule 1(1) and Fee No.1 of the Schedule to the Hong Kong Court of Final Appeal Fees Rules Cap 484B (“Cap 484B”).

(2)  The photocopying fees of 3 sets of the relevant judgments, which were required under rule 5(1) of the Hong Kong Court of Final Appeal Rules Cap 484A (“Cap 484A).

16.The application was made on the basis that her monthly income was HK$1,000 to HK$2,000, she had been “unemployed” for 2 years and 5 months, she was saddled with “various” debts, and that “the relevant lower court judgments were payable online”. However, she did not provide corroborating evidence, such as bank statements or evidence of her debts. On 19 April 2024, the Applicant sent a further letter to the CFA Registry asking for determination of her application for remission.

17.On 22 April 2024, the Applicant also sent a letter addressed to her from the Official Receiver’s Office (“ORO”) to the Registry, thereby informing that a bankruptcy order had been made against her on 15 April 2024.

18.On 23 April 2024, the Registrar (through the 5^th Putative Respondent) denied the application for remission under rule 1(2) of Cap 484B, and reminded the Applicant that since a bankruptcy order had been made against her, “any action with a view to pursue a monetary claim should be consented to by the Official Receiver or his Trustee in Bankruptcy”.

19.On 24 April 2024, the Applicant (among other things) denied her claim in CACV 313/2022 was a monetary claim. On 25 April 2024, the Registrar again told the Applicant that she may wish to seek advice from the Official Receiver.

20.On 25 April 2024, the Applicant sent a letter titled “Unbreakable Closed Circuit of Denial of Access to Justice”, whereby she complained to the CJ that there had been a “systemic denial of justice” in part due to her inability to apply for leave to appeal as a result of the Registrar’s refusal to remit her fees. (Though not material for present purposes, she also complained that her inability to pay for even basic needs and obligations were created by the Legal Aid Department, as it repeatedly declined her applications, and said that she had considerable mistrust in the judges of the High Court.)

21.On 30 April 2024 – perhaps because the Applicant did not indicate whether she would seek the ORO’s advice to consent to her application – the Registrar asked the ORO whether it would object to the 1^st CFA Leave Application.

22.On 28 June 2024 – and after some back-and-forth between the ORO and the Applicant – the ORO indicated that it did not object to the 1^st CFA Leave Application.

23.After reading the said letter and on 2 July 2024, the Registrar told the Applicant, via the 1^st Putative Respondent, that if the Applicant paid the requisite fees, she would be able to lodge the 1^st CFA Leave Application. The Applicant eventually paid the fees.

24.On 10 July 2024 – having cleared the first and second “hurdles” – the Applicant ran into her third hurdle when she approached the CFA Registry to file her Form B.

25.Under rule 4(1) of Cap 484A, a notice for leave to appeal to the CFA (i.e. a Form B) must set out “the same title as the court below, but the parties should additionally be described as Applicant and Respondent”. According to the Applicant’s 1^st affidavit, she had attempted to “squeeze in the name of the interested party – the Director of Legal Aid – even though the template of Form B … did not reserve any space for the name of an interested party”. She also indicated on her Form B that Master Kent Yee should be the “Putative Respondent”, instead of the “Respondent”.

26.On 10 July 2024, the CFA Registry informed her that she had to rectify her Form B. The Applicant declined to comply and called the police. All the documents – including the Form B and lower court judgments – were returned to her.

27.The next day, the Applicant returned without rectifying the Form B. The Registry again explained to her what she had to do. But the Applicant refused to comply with those instructions. Eventually, the acting Registrar, Mr Simon Kwang, resolved the impasse by telling the Applicant that she could file (amongst other things) her Form B as long as she stated the correct title, and there was no need additionally to describe herself or Master Kent Yee as an “Applicant” or “Respondent”. Incidentally, the Applicant’s Form A was also defective, and in her evidence the Applicant accused the 1^st and 4^th Putative Respondents of pressuring her to state the correct title on it.

28.Eventually, on the same day, the Applicant filed (amongst other things) her Form B for the 1^st CFA Leave Application. The case number assigned to her application was FAMV 88/2024.

29.On 4 December 2024, pursuant to rules 7(1) and 7(2) of Cap 484A, the Appeal Committee refused the Applicant’s leave application on the basis that it disclosed no reasonable grounds for leave to appeal.

B.2  The 2^nd CFA Leave Application (CAMP 314/2023)

30.Again, for present purposes, there is no need to rehearse the background to CAMP 314/2023 at any length, though it can be found recited in the CA’s decision [2024] HKCA 148. Essentially, the CA upheld the order of Wilson Chan J rejecting the Applicant’s application for leave to appeal against a Master’s order granting Northcroft security for costs against the Applicant (“Order”).

31.On 12 July 2024, the Applicant approached the CFA Registry and attempted make a second application for leave to appeal to the CFA (“2^nd CFA Leave Application”). On the same day, the CFA Registry invited her to leave one set of documents for the purpose of further directions.

32.According to the Applicant’s 1^st affidavit, she relented and left one set of application documents with the 4^th Putative Respondent and left the Registry on the same day at around 11:39am. In her 2^nd affidavit, she said that “no documents were collected from me” even after 5:30pm. In any event, I do not have to decide which of the Applicant’s recollections were correct, because this is not the target of her ire.

33.On 16 July 2024, the Registrar indicated via a set of directions that the Registry had received (amongst other things) the second Form B on 15 July 2024. He made clear that the documents had not been accepted for filing. More importantly, he identified an insuperable obstacle to the Applicant’s 2^nd CFA Leave Application, namely: (1) that under section 14AB of the High Court Ordinance Cap 4 (“HCO”), which has the helpful title ‘Decision on leave to appeal final’, no appeal lies from a decision of the CA on whether leave to appeal to the Applicant should be granted, and (2) the case fell squarely within section 14AB of the HCO.

34.As such, the Registrar concluded that the documents submitted by the Applicant for her 2^nd CFA Leave Application “cannot be accepted for filing” and would “not be entertained by this Court”. If the documents were not collected by the Applicant, they would be disposed of.

35.By letter dated 26 July 2024, the Applicant – for some reason – did not acknowledge that she could not make her 2^nd CFA Leave Application. Instead, she said that she would “amend” her Form B and “prepare a new affidavit” in support of her 2^nd CFA Leave Application. She also invited all parties – including the CJ and the ORO – to adopt and actively participate in a negotiation procedure.

36.On 1 August 2024, the Registrar (politely) noted the Applicant’s submissions. But, he again noted that section 14AB of the HCO meant he could not possibly entertain the 2^nd CFA Leave Application. The Registrar further stated that unless the Applicant made a constitutional challenge to section 14AB of the HCO – in which case the Form B for the 2^nd CFA Leave Application should be further amended – the legal challenge to the Order would be final and unappealable.

37.Again, the Applicant did not seem to understand the Registrar’s directions. Even though the Applicant did amend her Form B and sent it to the Registry on 2 August 2024, the amended Form B still did not contain a constitutional challenge to section 14AB of the CFO.

38.On 5 August 2024, the Registrar again told the Applicant– if necessary – to mount a constitutional challenge against section 14AB of the HCO directly, and to spell that out in her Form B “explicitly”. She did not.

B.3  The Applicant’s suggested ‘Civil Justice Reform in 2024’

39.Though not strictly necessary for the purpose of considering the present application, I expressly acknowledge the letter/document addressed to the CJ, the Executive Council Secretariat, the Legislative Council Secretariat, the Registrar of the CFA, the ORO, the Chief Judge of the High Court, and myself, headed ‘Civil Justice Reform 2024’.

40.In that document, the Applicant complains of a general denial of access due to “artificially created, unjustified barriers”, arising from what she describes as “the underlying flaws and deficiencies of Hong Kong’s civil procedure”. The Applicant offers “feedback” on selected points, as well as identifying comments on the cases in which she has herself been a litigant. She seeks to highlight that her own “unresolved legal dispute exemplifies the urgent need for reform to ensure a fair, efficient, and contemporary legal system”.

41.It can be seen that her thinking expressed in that document has informed the making and content of the Applicant’s present application for leave to apply for judicial review, and the points of criticism raised by it.

C.  The Intended Grounds of Review

42.The Form 86 identifies the relief sought by the Applicant, including the following:

(1)  to issue guidance to the Registry staff on the requirements for registering leave applications in the CFA;

(2)  to issue an order prohibiting the Registry staff from creating unjustified barriers for prospective parties, including barriers created by invented unofficial rules on handling papers and applications, which further distances prospective litigants from the Court;

(3)  to issue and publish clear and up-to-date official instructions to all parties concerned with regard to naming allowances and limitations in the legally required documents, and the sequence of actions for registering a case for leave to appeal to the CFA;

(4)  to issue clear instructions with regard to logging directions-seeking and the creation of the shareable use cases knowledge base, as opposed to the traditional ad hoc one-time use, before registering applications for leave to appeal to the CFA; and

(5)  costs and damages as the Court deems fit.

43.As the basis for seeking that relief, the Form 86 identifies three grounds of review.

(1)  Ground 1 – ultra vires / illegality:

Specifically, the Applicant says that: internal rules and procedures of the CFA cannot override the provisions of the Court of Final Appeal Ordinance Cap 484 (“CFAO”) and the Basic Law, and the Registry’s requirement to make “additional inscriptions on Form B, which were not mandated by any statutory provisions, constituted actions outside their legal authority”; and the Registry’s insistence on modifications to Form B further “exemplifies” the illegality of its actions.

(2)  Ground 2 – procedural impropriety:

The Applicant complains that the Registry implemented an “unauthorized and procedurally improper screening process”, by forcing her to submit a “pre-application” before allowing the case for leave to appeal to the CFA to proceed. This screening process was not stipulated by the CFAO and/or any other relevant legal provisions. Thus, this screening process was procedurally improper.

(3)  Ground 3 – unconstitutionality:

The Registry’s actions violated her BL 35 right and were thus unconstitutional as it refused to register her application, demanded unnecessary modifications, and delayed her registration process without justifiable cause.

44.Save for the requirements relating to Form B as stipulated in Cap 484A, the Applicant did not identify or describe the “internal rules / procedures” of the Registry that she wishes to impugn. Nor did she further describe the Registry’s supposed “pre-screening process” in any detail. I am grateful to Mr Kwong in this regard for identifying in the Initial Response all the possible rules/procedures that are sought to be impugned.

45.It is trite that, in order to obtain leave to apply for judicial review, the Applicant needs to have identified reasonably arguable public law grounds of review with a realistic prospect of success. The Putative Respondents invite me to find that this application has no realistic prospect of success, such that the Applicant should not be granted leave.

D.  Ground 1 – ultra vires

D.1  The 1^st CFA Leave Application

46.In her submissions, the Applicant emphasised that she brought the judicial review application because she could not simply complete the filing procedure with the Registry of the CFA, despite spending considerable effort and complying with the instructions and guidance available to her. Hence the question is whether it is a “smart barrier which is designed for saving other resources or if it is a hindrance and it has to be taken care off”. Further, the problems could be “resolved by an alternative procedure”.

47.However, I do not think those submissions really address the question of whether the Putative Respondents have acted ultra vires or illegally – the matter which actually falls for consideration.

48.As regards the Applicant’s remission application:

(1)  The Registrar’s decision to deny remission of the application fees was made pursuant the statutory provision in rule 1(1) and the Schedule of Cap 484B.

(2)  I do not think the Registrar’s exercise of discretion was impugnable in any way.

(3)  The Applicant simply did not submit evidence as to her impecuniosity. Though I note that the Applicant’s “affidavit” on 6 August 2024 “exhibits” 20 pages of her bank statements with HSBC from 9 February 2024 to 27 July 2024, these were simply not given to the Registrar. It is difficult to fault the Registrar if the Applicant did not give evidence as to her impecuniosity to justify remission.

(4)  The Applicant’s subsequent ability to furnish her bank statements also puts paid to her contention that she was not able to do so when applying for remission because ‘printing them out would cause her to have less money for food’.

(5)  The Applicant makes a throwaway complaint that the Registrar did not give reasons for refusing the remission. The Registrar was clearly entitled not to do so – indeed, he is only required to give a reason under rule 1(2) of Cap 484B if he does “reduce, remit, or defer payment”. In any event, I am satisfied the reason for not remitting the Applicant’s fees is obvious – the Applicant did not submit any supporting evidence.

The Applicant does not seem to take issue with the requirement that she must file 4 copies of the relevant judgments from which leave to appeal is sought under rule 5(1) of Cap 484A. But in any case, it cannot be said that the Registrar acted ultra vires by requiring the Applicant to submit the relevant judgments in accordance with stated legal requirements.

49.I am also satisfied the Putative Respondents acted without fault when asking whether the application should first be consented to by the ORO in light of the bankruptcy order against the Applicant:

(1)  Section 58(1) of the Bankruptcy Ordinance Cap 6 (“BO”) provides that on the making of a bankruptcy order, the property of the bankrupt shall vest in the Official Receiver, and under section 2 of the BO rights of suit or action are choses in action which fall within the definition of “property” under the statute.

(2)  It is settled that the Official Receiver has the right to determine whether or not a right of action vested in the bankrupt should proceed, subject to one exception – namely, the bankrupt retains the right to bring or continue proceedings (including appeals) which are personal to him (such as personal injuries or defamation).

(3)  Whether a judicial review is personal to the bankrupt depends on the nature of the review sought. For example, if the ultimate object of a judicial review is to reduce tax liability, then it cannot be ‘personal’.

(4)  It was thus perfectly reasonable and proper for the ORO to be consulted first, given that (1) prima facie the ORO has the right to determine whether or not a right of action vested in the bankrupt should proceed, and (2) whether a judicial review is personal to the bankrupt depends on the ultimate object of the judicial review. Here, prima facie, the ultimate object of CACV 313/2022 was to get legal aid (i.e. money) in order to pursue a money claim.

(5)  This is so irrespective of whether the 6^th registrar was right to characterize the judicial review as for a “monetary claim”.

(6)  It also does not matter that the ORO later indicated a lack of any objection.

(7)  Further the 1^st CFA Leave Application was in fact accepted, and given an application number, albeit that the application was later dismissed as having no merit.

50.The Putative Respondents were also clearly right to insist on the correct title for Form B as required in rule 4(1) and the Schedule of Cap 484A. The Applicant cannot insist on adding the “Director of Legal Aid” as a putative interested party or add “Putative” in front of “Respondent” just because she wishes to do so.

D.2  The 2^nd CFA Leave Application

51.The decision not to entertain the 2^nd CFA Leave Application by the Registrar was also plainly unimpeachable. Section 14AB of the HCO says so. Indeed, the Registrar would not be discharging his duty if he allowed the 2^nd CFA Leave Application to proceed.

52.Hence, Ground 1 is not reasonably arguable with any realistic prospect of success.

E.  Ground 2 – procedural impropriety

53.According to the Form 86, the steps taken by the Registry were procedurally improper only because they were not stipulated under the CFAO or other statutory provisions. That is simply wrong – each step can be justified under the various statutory provisions that I have referred to above.

54.Ground 2 is also not reasonably arguable with any realistic prospect of success.

F.  Ground 3 – BL 35

55.The Applicant’s contention in this regard again depends on whether the various requirements were “unnecessary” or “without justifiable cause”. As shown above, each requirement that the Registry enforced is prescribed by law.

56.They also make perfectly good sense. For example:

(1)  Mobilising the CFA’s resources takes time and money. Thus, it is not unreasonable for litigants – the parties who wish to mobilise those resources – to pay a reasonable sum.

(2)  A remission of fees is an exception to the general norm that the litigant should normally bear a fraction of the costs for mobilising the CFA’s resources. It is no surprise that an applicant who applies for the remission must convince the Registrar that it is an appropriate case. Indeed, that must be why the Registrar is obliged to give reason therefor if he does decide to reduce, remit or defer payment of a fee.

(3)  Requirements relating to the title of Form B are necessary for administrative workability and convenience. They also facilitate broad uniformity of approach for all applicants. It is not difficult to foresee at least the confusion and administrative inconvenience, if not chaos, that would ensue if individual applicants were free to choose, label, and get completely wrong (1) who the proper party to the cause, matter, or hearing should be, and (2) the capacity in which he or she appears.

(4)  The Applicant plainly recognises that section 14AB of the HCO is not unnecessary, given that she herself did not make a constitutional challenge against that provision despite being invited by the Registrar to do so twice.

(5)  Asking the ORO for its consent before any application for leave to appeal to the CFA is entertained permits ensuring that an applicant cannot circumvent the bankruptcy regime, which applies to all bankrupts without exception.

57.For these reasons, Ground 3 is also not reasonably arguable with any realistic prospect of success.

G.  Result

58.None of the intended grounds of review is reasonably arguable. In fact, the criticism of the Putative Respondents is misplaced and unfair. Each action taken by Registry staff was fully justified by the applicable rules of procedure, and it seems that Registry staff members and the Registrar have sought to deal with the Applicant politely and to afford her assistance in complying with the rules of procedure. The Applicant herself has recognised that she was given instructions and guidance.

59.Unfortunately, perhaps as a result of her overall dissatisfaction with the litigation thus far brought by her, and her own view that the present rules create unnecessary “barriers” and that there could be a better procedural system, the Applicant appears to have acted somewhat truculently.

60.I also reject the Applicant’s broad submission that there is “procedure just for the sake of procedure”, as well as her suggestion that “the problem is the system design, and judicial review proceedings are part of the problem support system”. Rules of procedure are typical in dispute resolution, and they do not exist simply for their own sake. They exist to promote and facilitate, and are to be applied so as to further, the underlying objectives found in, for example, Order 1A rule 1 of the Rules of the High Court. They are applied uniformly. In any event, the Court exercising its supervisory jurisdiction in judicial review is not a further tier of appeal and does not exist to design systems. Rather, it seeks to ensure and encourage, and where necessary enforce, that those who exercise public functions do so in accordance with the law. The essence of the supervisory jurisdiction is in seeking to ensure and uphold the integrity of the decision-making process by testing that process against the well-defined requirements of public law.

61.With respect, what the Applicant appears to seek to achieve from this application is misdirected, and her claimed public law errors are not reasonably arguable.

62.The Applicant’s application for leave to apply for judicial review is dismissed.

63.As to costs, I acknowledge the force of Mr Kwong’s submission that an adverse costs order should be made against the Applicant, given that she has made another thoroughly ill-conceived and unmeritorious application for leave to apply for judicial review. I also take into account that (1) I would have disposed of the leave application on paper but for the Applicant’s request for an oral hearing, and (2) the Applicant made impassioned but ultimately irrelevant pleas for an “alternative format for iterative process improvement” during large parts of the hearing.

64.I hope the Applicant – if she is ever to make an application for leave to apply for judicial review in the future – will carefully consider the merits of her claim and seek legal advice, if necessary. But in the circumstances and giving every possible latitude to the Applicant in the exercise of my discretion as to costs, I will on this occasion make no order as to costs.

The applicant, acting in person

Mr Eric Kwong and Ms Vicky Wong, Government Counsel, of the Department of Justice, acting for the putative respondent and excused from court attendance