林進傑 v. Ombudsman

[English Translation - 英譯本]

CACV 473/2022, [2025] HKCA 122

On Appeal From [2022] HKCFI 3469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 473 OF 2022

(ON APPEAL FROM CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1169 OF 2022)

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JUDGMENT

Hon Chu VP (giving the Judgment of the Court):

1.This court delivered a judgment[1] on 24 November 2023, dismissing the applicant’s appeal against the decision of Hon Coleman J dated 23 November 2022.

2.On 21 December 2023, the applicant filed a notice of motion, seeking leave to appeal to the Court of Final Appeal against the judgment of this court.

3.As the applicant had applied for legal aid, the Director of Legal Aid filed a notice of application on 1 December 2023. Pursuant to section 15(4) of the Legal Aid Ordinance, Cap 91 of the Laws of Hong Kong, all proceedings in this application were stayed for 42 days. On 8 February 2024, the Director of Legal Aid filed a notice of refusal regarding the legal aid application.

4.By letter, the applicant informed the court on 3 January 2024 that “at this stage” he had “no additional skeleton submission” regarding the notice of motion. According to the directions of the Registrar of Civil Appeals dated 29 January 2024, the applicant was deemed to have waived his right to submit a skeleton submission under paragraph 3(a) of Practice Direction 2.1. However, the applicant later wrote to the court, putting forward some arguments and authorities regarding the written submission adduced at the stage of appeal and the judgment of this court, of which we have given consideration when dealing with the present application.

5.The putative respondent filed no written submission for the present application of the applicant.

6.Having considered the notice of motion, we are of the view that it is appropriate to adopt the procedure under paragraph 3 of Practice Direction 2.1; namely, that it is to be dealt with and determined on paper without an oral hearing.

7.The factual background of this case and the issues of the trial and the appeal have been detailed in the judgment of this court, which will not be repeated here.

8.Section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484 of the Laws of Hong Kong, provides that it is at the discretion of the Court of Appeal to grant leave to appeal to the Court of Final Appeal if in the opinion of the Court of Appeal the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.The notice of motion raised the following two questions (“Question (1)” and “Question (2)” respectively):

(1) “Whether the approach to statutory construction set out in paragraph 5 of the applicant’s submission in CACV473/2022 (submission) dated 4 October 2023 is applicable in the present case, in particular when paragraph 9(e) of the Explanatory Memorandum of the Commissioner for Administrative Complaints Bill 1988 states that paragraph 5 of Schedule 2 of the Ordinance is only applicable to persons holding salaried positions under the Hong Kong Government (see paragraphs 24-27 of the submission).”

(2) “How paragraph 5 of Schedule 2 of the Ombudsman Ordinance (“Ordinance”) should be construed: Whether or not the approach to statutory construction set out in paragraphs 6-18 of the applicant’s submission (submission) in CACV473/2022 dated 4 October 2023 is correct.”

10.The notice of motion sets out the bases of the application respectively which are:

(1)  The applicant’s intended appeal is of great general or public importance. This is because the Ombudsman is a statutory body established according to the Ordinance and operated with public funds. Its interpretation of paragraph 5 of Schedule 2 of the Ombudsman Ordinance has a great impact on the public, affecting whether it can investigate actions taken in respect of personnel matters by the Permanent Secretary of the Education Bureau, and these actions are directly binding on the aided primary and secondary schools which account for the majority of the schools in Hong Kong.

(2)  The applicant’s intended appeal, by reason of otherwise, ought to be submitted to the Court of Final Appeal for decision. This is because the approach to statutory construction in the present case was not properly discussed in the Court of First Instance and the Court of Appeal, and paragraph 10 of the applicant’s submission dated 4 October 2023 was erroneously stated in paragraphs 18(3) and 20 of the judgment of the Court of Appeal where the applicant’s arguments were mistaken, which is unfair to the applicant.

11.For Question (1), it is submitted in paragraph 5 of the applicant’s appeal submission lodged on 4 October 2023 that in modern statuary construction, the provisions are construed in their context and purpose from the start instead of at a later stage when an ambiguity arises. The court cannot give a provision a meaning of the words which is inconsistent with the legislative intent. When deciding the legislative intent, the court may refer to materials such as reports of the Law Reform Commission and explanatory memorandum of the bill.

12.The legal principles of statutory construction are well established in many cases in the Court of Final Appeal. The Chief Justice of the Court of Final Appeal has recently given a clear explanation again in HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, [10]-[11] that:

“10. The rules of statutory construction are well established. Words are construed in their context and purpose. They are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise. A purposive and contextual interpretation does not mean that one can disregard the actual words used in a statute. Rather, the court is to ascertain the intention of the legislature as expressed in the language of the statute. As has been repeatedly pointed out, one cannot give a provision a meaning which the language of the statute, understood in the light of its context and purpose, cannot bear.

11. Context here is to be taken in its widest sense and includes other statutory provisions and the general law. The purpose of a statutory provision may be evident from the provision itself, the recommendation of a report such as that published by the Law Reform Commission, the explanatory memorandum to the relevant bill or a statement by the responsible official of the government in relation to that bill in the Legislative Council. It may also be relevant in any given case to look at the history of the provision concerned.”

13.As for paragraph 9(e) of the Explanatory Memorandum of the Commissioner for Administrative Complaints Bill 1988 mentioned in Question (1), it is explained that, in the Ordinance, “Schedule 2 lists the decisions and matters which are not considered to be appropriate for investigation by the commissioner for a variety of reasons”, and “item 5 is concerned with pay, discipline and conditions of service of public officers and others serving the Government”. In Question (1), it is stated that paragraph 9(e) explains that paragraph 5 of Schedule 2 is “only applicable to persons holding salaried positions under the Hong Kong Government”, which is incorrect.

14.In any event, as pointed out by the Chief Justice of the Court of Final Appeal, in statutory construction, the court must give a provision its natural and ordinary meaning, and when considering the legislative background and purpose, the court cannot ignore the actual words used and the clear meaning and purpose thereof. This court has pointed out in its judgment that the provision and meaning of paragraph 5 of Schedule 2 are clear, the explanatory memorandum of the bill is of little help in understanding the legislative background and purpose of the provision, and it is even less helpful in the applicant’s contention in respect of the construction of paragraph 5.

15.The legal issue raised in Question (1) is well established and uncontroversial, and the applicant’s intended argument on this issue is unfounded. Question (1) therefore does not comply with the stipulation of section 22(1)(b).

16.As for Question (2), it requests the Court of Final Appeal to re-assess the applicant’s arguments put forward in the appeal regarding the construction of paragraph 5(b) of Schedule 2 of the Ordinance. The applicant submitted that his arguments were misconceived by this court. Paragraph 18 of the judgment of this court outlines the applicant’s appeal arguments, one of which is set out in paragraph (3):

“Paragraph 5(a) of Schedule 2 mentions ‘Government’ and ‘any organization’ simultaneously. It is obvious that Government is excluded from the definition of ‘any organization’. Otherwise, the term ‘Government’ alone will suffice without the need to distinguish ‘Government’ from ‘any organization’”.

The applicant said that his submission means:

“The Ordinance sets out the terms ‘Government’ and ‘any organization’ separately and simultaneously. It is obvious that government departments are excluded from the definition of ‘any organization’. Otherwise, the term ‘any organization’ alone will suffice in the provision. It is because according to the interpretation, the term ‘organization’ refers to the organizations specified in Schedule 1, which covers organizations including government departments as well as the Education Bureau.”

17.We are of the view that even though the two expressions are different, they are basically the same. They mean that the definition of the term “any organization” does not include “Government”, and for this reason, paragraph 5(a) of Schedule 2 mentions both “Government” and “any organization” simultaneously. Moreover, it is pointed out in paragraph 18 of the judgment of this court that the applicant’s ultimate contention is that in the context of paragraphs 5(a) and (b) of Schedule 2, the term “any organization” does not include government departments so that it is not necessary to consider the definition of the term “organization” under section 2(1) of the Ordinance. We disagree with the applicant’s contention that his submission on the interpretation of paragraph 5 of the Ordinance was not properly discussed and was distorted by this court, resulting in injustice.

18.Furthermore, based on the analysis of paragraphs 20 to 22 of the judgment of this court, even according to the applicant’s submission, his contention—that the definition of the term “organization” in section 2(1) of the Ordinance is not applicable, thereby rendering the organizations specified in Schedule 1 inapplicable to the interpretation of paragraph 5 of Schedule 2—is legally unfounded and therefore untenable.

19.For the above reasons, Question (2) is unfounded and does not comply with the stipulation of section 22(1)(b).

20.In the applicant’s letter to the court, it is contended that based on paragraph 8 of the judgment of Lilik Andayani v Chan Oi Ling (unreported) CACV 104/2000 dated 9 September 2000, it is likely that his appeal has not been perfected as he has not yet received a sealed order of the appeal judgment, and therefore he requested the court to reconsider his submission on the interpretation of paragraph 5 of Schedule 2. However, this court had fully considered the applicant’s submission made in the appeal and delivered the judgment accordingly. Moreover, the applicant has also made an application for leave to appeal to the Court of Final Appeal against the judgment of this court. The applicant’s request in his letter is wholly unfounded.

21.In conclusion, this application does not comply with the stipulation of section 22(1)(b) and there is no other reason for submitting the case to the Court of Final Appeal for decision. We therefore refuse the applicant’s application for leave to appeal and dismiss the notice of motion.

22.As the putative respondent has not lodged any submission in this application, we made no order as to costs.

23.This court orders as follows:

(1)  The notice of motion be dismissed.

(2)  No order as to costs of the notice of motion.

The applicant, unpresented, acting in person.

Kao, Lee and Yip for the putative respondent.

Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor.