Tsang Ho Ming v. Lee Ka Chiu, John and Another

HCAL 833/2026

[2026] HKCFI 3168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 833 OF 2026

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BETWEEN

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DECISION

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A.  INTRODUCTION

1.By a handmade Form 86 filed on 30 April 2026[1], supported by an affirmation filed on the same day, the applicant seeks leave to apply for judicial review in respect of alleged decisions, acts, or omissions of the Chief Executive (“CE”)  and the Department of Justice (“DOJ”), who are named as the putative respondents to the application.

2.The applicant’s concerns arise out of the recent fire tragedy at Wang Fuk Court (“the Fire Incident”).  In his Form 86, the applicant asserts the following as the basis of his intended challenge:

(1)  The CE wilfully misconducted himself, by grossly neglecting to perform his constitutional duty (a) to lead the government of the HKSAR to formulate an effective fire safety policy, (b) to ensure an effective executive monitoring of any fire hazard, (c) to supervise the implementation and enforcement of fire safety laws by the “fire safety department” (presumably he meant the Fire Services Department (“FSD”)), so that (d) he is reckless as to whether death ensues.

(2)  The CE knowingly suffered or extremely recklessly disregarded the existence of a systemic corruption, namely a corrupted building repair system.

(3)  The DOJ’s decision not to prosecute the CE for the common law offence of “misconduct in public office”, when there is probable cause of the offence.

3.In his affirmation, the applicant in essence made the same assertion that the CE wilfully conducted himself by grossly neglecting to perform his constitutional duty.

4.By way of relief, the applicant seeks:

(1)  An arrest warrant to arrest the CE – because there is probable cause to believe that the CE committed: (a) a violation of common law being misconduct in public office; (b) a violation of the Basic Law Article 73 item 9 (“BL 73”)  and Article 47 (“BL 47”)  in failing to prevent the Fire Incident; (c) a violation of Article 22(3)  of the Law of the People’s Republic of China on Safeguarding National Security in the HKSAR – so that the CE may be brought before a court of law and be further dealt with according to law.

(2)  A declaration that the CE acted unconstitutionally because of the alleged dereliction of duty.

(3)  A declaration that the omissions of the CE constituted “serious … dereliction of duty” in BL 73, and thus the Legislative Council may act accordingly.

(4)  A declaration that the Secretary for Justice (“SJ”)’s decision to ignore or not to prosecute the CE for the common law offence of misconduct in public office is unconstitutional, because it took into account irrelevant political considerations and thus violated Basic Law Article 63 (“BL 63”).

5.Having considered the materials provided with the application, I am satisfied that it is appropriate to deal with the matter on paper.  This is my Decision.

B.  NO STANDING

6.Before potentially addressing the intended grounds of review, it is necessary to consider the question whether the applicant has sufficient standing to make this application.  Having carefully considered that question, it seems to me that this application should be dismissed on the preliminary point that the applicant lacks standing.

7.The governing provision is to be found in the Rules of the High Court (Cap.4A, Laws of Hong Kong)  (“RHC”)  Order 53 rule 3(7), which states that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.  At the leave stage, the Court should be satisfied as a threshold question that the applicant is prima facie a person with the necessary sufficient interest.

8.In the Form 86, the applicant claims standing on the following basis (sic):

“There is urgent need to make use of the impartial court’s judicial review power to make criminal complaint against high ranked executive official of the hksar government. Because even the so called impartial ICAC is directly under the incumbent chief executive of the hksar. Even if i report to ICAC, they will just play you and tell you to go home or will not open a case against the named defendant.”

9.I do not think that any of those points identifies the necessary sufficient interest.  Though the applicant is a member of the public who is living in the HKSAR where the executive head of Government is the CE, the applicant clearly has no obvious or direct interest in the subject matter of the concerns.  Indeed, in light of the genesis of this application, and the questions posed, the applicant is perhaps simply a “busybody”, and he is in my view seeking to interfere in matters that do not directly concern him, or where his interest is remote at best.

10.As I do not accept the standing of the applicant to bring this application for leave to apply for judicial review, leave must be refused.

C.  DELAY

11.It is trite that an application for leave to apply for judicial review should be made promptly, and in any event within the “long stop” three-month period after the grounds arose (unless an extension of time is granted on sufficient grounds).  

12.As to extending time, it is settled that the Court will take into account the circumstances including the length of the delay, the explanation for the delay, the merits of the intended application, and potential prejudice in the grant or refusal of additional time.

13.In this case, the applicant has suggested that because he is unrepresented, and the case involves public interest, “a little delay should be acceptable”.  He also suggests that there is no reason to require the date of the Fire Incident, 26 November 2025, as the starting point for the calculation of time, because the Independent Committee in relation to the Fire Incident unveils new evidence on a daily basis.

14.With respect, I disagree. 

15.The basis of the applicant’s concerns as expressed by him would have been apparent at the time of the Fire Incident.  There is no reason why the application should not have been brought promptly, well before the end of the long stop period.  However, the application was only commenced a further two months after the end of even that period.  Further, the explanation for the delay is not sufficient to justify extending time, and the merits of the application are in any event weak.  There is, therefore, no need to consider questions of prejudice.

16.Hence, since the application has been brought out of time, and no good reason has been shown for the grant of any extension of time, the leave application stands to be dismissed for that additional reason.

D.  INTENDED GROUNDS OF REVIEW

17.Although strictly speaking it is not necessary to do so, I would nevertheless briefly address the applicant’s five intended grounds of review, which were advanced broadly as follows:

(1)  Ground 1: HKSAR’s legislature has no real lawmaking power, but only power to pass or reject a bill introduced by the government by approving or disapproving a law bill.  Therefore, it is a serious dereliction of duty by the executive branch that directly or indirectly caused the death toll in the Fire Incident.

(2)  Ground 2: The element whether the CE is “wilfully” or “intentionally” misconducting himself in public office should be decided by the jury.  If he did not wilfully misconduct himself, then there is probable cause to believe that he acted in gross negligence.

(3)  Ground 3: The CE’s actions to save lives during the Fire Incident were underperforming and only focused on style and formalism.

(4)  Ground 4: The CE failed to supervise or reprimand his subordinate, notwithstanding that the FSD showed a serious dereliction of duty.

(5)  Ground 5: The argument that the HKSAR Government is only implementing and the issue of whether the government and its head continue building renovation policy and in good faith should be left open for the jury to decide.

18.None of them identify any reasonably arguable public law ground of review with any realistic prospect of success.

19.Ground 1 is a general criticism of the legislative body, with an illogical jump to assert some breach of duty by the CE.  There is no merit in this point.  Grounds 2, 3 and 4 essentially comprise general criticisms of the CE’s performance of his functions and duties, and do not identify any public law grounds of review suitable for the Court in its exercise of its judicial review function.

20.Grounds 2 and 5 further posit leaving hypothetical questions to a hypothetical jury in a criminal case, and also plainly do not identify any public law grounds of review for the Court in the exercise of its judicial review function.

21.Lastly, despite naming the DOJ as a putative respondent, no intended ground of review is directed specifically at the DOJ’s actions.  In any event, it is settled that prosecutorial decisions are for the SJ/DOJ to make under BL 63, and are not amenable to judicial review on traditional judicial review grounds.  Though the applicant has suggested that the failure to prosecute the CE for the common law offence of misconduct in public office is unconstitutional, there is absolutely no evidential basis for the criticism, and there is no advanced ground which can amount to a constitutional challenge.

E.  RESULT

22.To conclude, the applicant has no sufficient standing to make this application.  The application is made out of time, with no good reason for the grant of any extension of time.  In any event, the applicant has failed to identify any reasonably arguable public law grounds of review with any realistic prospect of success.

23.In those circumstances, the applicant’s application for leave to apply for judicial review is dismissed. 

24.I make no order as to costs.

F.  POSTSCRIPT

25.The applicant has brought two previous applications for leave to apply for judicial review – in HCAL 1428/2022 and HCAL 2285/2023.  Neither application had merit, and the applications were dismissed by Coleman J in Decisions [2023] HKCFI 1518 and [2024] HKCFI 46, dated 22 August 2023 and 3 January 2024 respectively.

26.It is unfortunate that – as this application identifies – the applicant has so far failed to take on board comments made in the aforesaid Decisions that, absent properly identified public law grounds of challenge, the Court of judicial review exercising its supervisory jurisdiction does not exist to deal with complaints about the alleged incompetence or failures in performance of various government agencies, departments or personnel.

27.Of course, there may be room for citizens to be concerned about the circumstances which permitted or led to the Fire Incident. However, that is precisely why the CE himself set up the Independent Committee (as referenced by the applicant, see above), with the following terms of reference:

(1)  Regarding the fire broken out at Wang Fuk Court in Tai Po, its rapid spread and the resulting casualties and property damage, to examine –

the causes and circumstances that led to the fire; the fire service installations and equipment in the buildings, and the supervision and responsibility for their effective operation; whether the construction safety requirements, standards, supervision and day-to-day maintenance regime for the building maintenance and renovation works were adequate; regarding the building maintenance and renovation works, whether the prevailing list of materials meeting safety standards is comprehensive, and whether the related verification and testing systems are effective; the roles and responsibilities of personnel with supervisory roles across all stages (including government officers, authorised professionals, contractors and others); and the liabilities arising from the aforementioned issues.

(2)  Regarding large-scale building maintenance and renovation works, to examine –

whether there were systemic problems such as undue connected interests, conflicts of roles, or improper collusion across all stages of the works; and whether bid-rigging corruption, or irregularities were involved in the tendering process of these works.

(3)  Regarding the two matters above, to examine whether regulation and penalties under relevant existing laws are adequate.

(4)  To make recommendations regarding matters in items (1)  to (3)  above.

Note:

•  If in the course of its review work, the Independent Committee is of the view that, in order to conduct inquiry into specific issues or aspects, it is necessary to be provided with the same statutory powers as those of a commission of inquiry established under the Commissions of Inquiry Ordinance (Cap. 86), the Independent Committee may make recommendation to the Chief Executive.  The Chief Executive-in-Council may, upon consideration, decide to enable the Independent Committee to become a statutory commission of inquiry for matters relevant to those issues or aspects pursuant to the Commissions of Inquiry Ordinance, to exercise those powers.

•  Issues concerning legal liabilities of those involved in the fire at Wang Fuk Court in Tai Po on November 26, 2025 are matters for law enforcement agencies’ investigation. Such matters fall outside the scope of the Committee.

28.The Independent Committee continues its work.

29.I will also not address the applicant’s various side points, including that he may report some matters to the United Nations.

The applicant, acting in person