Li Hao Tian v. The Secretary for The Civil Service

CACV 480/2024, [2026] HKCA 1413

On Appeal From [2026] HKCA 16

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 480 OF 2024

(ON APPEAL FROM HCAL NO 585 OF 2024)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

A. Introduction

1.By a Notice of Motion, the applicant seeks leave to appeal to the Court of Final Appeal (“the CFA”) against the judgment of this Court dated 8 January 2026 ([2026] HKCA 16) (“the CA Judgment”).

2.The basic facts of this case and this Court’s reasons for dismissing the appeal against the judgment of Coleman J (“the Judge”) dated 4 November 2024 ([2024] HKCFI 2580), dismissing the applicant’s application for leave to apply for judicial review, are fully set out in the CA Judgment and will not be repeated here.[1]

3.Pursuant to the directions of the Registrar of Civil Appeals made on 10 February 2026 (“the Registrar’s Directions”), the Notice of Motion will be treated as the applicant’s written submissions in support of his present application.[2] Mr Tommy Cheung (together with Ms Celina Lam) representing the SCS lodged written submissions on 2 March 2026.  The applicant lodged his reply submissions on 4 March 2026.

4.After reviewing the papers before us, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

B.  The Application for Leave to Appeal to the CFA

5.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”), this court may grant leave to appeal to the CFA if the question involved in the intended appeal is one of great general or public importance, or otherwise, that ought to be submitted to the CFA for decision.

6.At paragraph 8 of the Notice of Motion, the applicant raised the following nine questions which are said to be of great general or public importance (“GPI”) which ought to be determined by the CFA (respectively referred below as “(i)” to “(ix)”):

“(i) Given the Applicant was a litigant in person (unreasonably rejected for legal aid and has genuine financial situation that could not afford any legal assistance), even though any Judge should have the authority to consider any weigh given to any point raised, should it be considered legally just to refrain the Applicant from listing out the points already submitted in all documents filed, such as the Skeleton Submissions, during the hearing, which is only by then open to public, and then made a summary or conclusion without proper inclusion of those points, hiding those points from the public?

(ii) Given the situation involving misfeasance in the public office, should the choice of not to include any judgement on whether or not misfeasance in the public office is reasonably established (as in the decision of the Court of First Instance), or to demand for ‘very cogent evidence’ but at the same time disregarding all the evidence provided by the Applicant, and without carrying out any analysis on those evidence and provide judgemental basis on why those were not considered ‘very cogent evidence’ (as in the Appeal Decision), be legally justified? Further, should the Court lose the authority to lessen the harm of misfeasance in the public office, allowing room for that to grow or to abuse the administrative discretions originally authorised for good, should that not be a valid consideration by the Court to at least quash the decision and remit the case back to the Putative Respondent for a more proper consideration?

(iii) In a ‘complex’ situation, as recognised in the Appeal Decision taking the advantage of a rolled-up hearing as determined by the Court of First Instance such that all evidence involved for a substantive hearing was already considered, should it be just to dismiss the application for leave for applying judicial review instead of granting the leave and consider such ‘complex’ case in a substantive hearing? In such case what should be the appropriate line to draw between the decision on leave and the decision as in a substantive hearing?

(iv) Given the advantage already been taken from a rolled-up hearing with all evidence filed and considered, even if the Applicant's application (for either leave or the substantive judicial review) is dismissed, should all cost be payable by the Applicant as the Applicant should have considered granted leave? Further, should the cost still follow the event, would it be just to exercise discretion to order a rolled-up hearing when the Court was in clear view that the Applicant was applying for legal aid?

(v) Given the advantage already been taken from a rolled-up hearing with all evidence filed and considered, should the Court of Appeal refrain their judgement from extensively involving all evidence, if the Court of Appeal was in the view that if they rule the Applicant in favour they would remit the case back to the Court of First Instance (as claimed by the JJA during the hearing), but only to reexamine whether there was any reasonably arguable point to grant leave?

(vi) Would it still be considered appropriate for any Judge to continue involving in a case if the Judge expressed opinions that any educated person would consider biased?

(vii) When cost is considered, even if the norm is cost follows the event, in the genuinely special case of the Applicant in genuine financial difficulties (which was considered by the JJA not a reason to depart from the normal practice), and where the Applicant had been trying to apply for legal aid which was unreasonably rejected and appeal dismissed, which the JJA had clear picture about as the JJA was also handing the appeal against the legal aid appeal, and subsequently the High Court also ruled (by Master Doris TO in an appeal against a legal aid application for claims for relevant beneficial interest) that the Applicant had no beneficial interest in the concerned property that was the core reason for legal aid rejection through means test, should that not constitute any reason to exercise any discretion to reduce the legal fee or to order no cost? (This being completely relevant to this course of action appealing against the cost order, as well as the consideration of a just arrangement)

(viii) When both the legal aid appeal was filed before this concerned case (which the notice of appeal was filed before the notice of appeal for this concerned case (CACV 480/2024)), when the JJA is handling both cases, should it be considered just to order a hearing of the latter before the former, not just slightly but almost half year apart (and as at the date of this Motion, the appeal result for the legal aid case was still pending while the timeframe for applying for leave to appeal this concerned case to the Court of Final Appeal is coming to a due), rather than considering the just course to first deal with the legal aid appeal? Should the answer to this question to be negative, what should the just consideration be when it came to the cost order when the Applicant could not obtain a proper legal aid certificate, taking into consideration whether or not that would cause a deterring effect to any other future applicants in a similar situation?

(ix) Should it be considered just for the Judges involved in the matter to be appeal to decide on whether or not extension of time to apply for leave should be granted, especially when the Applicant was contesting the neutrality of the relevant Judges?” (sic)

7.In his “skeleton submissions” (see footnote 2 above), the applicant sought to raise a further question of GPI (“(x)”):[3]

“(x) Given the directions from the judiciary is to first approach the Court of Appeal for leave to appeal to the Court of Final Appeal, should it be considered appropriate for the Judges involved in the concerned decision being appealed against to decision on the CFA Leave Application, especially when the Applicant filed grounds associated with the bias of the relevant Judges?”

8.Although the applicant did not raise this question in the Notice of Motion, as the SCS took a neutral stance and counsel for SCS has also made submissions on this, solely for the sake of completeness, we will also include this in our discissions below.

9.In addition, the applicant seeks to rely on the “or otherwise” limb under section 22(1)(b) of the HKCFAO, in support of his application for leave to appeal.

C.  Discussion

10.The complaints raised under the ten lengthy and convoluted purported GPI questions as advanced by the applicant under the Notice of Motion and his skeleton submissions are in substance that:

(1)  This Court was wrong to have upheld the Judge’s decision and dismissed the appeal as it was both substantively wrong and procedurally unfair and irregular for this court:

(a)  to have failed to thoroughly and properly consider the very detailed and overwhelming evidence submitted by him in support of his case;

(b)  to have decided the applicant’s case only on a leave basis without considering it on its substantive merits in light of the cogent and substantial evidence that has already been filed by the applicant;

(c)  not to have allowed him to properly present his case thoroughly and in detail at the hearing despite the many issues involved, which are all supported by cogent and substantive evidence;

(d)  to have refused and avoided to decide on question of misfeasance in public office, given the importance of his case against the SGS for misconduct, which is well supported by overwhelming evidence;

(e)  to have heard this appeal before hearing his other appeal (CACV 367/2024) against the Judge’s refusal of his application to apply for judicial review against the refusal of legal aid (under HCAL 892/2024), as this had unjustly deprived him of the chance of having the support of legal representation;

(f)  to have awarded costs against the applicant as his application relates to important issues of great public interest; and

(g)  to be biased in the way the judges had dealt with the case.

(2)  The judges of this court should therefore also recuse themselves from dealing with the Notice of Motion as they are biased.

11.In our view, the applicant’s application for leave to appeal to the CFA is plainly devoid of merit for the following reasons.

12.First, taking the applicant’s contentions at their highest, the questions advanced are all fact-specific to the circumstances of his individual case.  They do not relate to any questions of GPI.  On this basis alone, his application must be dismissed.

13.Second, most of the contentions in support of the questions amount to no more than (a) the applicant’s regurgitations of his arguments (both written and oral) raised before this court by reference to his repeated contentions that all the materials he had relied on amounted to “cogent” evidence in support of this case, and (b) his disagreement with the reasons this court (and the Judge) have given in rejecting those arguments[4]. There is no or no proper engagement of the reasons given in the CA Judgment in rejecting the applicant’s case.  These contentions do not amount to any meritorious or valid grounds of appeal against the CA Judgment.

14.Third and specifically as to the other contentions relating to alleged procedural unfairness:

(1)  There is no substance in the applicant’s complaint that this court wrongly failed to give reasons in the CA Judgment as to whether his claim based on misfeasance in the public office was reasonably arguable so that leave to apply for judicial review should be granted.  As explained in [43] ‑ [44] of the CA Judgment, given that the applicant had failed to demonstrate any public law errors in the challenged decision showing that the SCS (or other related officials) in the decision-making process had committed any such error or wrong, there was nothing to support his claim in the intended judicial review for damages arising from the alleged misfeasance in public office.  This issue is thus irrelevant and plainly academic.  None of the applicant’s present contentions can demonstrate arguably that this court was wrong in its reasons.

(2)  As to his complaint that this court ought to have first dealt with CACV 367/2024 before dealing with this appeal, there is also nothing in it.  This court had properly considered the merits of this appeal and the applicant had already made lengthy and substantive arguments in support of it[5].  There is nothing unfair or prejudicial to him as alleged for this court to consider this appeal first.

(3)  Although the Judge had directed a rolled-up hearing, it is entirely correct in principle for the Judge to have disposed of it by refusing to grant leave to the applicant as he found (rightly so as this court has held in the CA Judgment) that the applicant’s intended grounds of appeal were not reasonably arguable with a realistic prospect of success after considering all the evidence filed by both parties.  The leave application is intended to be a filtering process to weed out unarguable cases.  In the premises, it is also correct in principle for this court to have disposed of the appeal after upholding the Judge’s ruling that leave to apply for judicial review should be refused.

(4)  As to the applicant’s submissions that we are biased, it is well‑established that there are high hurdles that the applicant must overcome in order to establish actual and/or apparent bias: see Deacons v White & Case Ltd Liability Partnership & Others (2003) 6 HKCFAR 322 at pp. 329B ‑ 333E and Chau Siu Woon v Cheung Shek Kong [2010] 3 HKLRD 49 at [8] ‑ [13].  It is also trite that the previous involvement of a judge in cases involving the party and making adverse judicial decisions against him is by itself not a sufficient ground for seeking recusal: 莊裕安 v 終審法院 [2020] 5 HKLRD 780 at [81] and the cases cited in it.  The various allegations of bias as asserted by the applicant in his submissions are at the highest all his subjective surmises and bare speculations.  The mere fact the court in the course of the hearing had made clarifications with the applicant or observations about his arguments and case, without more, plainly does not constitute clear evidence of bias.  There is absolutely no basis in his contentions that this court was biased in hearing the appeal, and we should also recuse ourselves from dealing with this application.

15.For all the above reasons, the applicant has failed to identify any proper question of GPI, and in any event the intended appeal is without any merit.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

C.  Disposition

16.The Notice of Motion is accordingly dismissed.

17.We see no reason why costs should not follow the event.  We therefore order on a nisi basis that the applicant do pay the costs of the SCS, to be assessed summarily.

18.In this respect, we have considered the Statement of Costs filed by the SCS’s legal representatives on 2 March 2026 seeking a sum of HK$33,888.  We consider that the costs sought by the SCS’s legal representatives are just and reasonable.  We therefore order also on a nisi basis that the costs of the SCS be summarily assessed at HK$33,888.

19.Unless any of the parties applies to vary them by summons, the costs order and the assessment nisi shall become absolute 14 days from today.

Written Submissions by the Applicant, acting in person

Written Submissions by Mr Tommy Cheung, instructed by Department of Justice, and Ms Celina Lam, Government Counsel of Department of Justice, for the Putative Respondent