Fung Yiu Bun v. Commissioner of Police

HCAL002350/2001

HCAL 2350 /2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2350 OF 2001

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Coram: Hon Chung J in Court

Date of Hearing: 23 October 2001

Date of Decision: 23 October 2001

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D E C I S I O N

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1.This is the application for leave to apply for judicial review. The Applicant was a probationary inspector of police. He joined the Hong Kong Police Force on 5 January 1998. On 10 May 2001, the putative Respondent ("the Commissioner of Police") informed the Applicant that he was discharged from the police force. The Applicant complains herein that the said decision to discharge him should be judicially reviewed on the grounds that the said decision was:

(1) procedurally unfair because he had not been given the opportunity to reply to allegations against him (and which were placed before the Commissioner of Police);

(2) irrational because it was based on a finding that the Applicant was of "doubtful integrity" when there was no material based on which a rational decision maker could have so concluded.

2.The Commissioner of Police opposes this application at today's hearing on the ground of undue delay on the Applicant's part to commence this application (made on 12 September 2001, about one month outside the time period prescribed under RHC O.53 r.4(1)). The Commissioner of Police contends that it is incumbent on the Applicant to show "good reasons" as to why he failed to make this application promptly and in any event within three months from the date when the grounds for doing so first arose: see, for example, Re An Application for Judicial Review by Right Centre Co Ltd [1990] 1 HKLR 250, 259D-F and 260B-261D (a decision relied on by the Commissioner of Police). This application should be refused if the Applicant fails to show this point.

3.It was observed by the court in the Right Centre Co Ltd case that for the purpose of considering whether an Applicant has shown good reason for any undue delay, the court may consider the merits of the case. This is because if his case is hopeless, there would be no question of showing good reason for extending the period. On the other hand, if his case is very strong, it would not be difficult to persuade the court that the interests of good administration (which is essentially the reason for prescribing the time limit) should give way to the interests of justice.

4.The Applicant's first ground of complaint can arguably be supported by cases including the following:

(1) Kanda v Government of Malaya [1962] AC 322;

(2) Chan Tak Shing v Chief Executive of the HKSAR [1999] 2 HKLRD 395;

(3) Harjit Kaur v Director of Immigration, HCAL 47/99 14/4/00;

(4) Leung Fuk Wah Oil v The Commissioner of Police, HCAL 371/01, 10/8/01.

5.Counsel for the Applicant observes that the Commissioner of Police may also argue (if leave to apply for judicial review is granted herein) that the appointment or dismissal of police officers are matters of private law and not public law. I agree with the Applicant's argument that this is a substantial issue which warrants further consideration by the court. Without the need to go into details, the same can be said about the Applicant's first and second grounds of complaint herein.

6.As regards the 2 reasons given for the delay, namely, the time needed for obtaining further documents from the Commissioner of Police and for instructing new counsel, I do not consider them to be entirely satisfactory. However, as the counsel for the Commissioner of Police fairly accepts, the question of whether "good reason" has been shown has to be looked at in the round. The relevant factors would include:

(a) the nature of the decision under challenge, e.g. whether it affects only the Applicant or whether it has wider ramifications;

(b) the length of and reason(s) for the undue delay;

(c) the merits of the grounds in support of the application for leave. In relation to this point, it has to be borne in mind that the hurdle which an Applicant has to overcome is only that related to an application for leave to apply for judicial review.

7.No argument has been advanced by the Commissioner of Police regarding the merits of the 2 grounds of complaint (set out above). The period of delay is relatively short.

8.By reason of the matters aforesaid, I find that (1) the time for this application should be extended to 12 September 2001; (2) leave to apply for judicial review should be granted.

Representation:

Mr Paul Harris, instructed by Messrs Kitty So & Tong, for the Applicant

Mr Anderson Chow, instructed by the Secretary for Justice, for the Respondent