Chan Tak Keung v. Commissioner of Police

HCAL000315/2000

HCAL 315/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO. 315 OF 2000

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Coram: Hon Chung J in Court

Dates of Hearing: 23 October 2000 and 4 June 2001

Date of Decision: 4 June 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 is a police sergeant serving with the Hong Kong Police Force. This application was brought on 20 April 2000 to challenge the decision of the putative respondent ("Commissioner of Police") of 21 October 1999 whereby the Commissioner of Police did not endorse the applicant's promotion to the rank of inspector. The Commissioner of Police further informed the applicant that such non-endorsement would apply to his future application for promotion to the inspectorate or to station sergeant.

2.In an "Amended Notice of Application for Leave to Amend for Judicial Review" dated 30 May 2001, the applicant also challenges the Commissioner of Police's decision dated 26 March 2001 that the decision of 21 October 1999 is to stand. The amendment was made on the basis (among other things) that the former Commissioner of Police has retired and been replaced by the present Commissioner of Police.

3.Two matters need to be borne in mind in an application like this:

(1) an application for leave to apply for judicial review should be "a short procedure ...... it should not involve lengthy applications ...... It is indeed, undesirable that the merits are considered in depth until the case is fully prepared ...... It is for this reason that ...... [it] should be more of a weeding out process, stopping those applications doomed to failure": Yu Pik Ying and another v. Director of Immigration CACV 603/2000, per Rogers VP, at pp.15-16 of the transcript of judgment;

(2) in such an application "...... even the expression of preliminary view can have undesirable effects": Yu Pik Ying, per Rogers VP, at p.16 of the transcript of judgment.

4.The issue raised at the hearing of the leave application is in essence whether the matter complained of falls within the private law or public law domain. The applicant now argues that a police officer is a person occupying a public office and is not an employee of Government.

5.Counsel for the Commissioner of Police indicates that this argument was known to him and his client only shortly before today's hearing. The Commissioner of Police considers that this point may have a much wider implication than this application. For that reason, the Commissioner of Police has decided not to oppose the application for leave any further (on a "without admission" basis).

6.Having considered the decisions referred to by the applicant and the materials before me, I am satisfied that leave to apply for judicial review ought to be given. I shall hear the parties as to whether the aforesaid point should be dealt with at the hearing of the judicial review application or whether it should be dealt with by way of the trial of a preliminary issue.

[No order was made in this regard after the parties were heard]

Representation:

Mr Paul Harris, instructed by Messrs Eli K K Tsui & Co., for the Applicant

Mr Nicholas J Cooney, instructed by Department of Justice, for the Respondent