Re Tsui Kwok Leung
Read the full judgment text of HCMP 2369/1989 on BabelCite. This High Court CFI judgment.
1. This is an application for leave to apply for judicial review. The applicant is a Police Constable who has been convicted of certain offences against discipline, and awarded punishment accordingly. He appeared before a Superintendent on April 25, 1989, and was then convicted of the offences against discipline here in question. The Superintendent's decision was confirmed by a Chief Superintendent on May 3, 1989.
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HCMP002369/1989 1989, No. Mp 2369 ----------------------- H E A D N O T E ----------------------- An application for certiorari must be made promptly as required by 0.53, r.4(1) even though a right of appeal against the decision complained of is available and is being pursued. In seeking leave to apply for judicial review, the applicant should inform the Court of the appeal so that it may consider exercising its power under 0.53, r.3(8) to adjourn the application for leave while the alternative remedy, namely, the appeal is being pursued. Attention of the legal profession drawn to the decision of the Court of Appeal in Re Wan Kam-wing and the Commissioner of Customs and Excise [1986] HKLR123. IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS No. 2369 OF 1989 -----------------
----------------- Coram: Bokhary J. in Chambers Date of hearing: September 9, 1989 Date of delivery of judgment: September 9, 1989 ----------------------- J U D G M E N T ----------------------- 1. This is an application for leave to apply for judicial review. The applicant is a Police Constable who has been convicted of certain offences against discipline, and awarded punishment accordingly. He appeared before a Superintendent on April 25, 1989, and was then convicted of the offences against discipline here in question. The Superintendent's decision was confirmed by a Chief Superintendent on May 3, 1989. 2. On June 28, 1989, an appeal to the Commissioner of Police which the applicant had brought was dismissed. As a result, the original conviction stood. 3. It was on August 16, 1989, that the applicant first sought legal advice. The advice which he received was to seek judicial review. The complaints against the convictions are on the basis that there are disclosed on the face of the record serious errors of law. Shortly stated, the errors complained of are these : In convicting, the Superintendent appears to have convicted the applicant because he, the applicant, failed to rebut the prosecution's case. Complaint is made of this approach on the basis that it reverses the onus of proof. In confirming the Superintendent's decision, the Chief Superintendent said that '... there was more than sufficient evidence, on the balance of probabilities, to confirm the findings of guilty...' This is complained of on the basis that it mis-states the standard of proof, replacing the criminal standard which was required with the civil standard which is too low. Certiorari will be sought. 4. I am fully satisfied that on the merits there is a basis for allowing this matter to proceed. 5. There arises, however, a difficulty which is in the nature of a procedural difficulty. It is well-known, of course, that applications for judicial review must be made prompty. Indeed, 0.53, r.4(1) expressly provides that :-
6. If the three-month period ran from the decision of the Commissioner of Police then the applicant is within that period. However, it would appear that the period ran from the decision of the Superintendent reached on April 25, 1989. The matter is governed by a decision of the Court of Appeal, Re Wan Kam-wing and the Commissioner of Customs and Excise [1986] HKLR 123. The background to that case is rather like the background to this one except that, as I shall be pointing out again later on, the delay in that case far exceeds the delay in this one. 7. The Court of Appeal held that the three-month period ran from the conclusion of the proceedings complained of whether or not some form of appeal procedure was provided and undertaken in the interim. Pressed with the difficulty which it was suggested that such a view of law would create for applicants, the Court of Appeal drew attention to the provisions of 0.53, r.3(8), which reads as follows:-
8. This provision does indeed remove the problem. However, another problem is this: Mr McCoy informs me that the decision of the Court of Appeal has apparently escaped the attention of the majority, or at least a substantial proportion, of the members of the legal profession. Apparently, a lot of people have in mind to the exclusion of other considerations, that, as is the fact and as is succinctly stated in the note 53/1 - 14/6 at page 794 of the 1988 Supreme Court Practice: 'Normally, even where there are grounds for judicial review, the court will not allow an applicant to proceed by way of judicial review until he has availed himself for any alternative remedy.' 9. The answer to the problem lies, of course, in the profession making itself familiar with the decision of the Court of Appeal (the relevance of which decision survives the changes which have been made to the Rules of the Supreme Court since it was reached). A prompt application must be made to the Court; but when applying the Court's attention should of course be drawn to the provisions of 0.53, r.3(8) and to the passage from the Supreme. Court practice to which I have made reference. That done, I am sure that the appropriate order will be made in each case. 10. So much for the future. As for the present, the applicant is out of time, but the delay in this case is far less than the delay in the case before the Court of Appeal to which I have made reference. There, the learned Judge to whom application was made for leave refused to extend time, and his refusal, which was an exercise of discretion and therefore not lightly to be disturbed, was upheld by the Court of Appeal. In the circumstances before me, I have no doubt that a proper exercise of discretion will result in giving leave by way of extending time; and this is what I do. I make the necessary extension of time and grant leave to apply for judicial review accordingly.
Representation: Mr G. McCoy (Helen A. Lo & Co.) for applicant (ex parte). |