Chan Tak Keung v. Commissioner of Police

HCAL000315B/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 Chambers

Date of Hearing: 15 October 2001

Date of Decision: 15 October 2001

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D E C I S I O N

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1.The background leading to, and the nature of, this application for judicial review has been set out in the written Decision dated 4 June 2001. In essence, the applicant contends that the court should review the respective decisions of the present and former Commissioner of Police not to endorse the applicant's promotion to the rank of inspector and that such non-endorsement should apply to any future application for promotion.

2.The Commissioner of Police took out an application on 25 September 2001 asking inter alia for an order that the hearing fixed for 17 and 18 December 2001 be for the determination of a preliminary issue only, namely, whether the said decisions of the Commissioner of Police fall within the private law or public law domain.

3.The applicant opposes this application on the grounds that:

(a) RHC Ord. 53 does not confer a power on the court to sever and determine one or more issues of an application for judicial review;

(b) the above issue is accepted by both parties herein to be a matter of great and general public importance and a determination thereon is likely to lead to successive appeals resulting in substantial delay in the determination of the other issues in this application for judicial review (should such a determination turn out to be necessary);

(c) no compelling reason has been given for the making of the order sought.

4.I approach the present application assuming that there is power to order one or more issues in an application for judicial review to be severed and determined separately from the others. However, I agree with the applicant's argument that no sufficient reason has been shown as to why such an order should be made herein. Taking into account points (b) and (c) above, my discretion should be exercised to refuse the order sought.

5.Accordingly, it is inappropriate to make an order in terms of paragraph 1 of the said summons.

6.Having so concluded, it is undisputed that the 2-day hearing in December 2001 was fixed with only the preliminary issue in mind. In view of the potential importance of that issue, a 2-day hearing is unlikely to be adequate for completing the submissions on that point together with submissions which may be made regarding other points in this application for judicial review. I therefore consider it appropriate to vacate the 2-day hearing scheduled in December 2001 and direct that a 4-day hearing (for arguments to be raised on all issues raised by the Amended Form 86A) to be fixed (in consultation with counsels' daries).

Representation:

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

Mr Anderson Chow, instructed by the Department of Justice, for the Respondent