Lay Man Yee Mary v. Alice Tai, Ombudsman (Office of the Ombudsman, Hong Kong)

[English Translation – 英譯本]

HCAL 107/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 107 OF 2006

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BETWEEN

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Before: Hon Chu J in Court

Date of Hearing: 1 February 2007

Date of Judgment: 27 February 2007

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J U D G M E N T

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1.In relation to the Ombudsman’s decision on her complaint against the Official Receiver, the applicant seeks judicial review and relief. 

Factual background

2.On 8 October 2002, the court made a bankruptcy order upon the applicant’s own petition in HCB 13304/2002.

3.On 1 November 2002, it was resolved at a meeting of creditors that Mr Fred Li, a solicitor, be appointed as the trustee of the applicant’s assets.

4.By virtue of section 30A of the Bankruptcy Ordinance, the applicant can be discharged from bankruptcy 4 years from the date of the bankruptcy order.  However, on 6 September 2006 the trustee applied to the court for an extension of the applicant’s bankruptcy.  The application is still pending and the applicant is still a bankrupt at the moment.

5.On 27 December 2003, the applicant first wrote to the Official Receiver complaining that the trustee was unprofessional and unfair.  The letter set out a total of 12 complaints.  The Official Receiver wrote back on 3 February 2004.  This was followed by further correspondence between the applicant and the Official Receiver.

6.On 2 July 2005, the applicant wrote to the Official Receiver again, providing relevant documents and a compact disc which contained an audio recording of an interview in connection with her complaints against the trustee.  The Official Receiver wrote back on 2 November the same year, saying that he did not intend to invoke section 84 of the Bankruptcy Ordinance to take further action on the various allegations that the applicant had made against the trustee.  On 7 November, the applicant wrote to the Officer Receiver expressing her dissatisfaction with his decision in the letter of 2 November.

7.As a matter of fact, since she went bankrupt, the applicant has not only written to the Official Receiver’s Office to complain about the trustee, but has also complained to the trustee direct, with copies of the complaint letters sent to the Official Receiver.  Two of these complaint letters to the trustee are dated 26 October 2005 and 29 March 2006 and contain, respectively, 75 and 102 allegations of misconduct on the part of the trustee.  The applicant has also complained to the Law Society about the trustee, but her complaint was not entertained on the ground that the matter was not related to legal practice.

8.The applicant wrote to the Ombudsman on 8 November 2005, complaining that the Official Receiver had not properly dealt with her complaints.  The applicant also requested the Ombudsman to confirm that complaints concerning bankruptcy cases were within the scope of her duties.  The Ombudsman replied on 10 November acknowledging receipt of the applicant’s complaint.

9.On 14 November, the applicant supplied further information to the Ombudsman regarding her complaint, including her correspondence with the Official Receiver and documentary information/a compact disc of audio recording.  The applicant further explained her complaint against the Official Receiver in the letter.

10.On 30 November 2005, the Ombudsman wrote to the applicant, stating that from an administrative point of the view, there was nothing improper on the part of the Official Receiver in his follow-up of the applicant’s complaints against the trustee.  The Ombudsman clearly stated in the letter that there were no grounds for following up the applicant’s complaint against the Official Receiver. 

11.The applicant wrote to the Ombudsman on 2 December expressing dissatisfaction with the Ombudsman’s refusal to follow up her complaints.  The applicant also wrote to the Chief Executive on 3 December to complain about the Ombudsman’s decision.  The Ombudsman wrote to the applicant on 12 December, informing her that her complaint was being examined afresh.  The applicant attended an interview with an investigation officer of the Office of the Ombudsman on 22 December and also furnished additional documentary information.

12.The Ombudsman wrote to the applicant on 12 January 2006, explaining to her that the Official Receiver’s decision as to whether the trustee had acted in breach of section 84 of the Bankruptcy Ordinance was a professional decision as opposed to an administrative matter, and hence the Ombudsman was unable to follow up the applicant’s complaints in that regard.  Furthermore, as the materials provided by the applicant revealed no maladministration on the part of the Official Receiver, a decision was made in November 2005 not to follow up the applicant’s complaint.  The Ombudsman also stated in the letter that as the applicant had written to the Office of the Ombudsman again, visited the Office, and insisted that the Office intervene and conduct an investigation, a decision was made to conduct a preliminary inquiry with the Official Receiver’s Office to find out if it had adopted reasonable procedures and acted in a timely manner in following up the applicant’s complaints.

13.On 2 June 2006, the Ombudsman responded to the applicant in respect of her complaint against the Official Receiver’s Office.  In the letter, the Ombudsman said that having examined all the materials, she formed the view that the Official Receiver’s Office had followed up the applicant’s complaints against her trustee appropriately within the scope of its functions, with no delay or maladministration and that there was no evidence to buttress the allegation that the Official Receiver’s Office was biased towards the trustee.  The Ombudsman also notified the applicant of the decision to close the case.

14.On 29 June 2006, the applicant wrote to a number of individuals/organizations including the Chief Executive, Chairman of the Legislative Council and the Ombudsman, stating that over the past two years her complaints against the trustee and the Official Receiver’s Office were not entertained.  She also criticized the Ombudsman’s decision in the letter.

15.The Ombudsman wrote back to the applicant on 15 August 2006, disagreeing with her criticism.  The final paragraph of the Ombudsman’s letter reads:

We have clearly expressed our position on this matter on 30 November last year, 12 January and 2 June this year and have nothing further to add.  If you write to us on this matter again in the future, we shall make no reply other than acknowledging receipt of your letters.

Application for judicial review

16.On 29 September 2006, the applicant sought leave to apply for judicial review against the Ombudsman’s decision.  The court granted leave on 16 October 2006.  On 26 October 2006, the applicant filed a Notice of Originating Motion.

17.The applicant sought the following relief in the Notice of Application for Leave (Form 86A):

(1)   An order of mandamus requiring the Ombudsman to accept the applicant’s complaints and conduct a serious, fair and professional inquiry into the Official Receiver.

(2)   An order prohibiting the Ombudsman from using impolite remarks and wording in documents and annual reports; and a declaration that the Ombudsman shall not act unreasonably towards the applicant.

(3)   Even if damages are not awarded so that the applicant can fully repay outstanding tax in the sum of $70,411, a decision may still be made to enable the applicant to live a new life and to allow her family to start afresh financially, regardless of whether she can be discharged from bankruptcy (HCB 13304/2002).

18.In the Notice of Originating Motion, the applicant added 4 items of relief.  As I have pointed out in the hearing, the applicant has not obtained leave to amend her Form 86A, and the leave to apply for judicial review given by the court does not cover those additional items of relief and related matters.  Furthermore, some of the related matters arose after the Ombudsman issued the letters dated 2 June and 15 August of the year 2006 and after the applicant made the present application.  Hence, only the 3 items of relief and related matters as set out in the Form 86A will be dealt with in the present application for judicial review.

The Ombudsman Ordinance (Cap. 397)      

19.The Ombudsman Ordinance governs the establishment, functions and powers of the Ombudsman.

20.Section 7(1) of the Ordinance provides as follows:

(1) The Ombudsman may investigate any action taken by or on behalf of ―

(a) an organization set out in Part I of Schedule 1 in the exercise of its administrative functions; or
(b) an organization set out in Part II of Schedule 1 in the exercise of its administrative functions in relation to the Code on Access to Information published by the Government,

in any case where ―

(i) a complaint is made by a person who claims to have sustained injustice in consequence of maladministration in connection with that action; or
(ii) notwithstanding that no complaint has been made to him, he is of the opinion that any person may have sustained injustice in consequence of maladministration in connection with that action.

21.The Official Receiver’s Office is an organization set out in Part I of Schedule 1 to the Ordinance.

22.As to the scope of the Ombudsman’s powers of investigation, section 8 of the Ordinance provides that the Ombudsman shall not undertake any investigation that relates to any action set out in Schedule 2.  According to paragraph 2 of Schedule 2, the Ombudsman shall not undertake any investigation into actions relating to the following:

The commencement or conduct of any proceedings, whether civil or criminal, before a court of law or tribunal in Hong Kong, including any decision whether or not to prosecute any person for an offence.

23.Section 10 of the Ordinance sets out the restrictions on investigation of complaints by the Ombudsman.  Section 10(1)(e) provides as follows:

(1)     Notwithstanding the generality of the powers conferred on the Ombudsman by this Ordinance, the Ombudsman shall not undertake or continue an investigation into a complaint ―    

…

(e)    if the complaint relates to any action in respect of which the complainant has or had ―

(i)     under any Ordinance, a right of appeal or objection, or a right to apply for a review, on the merits of the case, to the Chief Executive, the Chief Executive in Council, any tribunal constituted by or under any Ordinance, or any board or other authority so constituted; or (Amended 25 of 1998 s. 2)

(ii)    a remedy by way of proceedings in a court, other than by way of judicial review, or in any tribunal constituted by or under any Ordinance,

unless the Ombudsman is satisfied that in the particular circumstances it is not reasonable to expect the complainant to resort or to have resorted to that right or remedy.

24.And section 10(2) provides as follows:

(2)   The Ombudsman may in his discretion decide not to undertake or continue an investigation into a complaint, if he is of the opinion, having regard to all the circumstances of the case, that ―

(a) the complaint, or a complaint of a substantially similar nature, has previously been the subject of an investigation as a result of which the Ombudsman was of the opinion that there had been no maladministration;
(b) the subject matter of the complaint is trivial;
(c) the complaint is frivolous or vexatious or is not made in good faith; or
(d) any investigation or further investigation is for any other reason unnecessary.

If the Ombudsman decides not to undertake or continue an investigation into a complaint he shall inform the complainant of that decision and of his reasons.

25.As to the determination of the Ombudsman’s authority, section 9 provides that:

In determining whether to undertake, continue or discontinue an investigation, the Ombudsman shall, subject to the provisions of this Ordinance, act in accordance with his own discretion; and any question whether a complaint is duly made under this Ordinance shall be determined by the Ombudsman.

26.Insofar as they are relevant to the present application, of the provisions governing the Ombudsman’s functions and powers on investigation can be summarized as follows:

(1)  The Ombudsman may only investigate actions taken by the organizations concerned in the exercise of their administrative functions, see Ong Kin Kee Tong v. The Commissioner for Administrative Complaints (now known as the Ombudsman) [1997] HKLRD 1191.

(2)  The Ombudsman has no power to undertake any investigation into decisions or conduct to commence proceedings.

(3)  If the complainant can institute any proceedings other than judicial review in a court of law in respect of the subject matter of the complaint, the Ombudsman cannot undertake an investigation.

(4)  Section 7(1) only authorizes the Ombudsman to carry out investigations; it does not require the Ombudsman to investigate every complaint.  By virtue of The Ombudsman Ordinance, the Ombudsman has a discretion to determine whether a complaint has been properly made in accordance with the Ordinance, and to decide whether to undertake, continue or discontinue an investigation: see also Re Fletcher’s Application [1970] 2 All ER 527.

(5)  The Ombudsman enjoys extensive powers under section 9, including a discretion to decide whether or not to undertake an investigation and also to define the scope of such investigation: see R v. Parliamentary Commissioner for Administration, ex parte Dyer [1994] 1 WLR 621, 626E-G.

Grounds of application for judicial review

27.Based on a number of the applicant’s affidavits and the submissions she made in the hearing, the grounds that she puts forward for seeking judicial review can be summarized as follows:

(A) The Ombudsman took an inappropriate approach and acted in an inappropriate manner

(1)      The Ombudsman should not have refused to carry out an investigation for the reason that the matter was within the scope of professional judgment of the Official Receiver’s Office and not an administrative matter.  The Ombudsman should have determined whether the Official Receiver’s Office had acted inappropriately in areas of administration and management before making its professional judgment.

(2)      The Ombudsman closed the applicant’s case on 2 June 2006, at which time the Official Receiver’s Office had not yet responded to the complaints set out in her letter of 17 March 2006.  This was an unreasonable act on the part of the Ombudsman, which undermined the applicant’s complaints which were still being dealt with, and as a result of which the Official Receiver did not fully or thoroughly respond to the applicant’s complaints in his written reply to the applicant dated 22 June 2006.

(3)      In her letter of 30 November 2005, the Ombudsman flatly refused to carry out an investigation.  The Ombudsman had not carefully read the complaints before making this decision; rather, she had accepted the materials and submissions put forward by the Official Receiver’s Office in their entirety.

(4)      The Ombudsman’s subsequent follow-up action was unfair.  In her letter of 2 June 2006, the Ombudsman did not state the result of the investigation, which means that she had not carried out any investigation and was merely following up the complaint.  Nor did the Ombudsman clearly state in her letter the result of the follow-up work.  In the applicant’s view, the Ombudsman had simply accepted the materials provided by the Official Receiver’s Office, spoken for the Official Receiver and wholly rejected her complaints.

(B) The Ombudsman acted discourteously

(5)  In the letter dated 15 August 2006, the Ombudsman stated that “If you write to us on this matter again in the future, we shall make no reply other than acknowledging receipt of your letters”.  This is a statement very discourteous and discriminatory.  Furthermore, in the said letter, the reply “cannot simply agree with” to the applicant’s criticism was derogatory.

(6)  The heading of “opinionated complainant” in the Ombudsman’s Annual Report 2006 (18^th Annual Report, Chapter 4, page 27) is defamatory of those whose complaints are being rejected.

(7)  On the basis of (5) and (6) above, the Ombudsman had not considered those who were affected by her actions.  That was an unreasonable behaviour which constituted maladministration.

(C) Regardless of whether the applicant is allowed to be discharged from bankruptcy, her own finances as well as her family’s finances should start afresh.

(8)  The applicant owed no tax before her bankruptcy, but since she became bankrupt, her arrears of tax have accrued to $70,411 (including penalty in the sum of $15,422).  She alleges that this was caused by the trustee’s misconduct.  Furthermore, as she has already been sanctioned with bankruptcy, she should not shoulder this huge tax debt.  She requests the court to make a decision on this issue in the present application.

28.The applicant also mentioned other matters in her affidavits dated 26 October 2006 and 3 January 2007, including complaints concerning her annual accounts on income and expenditure and the trustee’s accounts; as well as the number of complaints and thorough investigations carried out, and schemes under which the Ombudsman give awards to government and public organizations, etc. as mentioned in the Ombudsman’s Annual Reports.  The applicant sought further relief in the Notice of Originating Motion based on these matters.  As I have indicated above, these matters and items of relief, which I will not set out here, are not within the ambit of the leave for judicial review granted by the court.

The applicant’s complaints against the trustee

29.The present application obviously stems from the applicant’s complaints against the trustee.  Based on the applicant’s affidavits and the exhibits thereto, the applicant’s complaints against the trustee can be summarized as follows:

(1)   The trustee’s assessment of the applicant’s expenditure was unreasonable and unfair.  The expenses included rates, the applicant’s children’s education, tuition and related expenses, and the applicant’s financial support for her mother and ailing elder brother.

(2)   After the applicant became bankrupt, her income was unable to cover her expenses and she had experienced hardships.  The trustee did not address or deal with these matters, which included the applicant’s moving expenses, parking fees incurred as a result of the trustee’s mishandling, the applicant earning less as a result of her salary being deducted and reduced, and her incurring tax debt because of the imbalance between her income and expenditure.

(3)   The trustee rejected the applicant’s request for suspension of repayments for 4 instalments and for compensation in the sum of $9,788.  The trustee also failed to mention the applicant’s request for compensation during the creditors’ meeting to allow the creditors to make a decision.

(4)   The trustee had no regard for the applicant’s privacy, as a result of which her neighbours came to know that she had gone bankrupt.

(5)   The trustee was professionally negligent.  He asked the applicant to handle by herself the procedures for transferring the ownership of her car while she was in no authority to do so.  She was criticized and publicly insulted by the staff of the Transport Department as a result.

(6)   The trustee and his staff used impolite or inappropriate words when interviewing the applicant and repeatedly threatened to extend the bankruptcy period.

(7)   The trustee failed to comply with the Bankruptcy Ordinance as he had failed to complete the trustee’s income and expenditure accounts at the right time and to submit the same to the Official Receiver’s Office and file it with the court. 

30.The above complaints lodged by the applicant against the trustee were background information provided merely for the understanding of the present application.  In hearing applications for judicial review, the court is merely playing a supervisory role; it is exercising neither civil jurisdiction nor bankruptcy jurisdiction.  Furthermore, as the present application concerns a decision made by the Ombudsman, the court need not and should not determine the merits or otherwise of the applicant’s various complaints against the trustee.  For this reason, I will not give details of the applicant’s complaints against the trustee, nor will I set out the documents, letters and other information in connection therewith.      

The Ombudsman’s decision of 30 November 2005

31.The applicant’s first and third grounds for judicial review relate to the Ombudsman’s decision in her letter of 30 November 2005.  Although the Ombudsman stated in the letter that she would not undertake any investigation into the applicant’s complaints, subsequently she considered the applicant’s complaints afresh and, on 12 January 2006, decided to conduct a preliminary inquiry with the Official Receiver’s Office so as to understand whether reasonable procedures had been followed in dealing with the applicant’s complaints and whether the follow-up work was timely.  Section 11A of The Ombudsman Ordinance provides that, for the purposes of determining whether to undertake an investigation, the Ombudsman has the power to conduct such preliminary inquiries as she considers appropriate.

32.In other words, the Ombudsman’s decision of 30 November 2005 has been replaced by the decision of 12 January 2006.  Furthermore, the Ombudsman did undertake a preliminary inquiry which included obtaining information and explanation from the Official Receiver’s Office.  For this reason, the court will not proceed with judicial review on the decision of 30 November 2005, which has already been superseded and nullified, or award any relief in respect of that decision.

The Ombudsman’s decision of 2 June 2006

33.Part of the applicant’s first ground as well as the second and fourth grounds for application concern the Ombudsman’s decision as stated in her letter of 2 June 2006.  The Ombudsman said, having considered all the materials, she found that there was no maladministration on the part of the Official Receiver’s Office and the follow-up work on the applicant’s complaints was not inappropriate.  The Ombudsman therefore decided to close the applicant’s case.

34.In considering the applicant’s first ground for application, I find that we should start with relationship between the Official Receiver and the trustee.  Despite the fact that the trustee was appointed by a resolution at the creditors’ meeting, decisions that he made on matters concerning the applicant’s bankruptcy were primarily monitored by the debtors’ meeting.  Nevertheless, the Official Receiver also has the power and obligation to monitor the trustee’s acts and decisions under the Bankruptcy Ordinance.  In this respect, section 84 of the Bankruptcy Ordinance provides that:

(1)      By virtue of section 84(1), the Official Receiver has the power to make a complaint to the court in respect of the trustee’s conduct and the way he performs his duties.

(2)      By virtue of section 84(2), the Official Receiver can also apply to the court to require the trustee to answer his inquiries.

35.Therefore, when the Official Receiver received the applicant’s complaints against the trustee, he had to decide whether to exercise his power under section 84.  I agree with the Ombudsman that whether or not to make an application to the court under section 84 is a professional decision as it involves factual and legal considerations.  As it was not an act or decision relating to administrative functions, the Ombudsman had no power to undertake an investigation under section 7(1) of The Ombudsman Ordinance.  Furthermore, according to section 8 and paragraph 2 of Schedule 2 to the Ordinance, the Ombudsman cannot undertake an investigation into a decision made by the Official Receiver about whether to make an application to the court under section 84 of the Bankruptcy Ordinance.             

36.As to the applicant’s complaints against the Official Receiver, the stand of the Ombudsman was that, from an administrative perspective, she could only examine whether the Official Receiver had followed reasonable procedures when he handled the complaints and whether he had done it in a timely manner.  Based on the above analysis, the Ombudsman’s demarcation on her functions and powers is correct.

37.As to the applicant’s second and fourth grounds for application, the Ombudsman explained in her letter of 12 January 2006 that, as the applicant insisted on her complaints, the Office of the Ombudsman would carry out a preliminary inquiry into her complaints.  It was for helping her to decide whether to conduct a thorough investigation into the applicant’s complaints that the Ombudsman undertook the preliminary inquiry.  This was an approach allowed by the law to handle complaints.  Furthermore, as I have already stated, the law does not make it mandatory for the Ombudsman to conduct a thorough investigation into each and every complaint.  

38.As to the approach adopted by the Ombudsman to conduct a preliminary inquiry, she was vested with the power to conduct in the way she deems appropriate.  The materials pertaining to the present application reveal that the Ombudsman had made enquiries with and obtained relevant information from the Official Receiver’s Office.  The applicant had also furnished written statements and quite a lot of information to the Office of the Ombudsman.  After considering the matter, the Ombudsman came to the view that there had been no maladministration or bias towards the trustee.

39.In R v Parliamentary Commissioner for Administration ex parte Dyer, the English court said that section 5(5) of the Parliamentary Commission Act 1967 (which is equivalent to section 9 of The Ombudsman Ordinance) and section 7(2) of the same Act (which is similar to section 12(3)(6) of The Ombudsman Ordinance) conferred upon the Ombudsman a considerable power of discretion and when the Ombudsman exercises her discretion in dealing with a complaint, subjective judgment is inevitable.  For this reason, it is certainly difficult to challenge the Ombudsman’s decision in this regard based on the legal principle of Wednesbury unreasonableness under the public law.  In the present case, I find that the above observation also applies to the conclusion and decision made by the Ombudsman after the preliminary inquiry.

40.Furthermore, the Ombudsman also explained in her letter of 2 June 2006 about her conclusion that there had been no maladministration on the part of the Official Receiver’s Office in dealing with the applicant’s complaints: see the section captioned “Our Comments” in that letter.

41.In addition, by virtue of section 83 of the Bankruptcy Ordinance, the applicant as a bankrupt can make an application to the court if she has been aggrieved by the trustee’s acts.  In other words, the applicant can seek remedy in respect of her complaints against the trustee by way of legal proceedings.  In the circumstances, pursuant to section 10(1)(e)(ii) of The Ombudsman Ordinance, the Ombudsman should not conduct a thorough investigation into the applicant’s complaints.

42.As to the second ground for application, which contends that the Ombudsman acted unreasonably in deciding to close the case when the Official Receiver’s Office had not yet replied to the applicant’s letter of 17 March 2006, the complaint that the Ombudsman dealt with was the one made by the applicant in November 2005.  Although the applicant subsequently provided further information to the Ombudsman’s Office, the focus in handling the complaint was still on the content of the complaints which the applicant had already put forward.  It was neither obligatory nor necessary for the Ombudsman to withhold her decision and wait for the Official Receiver’s Office to reply to the applicant’s letters and complaints which were addressed to the Official Receiver’s Office after she had filed her complaints with the Ombudsman.

43.Based on the above analysis, the Ombudsman’s decision of 2 June 2006 was neither Wednesbury unreasonable under the public law nor tainted with procedural impropriety.  The ground for application in relation to this decision must also fail.

Letter of the Ombudsman dated 15 August 2006

44.The applicant contends that the Ombudsman was discourteous in her letter of 15 August 2006 and applies for a restraining order in that connection.  In my view, this ground for application cannot stand for two reasons.  First, even if the Ombudsman were impolite in her wording, it would not constitute a legally recognized ground for application for judicial review, and the court would not exercise its discretion under the public law to impose a restraining order or grant any relief.  Secondly, the Ombudsman’s statement that she would only acknowledge receipt of the applicant’s letters in future without giving a reply was nothing more than a direct assertion of her stand and should not be regarded as discriminatory or grossly discourteous.

The Ombudsman’s Annual Report 2006

45.The applicant also contends that the reference to opinionated complainants in the Ombudsman’s Annual Report 2006 was derogatory of complainants whose complaints had been rejected by the Ombudsman.  As I have stated before, even if the use of the word “opinionated” were inappropriate, it would not constitute a ground for judicial review and the court would not exercise its discretion to grant any relief.

Maladministration on the part of the Ombudsman

46.As to the applicant’s allegation that the Ombudsman’s discourteous remarks constituted maladministration, I do not agree that the wording in the Ombudsman’s letter of 15 August 2006 and the Annual Report 2006 are sufficient to show that there was maladministration on the part of the Ombudsman or constitute a valid ground for granting the relief that the applicant is seeking.

The applicant’s arrears of tax

47.As to the applicant’s arrears of tax and the relevant penalty, she contends that they arose out of the trustee’s misconduct.  Details are set out in the letters together with attachments that the applicant sent to the trustee, the Official Receiver’s Office and the Ombudsman.

48.In HCB 13304/2002, the applicant has made complaints against the trustee in this regard as well as others as grounds of objection to the trustee’s application for an extension of her bankruptcy.  The bankruptcy court will deal with this issue of arrears of tax and the applicant’s other complaints against the trustee, and other courts should not hear and rule on the same.

49.Furthermore, the court hearing the judicial review application has no jurisdiction to decide or declare whether the applicant is liable to repay the accrued arrears of tax.

50.For these reasons, the applicant’s eighth ground for application and the third item of relief sought do not stand.

Conclusion

51.For the above reasons and analysis, the applicant’s application for judicial review must fail.  The application is accordingly dismissed.

52.As the applicant is still a bankrupt, I do not intend to make any order as to costs in the present action.  This is a costs order nisi.  If neither party applies for a variation within 14 days from the date of handing down this judgment, the order shall become absolute upon expiry of that period.

Applicant in person, present.

Mr Peter Lo instructed by Kao, Lee & Yip for the respondent.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. Edmund Cham, Solicitor.