Chau Cheuk Yiu v. Poon Kit Sang and Others

HCMP 121/2010

in the high court of the

hong kong special administrative region

court of appeal

miscellaneous proceedings no. 121 of 2010

(on aN INTENDED Appeal from HCAL NO. 97 of 2004)

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BETWEEN

Before: Hon Rogers VP in Chambers

Date of Hearing: 2 February 2010

Date of Decision: 2 February 2010

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D E C I S I O N

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1.This is an application for leave to appeal from a judgment of A Cheung J, given on 8 February 2007.

2.The matter that the judge was dealing with then was an application for judicial review of police disciplinary proceedings and it is sufficient to set out in very brief detail from the judgment.  I have been supplied with a copy of the translation, which I understand is agreed.

3.On 14 August 2003 there was the first hearing of the disciplinary proceedings.  Before that, on 1 August, the applicant for judicial review had approached a senior officer and asked him to act for him in the disciplinary proceedings.  As soon as he knew that the date had been fixed for 2 October 2003, he told that officer, an inspector, what the actual date was and the inspector said he could not make it because he had other commitments that day to attend another court hearing.  So the applicant then asked another officer, another inspector.  Again, on 10 September he was told by that officer that he could not act because of his work commitments.  So the following day, the applicant asked another senior inspector to be his defence representative.  That was on 11 September.  On 23 September, that inspector suddenly told the applicant he could not make it either because of another court commitment.

4.The following day, the applicant then contacted the Training Staff Relations Officer of the Police Force and asked for assistance.  He was simply given a list of inspectors who could be invited and he did approach one but nothing came up.  So on 2 October the disciplinary proceedings were reconvened and the applicant then applied for an adjournment of the hearing because he could not find a defence representative.  That was denied and the hearing went ahead.  He had to represent himself and did the best he could, no doubt.

5.The applicant then took out an application for judicial review and he relied on Article 10 of the Hong Kong Bill of Rights Ordinance.  As the judge recorded, at paragraph 14 of his judgment:

“However, owing to subsequent development of case law, at this hearing the Applicant agreed that those grounds were unarguable and therefore abandoned reliance on those grounds as a support for his application for judicial review.”

6.That of course, was quite correct.  The applicant, on his application for judicial review was acting in person.  It was the judge’s duty to assist the applicant as to what the law was or what the state of the law was; the state of the law at that stage was that the point was not a good one.  However, in March of this year, the Court of Final Appeal ruled that the point was a good one and hence the applicant had been, prima facie, entitled to a representation.

7.There are a number of points which have been raised as to why there should not be an extension of time.  But given the history, I have to say that I approach this on the basis that, looking at it overall, it is only fair that the applicant at least has a chance of addressing the Court of Appeal as to whether his appeal should be allowed.  It might be more sensible, really, that the judicial review was reheard and this point allowed to be argued.  That seems to me the sensible course but the state of our legal procedure is that I cannot make such an order today, although the parties could perhaps agree it.

8.But what is said is, first of all, that there has been a very long delay from the date of the judgment and it was said that there was also a delay before this application was put in; but, no doubt, once the decision of the Court of Final Appeal came out, the applicant had to take legal advice on it.  I do not know whether he has legal aid or not, but maybe an application had to be made in that respect.  So the delay since the Court of Final Appeal decision is not a matter which concerns me.

9.It has been asked rhetorically what else could he have done in the disciplinary proceedings had he been represented, what other points could have been taken?  That is the whole point of having legal representation.  There are no doubt many things that a skilled lawyer can do, or a proper representative can do or not do in the course of proceedings.  There is an old adage that a lawyer is his own worst client.  In other words, when somebody is representing themselves they are often not very adept at doing it and they cannot see precisely what should be done and what should not be done.  That is perhaps one of the reasons why one has representation and that is why the Court of Final Appeal has said that Article 10 does apply to situations such as this.

10.It has been argued that the appeal is hopeless.  Well, I do not consider that that point is beyond argument, but I go back to where I began, that I consider that, in the circumstances of this case, it is right that this matter should at least go before three judges of the Court of Appeal for them to decide the matter.  Therefore I propose to grant the extension of time for leave to appeal.

11.Costs are reserved.

Ms Margaret Ng, instructed by Messrs Hastings & Co., for the Applicant

Mr Andrew Mak, instructed by Department of Justice, for the 1st to 4th Respondents