Tsui Kin Kwok Johnnie v. Commissioner of Police

HCMP 641/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 641 OF 2010

(ON AN INTENDED APPEAL FROM HCAL NO. 50 OF 2009)

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BETWEEN

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Before: Hon Tang VP and Yeung JA in Court

Date of Hearing: 10 June 2010

Date of Decision: 10 June 2010

Date of Reasons for Decision: 24 June 2010

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REASONS FOR DECISION

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Hon Tang VP:

1.Following various disciplinary proceedings, the first of which was commenced in March 1997, on 8 October 1998, the applicant was ordered to be retired compulsorily from the police force with deferred pension with effect from 15 October 1998. He was 55 on 27 June 2008 and has been receiving pension since.

2.Following the decision of Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, on 11 May 2009, the applicant applied for leave to apply for judicial review against the relevant decisions in the earlier disciplinary proceedings, claiming that his right to a fair hearing in those proceedings have been infringed, in contravention of article 10 of the Hong Kong Bill of Rights (“HKBOR”).

3.He also sought in the alternative a declaration that the 3-month time restriction laid down in O. 59 r. 4 of the Rules of the High Court, Cap. 4A is inconsistent with section 6(1) in the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”), and therefore shall not apply in any action in breach of the Ordinance, or other proceedings (including judicial review proceedings) in which a violation or threatened violation of the HKBOR is relevant.

4.O. 53 r .4 provides:

“ (1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

5.On 26 February 2010, A Cheung J refused leave to apply for judicial review.

6.The applicant then sought leave to appeal against the order of the judgment of A Cheung J out of time. 

7.The applicant relied on a dictum of Sir Anthony Mason NPJ in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170 at 208 where he said:

“111. … The width of s.6(1) is not in doubt; it authorizes the court to grant such remedy or relief, or make such order, in respect of such breach or violation as it has power to make or grant in the proceedings as it considers appropriate and just. Section 6(1) is directed not only to the case of reading down a statute in order to avoid a breach or violation of the BOR but also to invalidating a statutory provision when an interpretive remedy is not possible. There is no relevant limit on this Court’s power under s.6(1) unless such a limit is to be found in the sub-section itself.”

8.What Sir Anthony Mason said has been taken out of context, as the learned judge has explained Sir Anthony Mason was not concerned with any time limit.

9.In Lau Luen Hung Thomas v Insider Dealing Tribunal and Anor FAMV 46/2009 (unreported, dated 4 December 2009), the Appeal Committee was concerned with an application for leave to appeal against the refusal of the Court of Appeal to grant leave to appeal out of time.  After the judgment in Koon Wing Yee which was delivered on 18 March 2008, Mr Lau sought leave to appeal from the Court of Appeal out of time.  Leave to appeal out of time was refused.  Time for appeal was imposed by O. 59 r. 4.  If the submission of the applicant here is correct, that time limit would also be inconsistent with the HKBOR.  I agree with A Cheung J that Mr Butt’s submission is incorrect.

10.Whether leave to appeal out of time should be granted is governed by the decision in the case of HKSAR v Hung Chan Wa and Anor (2006) 9 HKCFAR 614.  I agree with the reasons given by the learned judge in paras. 31 to 37 of his judgment.  The circumstances of this case are not sufficiently exceptional to warrant an extension of time. 

11.For the above reasons, we have refused to grant an extension of time to appeal because the appeal has no realistic prospect of success.

Hon Yeung JA:

12.I agree.

Mr Anthony Butt, instructed by Messrs K Y Woo & Co., for the Applicant.

Ms Bethany Choi, Ag SGC of Department of Justice, for the Respondent.