Cheung Mei Yin v. Postmaster General

CACV 209/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 209 OF 2007

(ON APPEAL FROM HCAL NO. 66 OF 2007)

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BETWEEN

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.On 14 June 2007, the Applicant lodged a Form 86A seeking leave to apply for judicial review to challenge the decision of the Postmaster General made on 23 May 1996 or alternatively on 6 June 1997 in respect of the cancellation of stamps bearing the cypher of the British Crown and the deadline for their exchange. The Applicant said she has about $300 worth of such stamps and she was not aware of the decision until 2007. The application was heard by A Cheung J (as he then was) on 4 July 2007. On 5 July 2007, A Cheung J refused leave, describing the application as “a hopelessly late application”.

2.At paras 7 to 10 of the judgment of 5 July 2007, His Lordship summarised the grounds for his decision as follows:

“7. In the instant case, the delay of 10 years is as lengthy as can be imagined. The only reason given for the very long delay is that the Applicant was unaware of the Postmaster General’s public announcement or Gazette notification.

8. I do not accept that as a reasonable excuse for the undue delay. Ignorance of the Postmaster General’s public announcement and Gazette notification is no excuse.

9. Nor do I see any good reason for extending the period within which to make the application, as the court is empowered to do under Order 53 rule 4(1).

10. In that regard, I have considered the grounds for applying for judicial review set out in the supporting documents.  They pray in aid provisions in the Basic Law, the Hong Kong Bill of Rights and the International Covenant on Civil and Political Rights, as well as standard public law grounds for judicial review.  Since this is merely a leave application, all I need say is that I am not impressed by them.”

3.His Lordship expanded on the reasons why he did not find the intended application to be meritorious in the subsequent paragraphs of his judgment.

4.The Applicant appealed against that decision to the Court of Appeal.  The appeal was heard before Rogers VP and Le Pichon JA on 22 July 2008.  The Court of Appeal dismissed the appeal on the same date.  The court was of the view that it would clearly be detrimental to good administration to allow this matter to be aired so long after the decision was made, see para 8 of the judgment of 22 July 2008.

5.By a Notice of Intended Application for Leave to Appeal and a Notice of Motion both dated 11 June 2013, the Applicant seeks leave to appeal to the Court of Final Appeal out of time.  The application is of course grossly out of time.  Under section 24 of the Hong Kong Court of Final Appeal Ordinance, application for leave to appeal should be filed within 28 days from the date of the judgment to be appealed from.  The delay of the Applicant is therefore slightly less than 5 years.  For an application for leave to apply for judicial review, which is itself seriously out of time, this is rather remarkable.

6.The Applicant explained in her affirmation of 11 June 2013 that after the decision of the Court of Appeal, she decided to drop the matter due to cost considerations.  Then, in 2013 when she learnt about the Court of Final Appeal’s decision in FACV 4 of 2012 on 13 May 2013 she decided to resuscitate her proceedings.  FACV 4 of 2012 is the case of W v Registrar of Marriage [2013] 3 HKLRD 90.  It has nothing to do with the issues in the present case.  The significance the Applicant attached to it was that it demonstrated the liberal attitude of our Court of Final Appeal.

7.It is again remarkable that this could seriously be put forward by counsel for the Applicant as an explanation for the long delay.  Judges in Hong Kong decide cases according to the law, not according to one’s personal outlook, be it liberal, conservative or otherwise.  Needless to say, we do not accept the justification put forward by the Applicant as giving rise to good reason for extending time to her to make her application for leave to appeal.

8.In the Notice of Motion, counsel for the Applicant puts forward 16 questions which he said were questions of great general or public importance.  Various provisions of the Basic Law and the Hong Kong Bill of Rights were relied upon: Articles 6, 35 and 105 of the Basic Law and Articles 10 and 22 of the Bill of Rights.  Those 16 questions are:

“(1) Whether the Decision of the intended Respondent dated 23 May 1997 or alternatively dated 6 June 1997 was a violation of Article 6 of the Basic Law so that it should be quashed and declared as an illegal or otherwise an unlawful act?

(2) Whether the Decision of the intended Respondent dated 23 May 1997 or alternatively dated 6 June 1997 was a violation of Article 105 of the Basic Law so that it should be quashed and declared as an illegal or otherwise an unlawful act?

(3) Given that by virtue of Article 6 of the Basic Law it is the Government who should protect ownership of private property, and by Article 105 of the Basic Law which states that “…such compensation shall correspond to the real value of the property concerned at the time and … paid without undue delay”, and again given that no compensation had been offered to the Applicant, is it fair to the Applicant still requiring her to observe any time limit in submitting her judicial review application or is it by itself alone a valid ground to grant her extension to file her judicial review application?

(4) Whether the Decision of the intended Respondent dated 23 May 1997 or alternatively dated 6 June 1997 was a violation of Article 22 of the Bill of Rights (Bill or Rights Ordinance, Cap 383) so that it should be quashed and declared as an illegal or otherwise an unlawful act?

(5) Whether the Decision of the intended Respondent dated 23 May 1997 or alternatively dated 6 June 1997 was a violation and thus was incompatible with the rights as may be protected according to Article 1 of the First Protocol of the European Convention on Human Rights and therefore the Decision should be quashed?

(6) Given that the Decision of the intended respondent, being penal nature was it necessary to have legislative sanction instead of by the intended respondent pronouncing an administrative decision only?

(7) Whether the Court of Appeal erred in law to hold that the Decision, relying on Regulation 28 of Post Office Rules (Cap 98A), and made under Section 3 of Post Office Ordinance (Cap 98) did not ultra vires the principal Ordinance?

(8) Whether the Decision of the intended Respondent dated 23 May 1997 or alternatively dated 6 June 1997 was so unreasonable that it is liable to be quashed as (inter alia) the Applicant has a legitimate expectation that the stamps so purchased by her prior to 30 June 1997 can be used as ordinary stamps after 1^st July 1997 or alternatively be allowed to exchange for currently usable stamps?

(9) Whether it was reasonable for the intended respondent to set an one month time limit, between 3^rd – 31^st July 1997 only, for persons having purchased stamps prior to 30 June 1997 to exchange for current definitive stamps of an equivalent value?

(10) Given that Articles 6 or 105 of the Basic Law or Article 22 of the Bill of Rights does/do not impose any time limit on the part of the Applicant, how to reconcile the anomalies of Articles 6 or 105 of the Basic Law or Article 22 of the Bill of Rights with the 3 months time limit requirement in Section 21K(6) of the High Court Ordinance (Cap 4)?

(11) And given that the Applicant had affirmed in her supporting affirmation that she was not aware of the Decision until she went to the Post Office and tried to use the stamp on 25 May 2007, to what extent, if any, is the alleged “Delay” a factor or an important factor for an application for leave to apply for judicial review?

(12) And also if in so far as “Delay” is the only issue in a judicial review application, what is/are the respective weight(s) given to the following factors and each one or ones of them shall prevail over the other:

(i) the circumstances of how the public authority pronounced the Decision that would affect the applicant;

(ii) the way or manner how the Decision was published or made known to the applicant;

(iii) what steps the public authority had made to convey the Decision to the applicant;

(iv) the rationale of the Decision;

(v) had the intended respondent thought about the consequences after the implementation of the Decision;

(vi) were there any public consultations before the implementation of the Decision;

(vii) what remedial actions, if any, would be taken to ensure the applicant actually know of the Decision;

(viii) the length of the alleged delay;

(ix) the justification for the delay;

(x) the respective responsibility on the part of the public authority and on part of the applicant for the delay;

(xi) prejudice to the applicant and to the defendant, if any;

(xii) given that the stamps were sold to the general public for use as postage stamps, why the intended respondent fixed such a short period, between 3^rd – 31^st July 1997, for the general public to exchange for current usable stamps;

(xiii) the number of the general public that will be affected by the Decision or when there is clear evidence that substantial “public interest” will be involved in the case.

(13) Was the Decision ultra vires or so unreasonable that Leave to appeal ought to be given to the Applicant even if there was delay in applying for judicial review?

(14) Whether the Judgment in the Court of Appeal or in the High Court was/were in effect, upholding that delay was a vital factor, a blot to the Applicant’s right to access to the Court (See Article 35 of the Basic Law, Article 10 of the Bill of Rights)?

(15) Whether the appeal heard before the Court of Appeal on 22 July 2008 was an interlocutory appeal or a final appeal, and if it was a final appeal, whether it was per incuriam as there were only 2 justices of appeal hearing the appeal on 22 July 2008?

Further or alternatively, that the Applicant will rely on the question(s) involved in the appeal is/are one/ones which, or otherwise, ought to be submitted to the Court for decision as the 2^nd limb of Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484.

(16) Given that it is the first case in this nature to be brought before this Court and the Court of Final Appeal, and that there are bound to be many stamps bearing the Queen’s cypher still in the possession of the general public, whether Leave should be granted by this Court or the Court of Final Appeal to enable the Applicant to commence her Judicial Review application against the intended Respondent as there is substantial public interest involved in this case.”

9.We are not satisfied that these questions raise any questions of great general or public importance.  We would not go through these questions one by one.  It is quite apparent that the questions are fact-specific.  The Applicant’s case depends on her purported ignorance about the cancellation of the stamps in 1997.  Once the court rejected her ignorance as good reason for extending the time for applying for judicial review, given the long delay in the matter, her application is doomed to fail.  It is well settled that delay which is detrimental to good administration is a good reason for refusing leave to apply for judicial review.  The other questions raised by her are all academic.  In that regard, we fail to see how it can be seriously argued that the judge and the Court of Appeal were incorrect in rejecting her excuse for extending time.  Thus analysed, the intended appeal is not reasonably arguable.

10.As regards the contention that the matter should have been heard before 3 justices instead of 2, this appeal was heard before Rogers VP and Le Pichon JA on 22 July 2008.  That was before the implementation of the Civil Justice Reforms and Order 59 Rule 21 had not come into operation. At that stage, the test for deciding whether a matter is interlocutory or final is the application approach, see Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222.  According to that approach, a judgment or order in an application is to be regarded as interlocutory unless it would have the effect, whatever the result of the application, of finally disposing of the controversy between the parties (see First Pacific Bank v Robert Fung [1990] 1 HKLR 527).  Applying that test, the Court of Appeal correctly concluded that the appeal was interlocutory since if leave were granted, the controversy would not have been disposed of.  Hence, there is no merit in Mr Lam’s challenge to the jurisdiction of the 2-member court. 

11.Since then, because of the implementation of Order 59 Rule 21(1)(g) and the observations of Ribeiro PJ in Champion Concord Ltd v Lau Koon Foo (No 2) (2011) 14 HKCFAR 837 at paras 27 to 32, the law has been changed.  However, that cannot assist the Applicant as the appeal was heard before the implementation of this rule.

12.For these reasons we refuse to extend time for making the application for leave to appeal and dismiss the application for leave.

Mr Andy Lam, instructed by Ivan Tang & Co., for the Applicant/Appellant