何建民 v. 香港警務處處長

CACV 175/2012,
CACV 200/2012,
CACV 228/2012
and CACV 229/2012
(Heard together)

香港特別行政區

高等法院上訴法庭

民事司法管轄權

民事上訴

民事上訴案件2012年第175號

（原本案件編號：高等法院雜項案件2010年第381號）

________________________

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 200 OF 2012

(ON APPEAL FROM HCA NO. 429 OF 2010)

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BETWEEN

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 228 OF 2012

(ON APPEAL FROM HCA NO. 480 OF 2010)

________________________

BETWEEN

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 229 OF 2012

(ON APPEAL FROM HCA NO. 508 OF 2010)

________________________

BETWEEN

________________________

(Heard Together)

Before: Hon Lam VP, Kwan JA and Poon J in Court

Date of Hearing: 23 October 2014

Date of Judgment: 31 October 2014

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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.There are four applications before us seeking leave to appeal to the Court of Final Appeal in respect of our judgment of 26 May 2014. By that judgment, we dismissed the appeals of the four appellants against the striking out of their respective claims against the Commissioner of Police. We upheld the judge’s conclusion that the bringing of these claims was abuse of the process in view of the failures of the appellants in their earlier applications by way of judicial review. We shall not repeat the background of the cases which was set out in our judgment of 26 May 2014.

2.It is plain that the Appellants’ claims cannot fall within Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance Cap 484 and they do not seek leave to appeal as of right. 

3.In their Notices of Motion, the Appellants formulated their respective questions of great, general or public importance as follows:

“CACV 200/2012: Leung Fuk Wah Oil v Secretary for Justice

CACV 229/2012: Ng Sai Hing v Secretary for Justice

Whether a police officer who has applied for judicial review challenging the lawfulness of a decision to terminate his contract of service with the Hong Kong Police Force, and which application had been dismissed, may make a subsequent claim for damages in relation to the termination based on a ground which had not been raised in the earlier judicial review application?

CACV 228/2012: Lai Ying On v Secretary for Justice

Whether a police officer who has applied for leave to apply for judicial review intending to challenge the lawfulness of a decision to terminate his contract of service with the Hong Kong Police Force, and which application for leave had been refused, may make a subsequent claim for damages in relation to the termination based on a ground which had been raised in the earlier application for leave to apply for judicial review?

CACV 175/2012: Ho Kin Man v Commissioner of Police

Whether a police officer who has applied for leave to apply for judicial review intending to challenge the lawfulness of a decision to terminate his contract of service with the Hong Kong Police Force, and which application for leave had been refused, may make a subsequent claim for damages in relation to the termination based on a ground which had been raised but had been wrongly rejected in the earlier application for leave to apply for judicial review?”

4.They also relied on the “or otherwise limb” of Section 22(1)(b).

5.Though there were applications for the adjournment of the hearing due to their applications for legal aid, we did not grant the adjournment since the applications are straightforward. The Appellants were able to place before us written and oral submissions to support their applications. We have duly considered the same. Further, if they were not successful before us, the Appellants can further apply to the Court of Final Appeal for leave.

6.The applications for leave are opposed by Mr Shieh SC on behalf of the Commissioner.

7.We agree with Mr Shieh that the questions as formulated do not raise any question of great, general or public importance. There is no challenge (and there cannot be any challenge) to the relevant legal principles on abuse of process which we relied upon in our judgment of 26 May 2014.  Insofar as the Appellants intended to challenge our application of those principles to the facts of their respective cases, those were fact-sensitive considerations.  The Appellants did not pinpoint specifically how their general challenges (as set out in the questions in the Notices of Motion) could be regarded as raising questions of great, general or public importance.

8.The main reason put forward for not advancing or prosecuting further a challenge as to the constitutionality of Regulation 9(11) and (12) of the Police (Disciplinary) regulations  Cap 232A was the then state of authorities.  It is beyond argument that this per se cannot be enough: see Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462; Chan Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460.  We have also explained in our judgment how the weighing of the relevant considerations led to our conclusions.  The questions as formulated did not demonstrate any error in that respect which can be distilled into a question of great, general or public importance.

9.In his supplemental submissions, Mr Ho, the Appellant in CACV 175 of 2012 referred to his right under Arts 25 and 35 of the Basic Law and his legitimate expectation for compensation derived from Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237.  These were not points canvassed in the appeal before us.  In any event, it is difficult to see how he could have derived any legitimate expectation for compensation from a case in which he played no part.  His reliance on Arts 25 is misplaced.  The striking out of a claim as abuse of process does not infringe rights under Article 35.  We do not find these new arguments to be reasonably arguable. 

10.In his oral submissions, Mr Ho also referred to R v Kwok Hing-man [1994] 2 HKCLR 160. He did not produce a copy of the judgment at the hearing but subsequently, based on the information he provided, we have located and read the same. That case was about conviction for unlawful possession under s30 of the Summary Offence Ordinance. That offence was held by the Privy Council in AG v Lee Kwong-kut [1993] AC 951 to be inconsistent with s3(2) of the Hong Kong Bill of Rights Ordinance and as such being impliedly repealed. Convictions of other defendants (viz other than Lee Kwong-kut himself) for that offence were therefore set aside and for that purpose, leave to appeal out of time was granted.

11.R v Kwok Hing-man , supra, was considered by the Court of Final Appeal in HKSAR v Hung Chun Wa (2006) 9 HKCFAR 614 at para 25 where Li CJ regarded Kwok Hing-man as a decision about a non-existent offence and left open the question as to its correctness. Hung Chun Wa reaffirmed the principle of finality which was applied in Clarence Chan Kang Chau v Commissioner of Police (2010) 13 HKCFAR 462, a decision we relied upon in our main judgment.

12.In Lau Luen Hung v Insider Dealing Tribunal (2009) 12 HKCFAR 955, the appeal committee of the Court of Final Appeal further commented upon Kwok Hing-man at para 9. In the context of an application for extension of time to challenge the finding of insider dealing, Li CJ held that Kwok Hing-man had no application.

13.Kwok Hing-man was also cited by counsel before the Court of Final Appeal but not referred to in the judgment of the court in Clarence Chan Kang Chau v Commissioner of Police (2010) 13 HKCFAR 462.

14.In our judgment, irrespective of its correctness in view of Hung Chun Wa and the subsequent decisions on finality, Kwok Hing-man is clearly inapplicable in the present context as we are not dealing with criminal convictions for an offence which is held by the court to be constitutionally invalid and as such non-existent at the time of the offence.         

15.The Appellants devoted substantial parts of their submissions to the merits of their case and the reasons why they could not rely on the constitutional point decided in Lam Siu Po or could not succeed in their previous proceedings. We are not going to repeat what we have said in our main judgment. Suffice to say that we agree with Mr Shieh that the judgment in Chau Cheuk Yiu v Poon Kit Sang (2012) 15 HKCFAR 460 had adequately explained why the Appellants’ understandable grievance cannot outweigh the importance of finality in the overall consideration of the matters.

16.We are also not satisfied that there are exceptional circumstances so that leave should be granted on the otherwise limb.

17.For these reasons, the Notices of Motion of the Appellants are dismissed with costs, such costs shall be taxed if not agreed.

The Plaintiff/Applicant in CACV 175/2012 appeared in person

The Plaintiff/Applicant in CACV 200/2012 appeared in person

The Plaintiff/Applicant in CACV 228/2012 appeared in person

The Plaintiff/Applicant in CACV 229/2012 appeared in person

Mr Paul Shieh, SC, instructed by Department of Justice, for the Defendant/Respondent in all appeals