黃志堅 v. 調查委員會(2012年10月1日南丫島附近撞船事故）

CACV 31/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 31 OF 2015

(ON APPEAL FROM HCAL NO. 113 of 2013)

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JUDGMENT

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

1.On 15 January 2015, Poon J dismissed the application of the Applicant for a protective costs order [“PCO”] in respect of his application for judicial review in HCAL 113 of 2013. Without seeking leave to appeal, the Applicant lodged a Notice of Appeal on 9 February 2015 against that decision. Despite the court’s reminders on 10, 13 and 16 February 2015 that leave is required as the decision of Poon J is interlocutory in nature, the Applicant did not apply for leave.

2.The court therefore directed the matter to be listed for considering whether the appeal should be struck out.

3.The Applicant, based on his own reading of the guidance in a booklet published by the Judiciary on appeal procedures, took the view that leave should not be required.  We have read the relevant parts of the booklet.  It does not cover appeals in respect of refusal of PCO in the context of an application for judicial review. 

4.The Applicant contended that the appeal is not interlocutory in nature as he would not pursue the application of judicial review in the absence of a protective costs order.  He had applied for the discontinuance of his application for judicial review on 26 February 2015. Pursuant to that application, Poon J ordered the application for judicial review be dismissed with no order as to costs on 3 March 2015.

5.We cannot accept that contention. Subject to Order 59 Rule 21(2)(g) (in respect of judgment entered pursuant to an unless order, which is not applicable here as the order of Poon J is not an unless order) whether a decision is interlocutory or final in nature for the purpose of s14AA of the High Court Ordinance must be determined by reference to the decision itself rather than what a litigant decided to do in view of such decision.  The relevant test for deciding whether an order is interlocutory or final is the application test, see Shell Hong Kong Ltd v Yeung Wai Man Kiu Yip Co Ltd (2003) 6 HKCFAR 222). 

6.It is a matter of the Applicant’s own choice as to whether he would continue with his application for judicial review in the absence of a PCO.  Plainly, the making or refusal of a PCO cannot finally dispose of the application for judicial review and therefore, in accordance with the application test, the order is interlocutory in nature.  Whatever choice the Applicant makes in light of the refusal of Poon J to grant the PCO, it could not affect the interlocutory nature of the order.

7.The Applicant tried to draw an analogy with the situation where leave to apply for judicial review was granted on some grounds but refused on other grounds.  In Clarence Chan v Commissioner of Police (2010) 13 HKCFAR 462, Bokhary PJ held that an appeal against such an order by an applicant is tantamount to an appeal against the refusal to grant leave, and it was held by this court in陳紹鈞and高等法院司法常務官CACV 209 of 2014, 16 December 2014 that such a decision was final in nature in light of O59 r21(1)(g).

8.We do not accept that such an analogy can be drawn.  Refusal to grant leave for judicial review is specifically dealt with under O59 r21(1)(g) and according to Champion Concord Ltd v Lau Koon Foo (2011) 14 HKCFAR 837, the provisions in O59 r21 should guide the court in deciding whether an order is interlocutory or final in nature for the purpose of s14AA.  None of the provisions in O59 r21 applies to an application for PCO.  Thus, the analogy drawn by the Applicant is misconceived.

9.We come to the firm conclusion that the order of Poon J of 15 January 2015 is interlocutory in nature and pursuant to s14AA, leave must be obtained before the Applicant can appeal against such order.

10.Without leave, the appeal is incompetent and it falls to be struck out and dismissed, see Fok Hing (HK) trading Ltd v Guna Wan-Indra trading as Bumipala Dhanadwipa CACV 74 of 2014, 4 July 2014.

11.After some wavering, Mr Wong told us that if this court were of the view that leave is required, he would apply for leave to appeal from us.

12.However, in light of the discontinuance of the judicial review by the Applicant and its dismissal on 3 March 2015, even if the Applicant were to apply for leave now, the intended appeal would be academic.

13.The Applicant said he discontinued the proceedings below because he was told by the Registry that he could only appeal against a final order.  All along he intended to appeal against the refusal of Poon J to grant him the PCO.  Therefore he procured the final dismissal of his application for judicial review in order to facilitate his appeal.  He further said that if he were allowed to pursue his appeal and if he succeeds in the appeal, he would revive his application for judicial review.

14.In our judgment, the Applicant had twisted the messages given to him by the Registry.  The Registry had not told him that he could not appeal unless there is a final decision in the application for judicial review.  The correspondence clearly showed that what he was told was that he should apply for leave to appeal before he could appeal against the refusal to grant the PCO.  He insisted on his own misapprehension that leave should not be required.  The Registry had never told him that he had to apply for the discontinuance of the application for judicial review.  It was entirely a scheme on his part, a misconceived scheme, to out-manoeuvre the requirement of obtaining leave to appeal.  In this connection, it is noteworthy that he applied for discontinuance on 26 February 2015 after the court had reminded him of the leave requirement.  As we have analysed above, the discontinuance and the subsequent dismissal of the application for judicial review could not avail him in the appeal in respect of the refusal of PCO.

15.As Ms Sit, appearing for the putative interested party, submitted, there is no procedure for the revival of the application for judicial review which had been dismissed pursuant to the Applicant’s own application for discontinuance.  This court, in this appeal, cannot grant any relief which would operate in the context of a fresh application for judicial review by the Applicant.  If the Applicant were to apply afresh for judicial review and a PCO in that context, that has to be considered afresh by a judge in the Court of First Instance  and the discretion has to be exercised afresh in light of the materials before the court in the new proceedings.  Thus, the present appeal is academic.

16.On the whole, we agree with the analysis of Ms Sit.  We reject the submission of the Applicant that notwithstanding his own ill-conceived procurement of the dismissal of the application for judicial review, he could apply for its revival later.   

17.In any event, we have also considered the merits of the intended appeal.  We do not see any reason to warrant this court’s interference with the exercise of discretion by Poon J in deciding not to grant the PCO.  The judge was clearly correct in holding that the private interest of the Applicant in having his name and integrity vindicated was the most important driving force behind this application for judicial review.  This factor, even assuming it is not determinative (on which we express no view in this judgment), must carry great weight.  The judge was also correct in holding that the issues raised were about the application of well settled principles of law on the facts of this case, and for that reason the application does not involve any question of general public importance.  Thus, the intended appeal has no merit whatsoever and this court will not grant leave in any event.

18.For these reasons, the appeal ought to be struck out and dismissed.  We order accordingly. 

19.We agree with Ms Sit that there is no basis for this court to interfere with the direction of Au J that the papers be served on the Secretary for Transport and Housing and the direction of Poon J for the service of the application of PCO on the Secretary.  The Secretary had put forward submissions before Poon J on PCO.  It has to be borne in mind that in accordance with well established practice, the Commission of Inquiry, the named respondent to the judicial review, would not take an active part in the proceedings.  And in accordance with settled practice, in such situations, the government authority having responsibility over the subject matter could be joined as the interested party in the application for judicial review.  Thus the Secretary is a legitimate party in this appeal even though the Applicant objected to the same.  We therefore order the Applicant to pay the costs of the Secretary as the putative interested party in the proceedings below, such costs are to be taxed if not agreed.

The applicant appeared in person

Ms Eva Sit, instructed by Department of Justice, for the putative interested party