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

TSUI KIN KWOK JOHNNIE Applicant
(徐健國)
and
COMMISSIONER OF POLICE Respondent

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Before: Hon Tang Ag CJHC, Yeung JA and Lam J in Court

Date of Hearing: 16 September 2010

Date of Decision: 16 September 2010

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DECISION

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Hon Tang Ag CJHC:

1. Following disciplinary proceedings, the applicant was compulsorily retired from the police force with deferred pension with effectfrom 15 October 1998. He reached the age of 55 on 27 June 2008, and has been receiving pension ever since.

2. Following the decision of Court of Final Appeal in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575, the applicant applied for leave to apply for judicial review against his compulsory retirement, claiming that his right to a fairhearing in the disciplinary proceedings have been infringed in contravention of article 10 of the Hong Kong Bill of Rights (“HKBOR”). He sought in the alternative a declaration that the 3-month time restriction laid down in O. 53 r. 4 of the Rules of the High Court,Cap. 4A is inconsistent with section 6(1) of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”).

3. His application for leave was dismissed by A Cheung J on 26 February 2010.

4. The learned judge held that O. 53 r. 4 is not inconsistent with section 6(1) of the BOR. And as the application was made out oftime, he refused to extend time following the decision of the Court of Final Appeal in HKSAR v Hung Chan Wa & Anor (2006) 9 HKCFAR 614, because a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances.

5. The applicant then applied for leave to appeal out of time to this Court which was dismissed on 10 June 2010.

6. This is the applicant’s application for leave to appeal to the Court of Final Appeal. The notice of motion was issued on 5 July2010. However, by a summons dated 26 August 2010, the applicant applied for leave to amend the notice of motion by the substitutionof new questions, which are said to be of great general or public importance, and thus ought to be submitted to the Court of FinalAppeal for decision under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

7. There are a total of 12 questions. I will not deal with them individually. They can be separated into three groups.

8. First, questions relating to the decision of the Court of Final Appeal in Hung Chan Wa, and other decisions which have followed Hung Chan Wa, such as Lau Luen Hung Thomas v Insider Dealing Tribunal & Anor HCMP 1017/2008 (unreported, 9 April 2009) and Lau Luen Hung Thomas v Insider Dealing Tribunal and Anor (2009) 12 HKCFAR 955, which are said to have been decided per incuriam.

9. I should mention at this juncture that on 14 September 2010, in Clarence Chang v Commissioner of Police, FAMV 15/2010 (unreported, dated 14 September 2010), the Appeal Committee reaffirmed the decision in Hung Chan Wa.

10. Secondly, whether the provision in O. 53 r. 4 that an application for leave to apply for judicial review shall be made promptly;and in any event, within 3 months from the date when grounds for the application first arose, unless the court considers that thereis good reason for extending the period within which the application shall be made is constitutional. Also whether O. 53 r. 4 whichregulates the time within which an application for leave to appeal to the Court of Appeal is required to be made is constitutional.

11. It is said they are unconstitutional because of the following dictum of Sir Anthony Mason NPJ in Koon Wing Yee v Insider Dealing Tribunal (2008) 11 HKCFAR 170 at 208:

“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 violationas 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 invalidatinga 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.”

12. The third group of questions queried:

“whether the Court has a reluctance to grant remedy … at the expense of many individual’s constitutional right to seek effectiveremedy;”

And whether:

“the Court in effect unjustly and indirectly condone all unlawful acts on the part of the Respondent committed over a period of18 years …”

13. For the reasons given by A Cheung J, with which we are in respectful agreement, the first two groups of questions raised no arguablepoints.

14. The third group appears to be new. With respect, they are untenable.

15. There are no questions of great general or public importance involved in this application. Nor is this a case where leave shouldbe granted on the “or otherwise” basis, so I refuse leave to appeal to the Court of Final Appeal.

Hon Yeung JA:

16. I agree with the reasons of Tang Ag CJHC. I too refuse leave.

Hon Lam J:

17. I agree and have nothing to add.

(Robert Tang)
Ag Chief Judge, High Court
(Wally Yeung)
Justice of Appeal
(M H Lam)
Judge of the Court of First Instance

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

Mr. Newton Chan, SGC & Miss Bethany Choi, Ag. SGC of Department of Justice for the Respondent