Hong Kong’s judicial system has become so soft that an opinion expressed by a member of the public can grow into what seems to be an actual court hearing, when it is no such thing. Top legal specialist Henry Litton reviews a recent example.
THE RULE OF LAW in Hong Kong is a structured system. The process is governed by rules. But the judge’s determination handed down on 8 October 2024 in HCAL 1041/2024 deviated so violently from the discipline of law that it is more akin to a fable than a judicial act. Hence the title to this essay.
THE FACTS
Ms Yuen, a young woman, was a student at the CCC Kei Chi Secondary School. Six years after she left school, she took it into her head to bring proceedings against the school. She did this by lodging a Form 86, which is the form prescribed under Order 53 of the High Court Rules for permission to start proceedings for judicial review.
Her grievance was, as she put it (in English translation) “the general requirement of the schools in Hong Kong that female students go to school with their calves exposed in winter”. And she elaborated by saying: “It is hoped that the court will step in and prohibit all schools in Hong Kong that female students are allowed or asked to wear thick tights or long trousers in cold weather.”
Her Form 86 did not say what relief she sought against the school, as Order 53 Rule(2)(iii) required.
Not surprising. There was none known to the law in her application. Her grievance, real or imagined, was simply not justiciable: courts of law do not adjudicate on matters such as the style of school uniforms.
What is more, a school is a school, a private institution, not a public authority such as the police, and was not within the scope of control in public law. In short, this application was a total nonsense, as any first year law student would have seen.
The matter was ex parte; in other words, a matter between the judge and the applicant alone, to see if the school should be vexed to respond to her alleged grievance. The answer was of course No. The judge’s constitutional duty under Order 53 Rule 3(3) was to safeguard the process by dismissing the application in two words : “Application dismissed”. Full stop.
But, alas, that did not happen.
THE ROGUE ELEPHANT
What precisely happened can only be gleaned from the judge’s eight-page decision. Everything happened in the privacy of his chambers; he was sitting alone, dealing with the matter on paper. There never was any hearing as such.
In paragraph 3 the judge said this:
“In the light of that intended challenge, I gave directions for the School and the Education Bureau as Putative Interested Party to file an initial response to the application, following which I indicated I would decide how to deal with the matter.”
“Intended challenge” said the judge. What challenge? There was no act by the school which affected the applicant’s rights or interests capable of being “challenged” in public law.
There was only one proposed respondent in Ms Yuen’s Form 86: the school. How then did the Education Bureau come to be a “Putative Interested Party”? The Education Bureau is a policy bureau responsible for formulating and implementing education policies in Hong Kong, acting under the Secretary for Education. The Secretary would have known nothing about Ms Yuen’ s application. As the judge said:
“The Education Board has not received any complaint from the Applicant in relation to applicable uniform rules of the School” (para 18).
So how did the Bureau come to be a “Putative Interested Party”? “Interested” in what? All this existed only in the judge’s imagination, as if he was writing a fable.
Having set up this imagined scenario, the judge then gave “directions” to the school and the Bureau to file “an initial response” to Ms Yuen’s application.
Wherein lies the judge’s power to give such directions? There were no actual “parties” before him. The judge’s process is not found in the Rules of the High Court, or anywhere else.
In short, the judge’s actions resembled those of a rogue elephant gone amok, trampling into dust the law governing applications for judicial review.
To what ends? The question is as meaningless as seeking an answer from a rogue elephant.
THE TETHERED GOAT
At some stage, the judge’s “direction” to “file an initial response” – together with the papers lodged by Ms Yuen – was sent to the Education Bureau. They would have been totally mystified. They had never expressed any interest in being a party to the proceedings, and here they were in the title of the case “Putative Interested Party”.
They, presumably, sought advice from the Department of Justice. A competent lawyer in the department would immediately have seen that the thing was a total nonsense.
The Secretary for Justice is an independent authority. He is not the lackey of a High Court judge, bound to do his bidding.
But, like a goat tethered to the caprice of a High Court judge, the Education Bureau lodged evidence concerning school girls’ uniforms, and made submissions on “the merits” of the applicant’s case through two members of the Justice Department – as if there was any “merit” in the application to be met.
Plainly, the only proper “initial response” would have been: “The Education Bureau has nothing to say on this application,” reminding the judge that the matter was ex parte between himself and the applicant, as the Rules of the High Court stipulated. It was his responsibility alone to decide whether to grant leave to the applicant or not.
The same applied with regard to the School. And as the judge said (para 29):
“The School also submits that its decisions are not amenable to judicial review, because there is no or no sufficient public element in the implementation of school uniform rules so as to make them amenable to review”.
This was blindingly obvious. So why was the application not dismissed at the outset? Was the judge unable to see this for himself?
It was an exercise in futility to submit “evidence” about school uniforms to the judge, and even greater futility in his chewing over such evidence, page after page.
ADDING FICTION TO FICTION
As mentioned earlier, everything happened on paper, in the privacy of the judge’s chambers. But the Ddecision carried this heading:
“Before Hon Coleman J in Chambers (Open to Public)”
“Open to Public”? This was pure fiction.
Was this a device to get the decision into the law reports, to set a precedent for other judges to follow?
If this were so, it would be an added reason why the Secretary for Justice should actively intervene, to stop this absurdity becoming an orthodoxy.
The Honorable Henry Litton was Permanent Judge of the Court of Final Appeal in Hong Kong from 1997 to 2000.
He has written a number of articles reviewing legal themes in Hong Kong law. To see all of them, click here.
Illustration at the top by fridayeveryday.