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郭卓堅 v 立法會主席梁君彥And Another

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date10 October 2018
Neutral Citation[2018] HKCA 672
Year2018
Judgement NumberCACV158/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV158/2018 郭卓堅 v. 立法會主席梁君彥AND ANOTHER

CACV 158/2018

[2018] HKCA 672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2018

(ON APPEAL FROM HCAL 751/2018)

_____________________________

BETWEEN
郭卓堅 Applicant
and
立法會主席梁君彥 1st Putative Respondent
保安局禁毒專員余呂杏茜 2nd Putative Respondent

_____________________________

Before: Hon Lam VP, Chu and Poon JJA in Court

Dates of Written Submissions: 5 and 19 July 2018

Date of Judgment: 10 October 2018

________________

J U D G M E N T

________________

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

1. On 8 May 2018, Chow J refused to grant leave to the applicant to apply for judicial review. In the Form 86, the applicant did not particularize his challenge by reference to any specific decisions of the putative respondents. The relief he sought was set out by the judge at paragraph 1 of his Decision at [2018] HKCFI 983:

“ a) a declaration that it is unconstitutional for any Government officers, other than those designated officials who attend the Legislative Council “to sit in on the meetings of the Legislative Council and to speak on behalf of the government” pursuant to Article 62(6) of the Basic Law, to carry out activities freely within the Legislative Council while it is session; and

b) an injunction to restrain Government officers from going to the Legislative Council to monitor the “activities” of members of the Legislative Council, contrary to Section 19 of the Legislative Council (Powers and Privileges) Ordinance, Cap 382 (“the Ordinance”).”

2. By a notice of appeal of 15 May 2018, the applicant appealed against that decision. He also applied by a summons of 31 May 2018 for leave to adduce fresh evidence on appeal.

3. On 17 May 2018, the applicant consented in writing for the appeal to be processed on the papers without any oral hearing. Since then, he retained lawyers to act for him and he confirmed that the appeal can be processed without any oral hearing.

4. Written submissions were lodged by his solicitors on 5 July 2018.

5. Written submissions were also lodged on behalf of the 1st putative respondent on 19 July 2018.

6. The 2nd putative respondent did not lodge any submissions.

7. Regarding the summons of 31 May 2018, the applicant applied to adduce further evidence to address the observations of the judge at [8] and [10] of the Decision:

“ 8. The Applicant has not adduced any evidence in his affirmation filed on 2 May 2018 which can conceivably support the allegation that the conduct of Government officers within the precincts of the Chamber is such as would fall within the prohibited lists of conduct in Section 19(a) to (d) of the [Legislative Council (Powers and Privileges) Ordinance].

…

10. I also do not consider that the Applicant has sufficient standing to make the present application. There are plainly other persons who have a stronger and more direct interest than the Applicant in the matters complained of, eg, the existing members of the Legislative Council, who can apply for judicial review if grounds exist for such application to be made. I see no reason why the Applicant should be allowed to pursue these complaints when those other persons fail, or do not see the need, to do so.”

8. In his 2nd affirmation, the applicant explained that as he had no legal education, he did not realize he had to lodge evidence in those respects at the court below. He also said there were media reports of the acts of the government officials in the Legislative Council and there were councillors who expressed discontent with such acts. He also said he would explain his interest in the matter.

9. Notwithstanding that the summons prepared by the solicitors for the applicant referred to a 3rd affirmation of the applicant, the applicant did not produce a copy of the same for our consideration.

10. An appeal is normally not the occasion for new evidence to be admitted. The established approach is that additional evidence would only be admitted if the test in Ladd v Marshall [1954] 1 WLR 1489 can be satisfied, viz that the evidence

(1) could not have been obtained with reasonable diligence for use at the hearing below;

(2) must be such that, if given, would probably have an important influence on the result of the case, though it need not be decisive; and

(3) must be such as it is apparently credible.

11. The same test is generally applicable in an appeal against refusal of leave to apply for judicial review though the court may relax the rule in exceptional circumstances, see Wong Ho Tong v Director of Lands [2018] HKCA 330.

12. We do not accept the applicant could not have obtained the relevant evidence at the court below if he had exercised reasonable diligence. The fact that he had no legal education cannot be a valid excuse. Condition (1) of Ladd v Marshall, supra, is not satisfied.

13. Further, as discussed in Wong Ho Tong v Director of Lands, supra, the relevance of the new...

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