HCAL107/2006

HCAL107/2006

由此 A A B [English Translation – 英譯本] B C C HCAL 107/2006 D D IN THE HIGH COURT OF THE E E HONG KONG SPECIAL ADMINISTRATIVE REGION F F G COURT OF FIRST INSTANCE G H CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST H I I NO. 107 OF 2006 J _____________________ J BETWEEN K K L LAY MAN YEE MARY Applicant L M and M N ALICE TAI, OMBUDSMAN Respondent N (OFFICE OF THE OMBUDSMAN, O O HONG KONG) P P ______________________ Q Q R Before: Hon Chu J in Court R S Date of Hearing: 1 February 2007 S T T Date of Judgment: 27 February 2007 U U V V 由此 - 2 - A A B ______________________ B C JUDGMENT C D D ______________________ E E F F 1. In relation to the Ombudsman’s decision on her complaint against G G the Official Receiver, the applicant seeks judicial review and relief. H H I I Factual background J 2. On 8 October 2002, the court made a bankruptcy order upon the J K applicant’s own petition in HCB 13304/2002. K L L M 3. On 1 November 2002, it was resolved at a meeting of creditors that M Mr Fred Li, a solicitor, be appointed as the trustee of the applicant’s assets. N N O O 4. By virtue of section 30A of the Bankruptcy Ordinance, the applicant P P can be discharged from bankruptcy 4 years from the date of the bankruptcy Q Q order. However, on 6 September 2006 the trustee applied to the court for an R R extension of the applicant’s bankruptcy. The application is still pending and S S the applicant is still a bankrupt at the moment. T T U U V V 由此 - 3 - A A B 5. On 27 December 2003, the applicant first wrote to the Official B C Receiver complaining that the trustee was unprofessional and unfair. The C letter set out a total of 12 complaints. The Official Receiver wrote back on 3 D D February 2004. This was followed by further correspondence between the E E applicant and the Official Receiver. F F G G 6. On 2 July 2005, the applicant wrote to the Official Receiver again, H H providing relevant documents and a compact disc which contained an audio I I recording of an interview in connection with her complaints against the trustee. J The Official Receiver wrote back on 2 November the same year, saying that he J K did not intend to invoke section 84 of the Bankruptcy Ordinance to take further K L action on the various allegations that the applicant had made against the trustee. L On 7 November, the applicant wrote to the Officer Receiver expressing her M M dissatisfaction with his decision in the letter of 2 November. N N O O 7. As a matter of fact, since she went bankrupt, the applicant has not P P only written to the Official Receiver’s Office to complain about the trustee, but Q Q has also complained to the trustee direct, with copies of the complaint letters R R sent to the Official Receiver. Two of these complaint letters to the trustee are S dated 26 October 2005 and 29 March 2006 and contain, respectively, 75 and S T 102 allegations of misconduct on the part of the trustee. The applicant has also T U U V V 由此 - 4 - A A B complained to the Law Society about the trustee, but her complaint was not B C entertained on the ground that the matter was not related to legal practice. C D D 8. The applicant wrote to the Ombudsman on 8 November 2005, E E complaining that the Official Receiver had not properly dealt with her F F complaints. The applicant also requested the Ombudsman to confirm that G G complaints concerning bankruptcy cases were within the scope of her duties. H H The Ombudsman replied on 10 November acknowledging receipt of the I I applicant’s complaint. J J K 9. On 14 November, the applicant supplied further information to the K L Ombudsman regarding her complaint, including her correspondence with the L Official Receiver and documentary information/a compact disc of audio M M recording. The applicant further explained her complaint against the Official N N Receiver in the letter. O O P P 10. On 30 November 2005, the Ombudsman wrote to the applicant, Q Q stating that from an administrative point of the view, there was nothing R R improper on the part of the Official Receiver in his follow-up of the applicant’s S complaints against the trustee. The Ombudsman clearly stated in the letter that S T there were no grounds for following up the applicant’s complaint against the T U Official Receiver. U V V 由此 - 5 - A A B 11. The applicant wrote to the Ombudsman on 2 December expressing B C dissatisfaction with the Ombudsman’s refusal to follow up her complaints. C The applicant also wrote to the Chief Executive on 3 December to complain D D about the Ombudsman’s decision. The Ombudsman wrote to the applicant on E E 12 December, informing her that her complaint was being examined afresh. F F The applicant attended an interview with an investigation officer of the Office G G of the Ombudsman on 22 December and also furnished additional documentary H H information. I I J 12. The Ombudsman wrote to the applicant on 12 January 2006, J K explaining to her that the Official Receiver’s decision as to whether the trustee K L had acted in breach of section 84 of the Bankruptcy Ordinance was a L professional decision as opposed to an administrative matter, and hence the M M Ombudsman was unable to follow up the applicant’s complaints in that regard. N N Furthermore, as the materials provided by the applicant revealed no O O maladministration on the part of the Official Receiver, a decision was made in P P November 2005 not to follow up the applicant’s complaint. The Ombudsman Q Q also stated in the letter that as the applicant had written to the Office of the R R Ombudsman again, visited the Office, and insisted that the Office intervene and S conduct an investigation, a decision was made to conduct a preliminary inquiry S T with the Official Receiver’s Office to find out if it had adopted reasonable T U U V V 由此 - 6 - A A B procedures and acted in a timely manner in following up the applicant’s B C complaints. C D D 13. On 2 June 2006, the Ombudsman responded to the applicant in E E respect of her complaint against the Official Receiver’s Office. In the letter, F F the Ombudsman said that having examined all the materials, she formed the G G view that the Official Receiver’s Office had followed up the applicant’s H H complaints against her trustee appropriately within the scope of its functions, I I with no delay or maladministration and that there was no evidence to buttress J the allegation that the Official Receiver’s Office was biased towards the trustee. J K The Ombudsman also notified the applicant of the decision to close the case. K L L 14. On 29 June 2006, the applicant wrote to a number of M M individuals/organizations including the Chief Executive, Chairman of the N N Legislative Council and the Ombudsman, stating that over the past two years O O her complaints against the trustee and the Official Receiver’s Office were not P P entertained. She also criticized the Ombudsman’s decision in the letter. Q Q R R 15. The Ombudsman wrote back to the applicant on 15 August 2006, S disagreeing with her criticism. The final paragraph of the Ombudsman’s letter S T reads: T U U V V 由此 - 7 - A A B We have clearly expressed our position on this matter on 30 November B last year, 12 January and 2 June this year and have nothing further to C C add. If you write to us on this matter again in the future, we shall D D make no reply other than acknowledging receipt of your letters. E E F Application for judicial review F G 16. On 29 September 2006, the applicant sought leave to apply for G judicial review against the Ombudsman’s decision. The court granted leave on H H 16 October 2006. On 26 October 2006, the applicant filed a Notice of I I Originating Motion. J J K K 17. The applicant sought the following relief in the Notice of L L Application for Leave (Form 86A): M M N (1) An order of mandamus requiring the Ombudsman to accept the N O applicant’s complaints and conduct a serious, fair and professional O P inquiry into the Official Receiver. P Q Q (2) An order prohibiting the Ombudsman from using impolite remarks R R and wording in documents and annual reports; and a declaration that S S the Ombudsman shall not act unreasonably towards the applicant. T T U U V V 由此 - 8 - A A B (3) Even if damages are not awarded so that the applicant can fully B C repay outstanding tax in the sum of $70,411, a decision may still be C made to enable the applicant to live a new life and to allow her D D family to start afresh financially, regardless of whether she can be E E discharged from bankruptcy (HCB 13304/2002). F F G G 18. In the Notice of Originating Motion, the applicant added 4 items of H H relief. As I have pointed out in the hearing, the applicant has not obtained I I leave to amend her Form 86A, and the leave to apply for judicial review given J by the court does not cover those additional items of relief and related matters. J K Furthermore, some of the related matters arose after the Ombudsman issued the K L letters dated 2 June and 15 August of the year 2006 and after the applicant made L the present application. Hence, only the 3 items of relief and related matters as M M set out in the Form 86A will be dealt with in the present application for judicial N N review. O O P P The Ombudsman Ordinance (Cap. 397) Q Q 19. The Ombudsman Ordinance governs the establishment, functions R R and powers of the Ombudsman. S S T 20. Section 7(1) of the Ordinance provides as follows: T U U V V 由此 - 9 - A A B (1) The Ombudsman may investigate any action taken by or on B behalf of ― C C (a) an organization set out in Part I of Schedule 1 in the D D exercise of its administrative functions; or E (b) an organization set out in Part II of Schedule 1 in the E exercise of its administrative functions in relation to the Code F F on Access to Information published by the Government, G G in any case where ― H (i) a complaint is made by a person who claims to have H sustained injustice in consequence of maladministration in I I connection with that action; or J J (ii) notwithstanding that no complaint has been made to him, K K he is of the opinion that any person may have sustained L injustice in consequence of maladministration in connection L with that action. M M N N 21. The Official Receiver’s Office is an organization set out in Part I of O O Schedule 1 to the Ordinance. P P Q Q 22. As to the scope of the Ombudsman’s powers of investigation, R section 8 of the Ordinance provides that the Ombudsman shall not undertake R S any investigation that relates to any action set out in Schedule 2. According to S T paragraph 2 of Schedule 2, the Ombudsman shall not undertake any T investigation into actions relating to the following: U U V V 由此 - 10 - A A B B The commencement or conduct of any proceedings, whether civil or C C criminal, before a court of law or tribunal in Hong Kong, including any D D decision whether or not to prosecute any person for an offence. E E F 23. Section 10 of the Ordinance sets out the restrictions on investigation F G of complaints by the Ombudsman. Section 10(1)(e) provides as follows: G H H (1) Notwithstanding the generality of the powers conferred on the I I Ombudsman by this Ordinance, the Ombudsman shall not undertake or J J continue an investigation into a complaint ― K … K (e) if the complaint relates to any action in respect of which the L L complainant has or had ― M M (i) under any Ordinance, a right of appeal or objection, or a N right to apply for a review, on the merits of the case, to the N O Chief Executive, the Chief Executive in Council, any O tribunal constituted by or under any Ordinance, or any P P board or other authority so constituted; or (Amended 25 of Q Q 1998 s. 2) R (ii) a remedy by way of proceedings in a court, other than by R way of judicial review, or in any tribunal constituted by or S S under any Ordinance, T T U U V V 由此 - 11 - A A B unless the Ombudsman is satisfied that in the particular B circumstances it is not reasonable to expect the complainant to C C resort or to have resorted to that right or remedy. D D E E 24. And section 10(2) provides as follows: F F G (2) The Ombudsman may in his discretion decide not to undertake or G continue an investigation into a complaint, if he is of the opinion, H H having regard to all the circumstances of the case, that ― I I (a) the complaint, or a complaint of a substantially similar nature, J has previously been the subject of an investigation as a result of J which the Ombudsman was of the opinion that there had been no K K maladministration; L L (b) the subject matter of the complaint is trivial; M (c) the complaint is frivolous or vexatious or is not made in good M N faith; or N (d) any investigation or further investigation is for any other reason O O unnecessary. P P If the Ombudsman decides not to undertake or continue an investigation Q into a complaint he shall inform the complainant of that decision and of Q his reasons. R R S S 25. As to the determination of the Ombudsman’s authority, section 9 T T provides that: U U V V 由此 - 12 - A A B B In determining whether to undertake, continue or discontinue an C C investigation, the Ombudsman shall, subject to the provisions of this D D Ordinance, act in accordance with his own discretion; and any question E whether a complaint is duly made under this Ordinance shall be E F determined by the Ombudsman. F G G 26. Insofar as they are relevant to the present application, of the H H provisions governing the Ombudsman’s functions and powers on investigation I I can be summarized as follows: J J K K (1) The Ombudsman may only investigate actions taken by the L organizations concerned in the exercise of their administrative L M functions, see Ong Kin Kee Tong v. The Commissioner for M N Administrative Complaints (now known as the Ombudsman) N O [1997] HKLRD 1191. O (2) The Ombudsman has no power to undertake any investigation P P into decisions or conduct to commence proceedings. Q Q R R (3) If the complainant can institute any proceedings other than S S judicial review in a court of law in respect of the subject matter T T U U V V 由此 - 13 - A A B of the complaint, the Ombudsman cannot undertake an B C investigation. C D D (4) Section 7(1) only authorizes the Ombudsman to carry out E E investigations; it does not require the Ombudsman to investigate F F every complaint. By virtue of The Ombudsman Ordinance, G G the Ombudsman has a discretion to determine whether a H H complaint has been properly made in accordance with the I I Ordinance, and to decide whether to undertake, continue or J discontinue an investigation: see also Re Fletcher’s Application J K [1970] 2 All ER 527. K L L (5) The Ombudsman enjoys extensive powers under section 9, M M including a discretion to decide whether or not to undertake an N N investigation and also to define the scope of such investigation: O O see R v. Parliamentary Commissioner for Administration, ex P P parte Dyer [1994] 1 WLR 621, 626E-G. Q Q R R Grounds of application for judicial review S 27. Based on a number of the applicant’s affidavits and the submissions S T she made in the hearing, the grounds that she puts forward for seeking judicial T U review can be summarized as follows: U V V 由此 - 14 - A A B B C (A) The Ombudsman took an inappropriate approach and acted in an C inappropriate manner D D (1) The Ombudsman should not have refused to carry out an E E investigation for the reason that the matter was within the scope F F of professional judgment of the Official Receiver’s Office and G G not an administrative matter. The Ombudsman should have H H determined whether the Official Receiver’s Office had acted I I inappropriately in areas of administration and management J before making its professional judgment. J K (2) The Ombudsman closed the applicant’s case on 2 June 2006, at K L which time the Official Receiver’s Office had not yet responded L to the complaints set out in her letter of 17 March 2006. This M M was an unreasonable act on the part of the Ombudsman, which N N undermined the applicant’s complaints which were still being O O dealt with, and as a result of which the Official Receiver did not P P fully or thoroughly respond to the applicant’s complaints in his Q Q written reply to the applicant dated 22 June 2006. R R (3) In her letter of 30 November 2005, the Ombudsman flatly S refused to carry out an investigation. The Ombudsman had not S T carefully read the complaints before making this decision; T U U V V 由此 - 15 - A A B rather, she had accepted the materials and submissions put B C forward by the Official Receiver’s Office in their entirety. C (4) The Ombudsman’s subsequent follow-up action was unfair. In D D her letter of 2 June 2006, the Ombudsman did not state the E E result of the investigation, which means that she had not carried F F out any investigation and was merely following up the G G complaint. Nor did the Ombudsman clearly state in her letter H H the result of the follow-up work. In the applicant’s view, the I I Ombudsman had simply accepted the materials provided by the J Official Receiver’s Office, spoken for the Official Receiver and J K wholly rejected her complaints. K L L (B) The Ombudsman acted discourteously M M (5) In the letter dated 15 August 2006, the Ombudsman stated that N N “If you write to us on this matter again in the future, we shall O O make no reply other than acknowledging receipt of your P P letters”. This is a statement very discourteous and Q Q discriminatory. Furthermore, in the said letter, the reply R R “cannot simply agree with” to the applicant’s criticism was S derogatory. S T T U U V V 由此 - 16 - A A B (6) The heading of “opinionated complainant” in the Ombudsman’s B C Annual Report 2006 (18th Annual Report, Chapter 4, page 27) is C defamatory of those whose complaints are being rejected. D D (7) On the basis of (5) and (6) above, the Ombudsman had not E E considered those who were affected by her actions. That was F F an unreasonable behaviour which constituted G G maladministration. H H I I (C) Regardless of whether the applicant is allowed to be discharged J from bankruptcy, her own finances as well as her family’s finances J K should start afresh. K L (8) The applicant owed no tax before her bankruptcy, but since she L became bankrupt, her arrears of tax have accrued to $70,411 M M (including penalty in the sum of $15,422). She alleges that N N this was caused by the trustee’s misconduct. Furthermore, as O O she has already been sanctioned with bankruptcy, she should P P not shoulder this huge tax debt. She requests the court to make Q Q a decision on this issue in the present application. R R S 28. The applicant also mentioned other matters in her affidavits dated 26 S T October 2006 and 3 January 2007, including complaints concerning her annual T U accounts on income and expenditure and the trustee’s accounts; as well as the U V V 由此 - 17 - A A B number of complaints and thorough investigations carried out, and schemes B C under which the Ombudsman give awards to government and public C organizations, etc. as mentioned in the Ombudsman’s Annual Reports. The D D applicant sought further relief in the Notice of Originating Motion based on E E these matters. As I have indicated above, these matters and items of relief, F F which I will not set out here, are not within the ambit of the leave for judicial G G review granted by the court. H H I I The applicant’s complaints against the trustee J 29. The present application obviously stems from the applicant’s J K complaints against the trustee. Based on the applicant’s affidavits and the K L exhibits thereto, the applicant’s complaints against the trustee can be L summarized as follows: M M N N (1) The trustee’s assessment of the applicant’s expenditure was O O unreasonable and unfair. The expenses included rates, the P P applicant’s children’s education, tuition and related expenses, and Q Q the applicant’s financial support for her mother and ailing elder R R brother. S (2) After the applicant became bankrupt, her income was unable to S T cover her expenses and she had experienced hardships. The T U trustee did not address or deal with these matters, which included U V V 由此 - 18 - A A B the applicant’s moving expenses, parking fees incurred as a result B C of the trustee’s mishandling, the applicant earning less as a result C of her salary being deducted and reduced, and her incurring tax D D debt because of the imbalance between her income and E E expenditure. F F G G (3) The trustee rejected the applicant’s request for suspension of H H repayments for 4 instalments and for compensation in the sum of I I $9,788. The trustee also failed to mention the applicant’s request J for compensation during the creditors’ meeting to allow the J K creditors to make a decision. K L L (4) The trustee had no regard for the applicant’s privacy, as a result of M M which her neighbours came to know that she had gone bankrupt. N N O O (5) The trustee was professionally negligent. He asked the applicant P P to handle by herself the procedures for transferring the ownership Q Q of her car while she was in no authority to do so. She was R R criticized and publicly insulted by the staff of the Transport S Department as a result. S T T U U V V 由此 - 19 - A A B (6) The trustee and his staff used impolite or inappropriate words B C when interviewing the applicant and repeatedly threatened to C extend the bankruptcy period. D D E E (7) The trustee failed to comply with the Bankruptcy Ordinance as he F F had failed to complete the trustee’s income and expenditure G G accounts at the right time and to submit the same to the Official H H Receiver’s Office and file it with the court. I I J 30. The above complaints lodged by the applicant against the trustee J K were background information provided merely for the understanding of the K L present application. In hearing applications for judicial review, the court is L merely playing a supervisory role; it is exercising neither civil jurisdiction nor M M bankruptcy jurisdiction. Furthermore, as the present application concerns a N N decision made by the Ombudsman, the court need not and should not determine O O the merits or otherwise of the applicant’s various complaints against the trustee. P P For this reason, I will not give details of the applicant’s complaints against the Q Q trustee, nor will I set out the documents, letters and other information in R R connection therewith. S S T The Ombudsman’s decision of 30 November 2005 T U U V V 由此 - 20 - A A B 31. The applicant’s first and third grounds for judicial review relate to B C the Ombudsman’s decision in her letter of 30 November 2005. Although the C Ombudsman stated in the letter that she would not undertake any investigation D D into the applicant’s complaints, subsequently she considered the applicant’s E E complaints afresh and, on 12 January 2006, decided to conduct a preliminary F F inquiry with the Official Receiver’s Office so as to understand whether G G reasonable procedures had been followed in dealing with the applicant’s H H complaints and whether the follow-up work was timely. Section 11A of The I I Ombudsman Ordinance provides that, for the purposes of determining whether J to undertake an investigation, the Ombudsman has the power to conduct such J K preliminary inquiries as she considers appropriate. K L L 32. In other words, the Ombudsman’s decision of 30 November 2005 M M has been replaced by the decision of 12 January 2006. Furthermore, the N N Ombudsman did undertake a preliminary inquiry which included obtaining O O information and explanation from the Official Receiver’s Office. For this P P reason, the court will not proceed with judicial review on the decision of 30 Q Q November 2005, which has already been superseded and nullified, or award any R R relief in respect of that decision. S S T The Ombudsman’s decision of 2 June 2006 T U U V V 由此 - 21 - A A B 33. Part of the applicant’s first ground as well as the second and fourth B C grounds for application concern the Ombudsman’s decision as stated in her C letter of 2 June 2006. The Ombudsman said, having considered all the D D materials, she found that there was no maladministration on the part of the E E Official Receiver’s Office and the follow-up work on the applicant’s complaints F F was not inappropriate. The Ombudsman therefore decided to close the G G applicant’s case. H H I I 34. In considering the applicant’s first ground for application, I find that J we should start with relationship between the Official Receiver and the trustee. J K Despite the fact that the trustee was appointed by a resolution at the creditors’ K L meeting, decisions that he made on matters concerning the applicant’s L bankruptcy were primarily monitored by the debtors’ meeting. Nevertheless, M M the Official Receiver also has the power and obligation to monitor the trustee’s N N acts and decisions under the Bankruptcy Ordinance. In this respect, section 84 O O of the Bankruptcy Ordinance provides that: P P Q Q (1) By virtue of section 84(1), the Official Receiver has the power to R R make a complaint to the court in respect of the trustee’s conduct and S the way he performs his duties. S T (2) By virtue of section 84(2), the Official Receiver can also apply to the T U court to require the trustee to answer his inquiries. U V V 由此 - 22 - A A B B C 35. Therefore, when the Official Receiver received the applicant’s C complaints against the trustee, he had to decide whether to exercise his power D D under section 84. I agree with the Ombudsman that whether or not to make an E E application to the court under section 84 is a professional decision as it involves F F factual and legal considerations. As it was not an act or decision relating to G G administrative functions, the Ombudsman had no power to undertake an H H investigation under section 7(1) of The Ombudsman Ordinance. Furthermore, I I according to section 8 and paragraph 2 of Schedule 2 to the Ordinance, the J Ombudsman cannot undertake an investigation into a decision made by the J K Official Receiver about whether to make an application to the court under K L section 84 of the Bankruptcy Ordinance. L M M 36. As to the applicant’s complaints against the Official Receiver, the N N stand of the Ombudsman was that, from an administrative perspective, she O O could only examine whether the Official Receiver had followed reasonable P P procedures when he handled the complaints and whether he had done it in a Q Q timely manner. Based on the above analysis, the Ombudsman’s demarcation R R on her functions and powers is correct. S S T 37. As to the applicant’s second and fourth grounds for application, the T U Ombudsman explained in her letter of 12 January 2006 that, as the applicant U V V 由此 - 23 - A A B insisted on her complaints, the Office of the Ombudsman would carry out a B C preliminary inquiry into her complaints. It was for helping her to decide C whether to conduct a thorough investigation into the applicant’s complaints that D D the Ombudsman undertook the preliminary inquiry. This was an approach E E allowed by the law to handle complaints. Furthermore, as I have already F F stated, the law does not make it mandatory for the Ombudsman to conduct a G G thorough investigation into each and every complaint. H H I I 38. As to the approach adopted by the Ombudsman to conduct a preliminary J inquiry, she was vested with the power to conduct in the way she deems J K appropriate. The materials pertaining to the present application reveal that the K L Ombudsman had made enquiries with and obtained relevant information from L the Official Receiver’s Office. The applicant had also furnished written M M statements and quite a lot of information to the Office of the Ombudsman. N N After considering the matter, the Ombudsman came to the view that there had O O been no maladministration or bias towards the trustee. P P Q Q 39. In R v Parliamentary Commissioner for Administration ex parte Dyer, R R the English court said that section 5(5) of the Parliamentary Commission Act S 1967 (which is equivalent to section 9 of The Ombudsman Ordinance) and S T section 7(2) of the same Act (which is similar to section 12(3)(6) of The T U Ombudsman Ordinance) conferred upon the Ombudsman a considerable power U V V 由此 - 24 - A A B of discretion and when the Ombudsman exercises her discretion in dealing with B C a complaint, subjective judgment is inevitable. For this reason, it is certainly C difficult to challenge the Ombudsman’s decision in this regard based on the D D legal principle of Wednesbury unreasonableness under the public law. In the E E present case, I find that the above observation also applies to the conclusion and F F decision made by the Ombudsman after the preliminary inquiry. G G H H 40. Furthermore, the Ombudsman also explained in her letter of 2 June 2006 I I about her conclusion that there had been no maladministration on the part of the J Official Receiver’s Office in dealing with the applicant’s complaints: see the J K section captioned “Our Comments” in that letter. K L L 41. In addition, by virtue of section 83 of the Bankruptcy Ordinance, the M M applicant as a bankrupt can make an application to the court if she has been N N aggrieved by the trustee’s acts. In other words, the applicant can seek remedy O O in respect of her complaints against the trustee by way of legal proceedings. In P P the circumstances, pursuant to section 10(1)(e)(ii) of The Ombudsman Q Q Ordinance, the Ombudsman should not conduct a thorough investigation into R R the applicant’s complaints. S S T 42. As to the second ground for application, which contends that the T U Ombudsman acted unreasonably in deciding to close the case when the Official U V V 由此 - 25 - A A B Receiver’s Office had not yet replied to the applicant’s letter of 17 March 2006, B C the complaint that the Ombudsman dealt with was the one made by the C applicant in November 2005. Although the applicant subsequently provided D D further information to the Ombudsman’s Office, the focus in handling the E E complaint was still on the content of the complaints which the applicant had F F already put forward. It was neither obligatory nor necessary for the G G Ombudsman to withhold her decision and wait for the Official Receiver’s H H Office to reply to the applicant’s letters and complaints which were addressed to I I the Official Receiver’s Office after she had filed her complaints with the J Ombudsman. J K K L 43. Based on the above analysis, the Ombudsman’s decision of 2 June 2006 L was neither Wednesbury unreasonable under the public law nor tainted with M M procedural impropriety. The ground for application in relation to this decision N N must also fail. O O P P Letter of the Ombudsman dated 15 August 2006 Q Q 44. The applicant contends that the Ombudsman was discourteous in her R R letter of 15 August 2006 and applies for a restraining order in that connection. S In my view, this ground for application cannot stand for two reasons. First, S T even if the Ombudsman were impolite in her wording, it would not constitute a T U legally recognized ground for application for judicial review, and the court U V V 由此 - 26 - A A B would not exercise its discretion under the public law to impose a restraining B C order or grant any relief. Secondly, the Ombudsman’s statement that she C would only acknowledge receipt of the applicant’s letters in future without D D giving a reply was nothing more than a direct assertion of her stand and should E E not be regarded as discriminatory or grossly discourteous. F F G G The Ombudsman’s Annual Report 2006 H H 45. The applicant also contends that the reference to opinionated I I complainants in the Ombudsman’s Annual Report 2006 was derogatory of J complainants whose complaints had been rejected by the Ombudsman. As I J K have stated before, even if the use of the word “opinionated” were K L inappropriate, it would not constitute a ground for judicial review and the court L would not exercise its discretion to grant any relief. M M N N Maladministration on the part of the Ombudsman O O 46. As to the applicant’s allegation that the Ombudsman’s discourteous P P remarks constituted maladministration, I do not agree that the wording in the Q Q Ombudsman’s letter of 15 August 2006 and the Annual Report 2006 are R R sufficient to show that there was maladministration on the part of the S Ombudsman or constitute a valid ground for granting the relief that the S T applicant is seeking. T U U V V 由此 - 27 - A A B The applicant’s arrears of tax B C 47. As to the applicant’s arrears of tax and the relevant penalty, she C contends that they arose out of the trustee’s misconduct. Details are set out in D D the letters together with attachments that the applicant sent to the trustee, the E E Official Receiver’s Office and the Ombudsman. F F G G 48. In HCB 13304/2002, the applicant has made complaints against the H H trustee in this regard as well as others as grounds of objection to the trustee’s I I application for an extension of her bankruptcy. The bankruptcy court will deal J with this issue of arrears of tax and the applicant’s other complaints against the J K trustee, and other courts should not hear and rule on the same. K L L 49. Furthermore, the court hearing the judicial review application has no M M jurisdiction to decide or declare whether the applicant is liable to repay the N N accrued arrears of tax. O O P P 50. For these reasons, the applicant’s eighth ground for application and the Q Q third item of relief sought do not stand. R R S Conclusion S T 51. For the above reasons and analysis, the applicant’s application for T U judicial review must fail. The application is accordingly dismissed. U V V 由此 - 28 - A A B B C 52. As the applicant is still a bankrupt, I do not intend to make any order as C to costs in the present action. This is a costs order nisi. If neither party D D applies for a variation within 14 days from the date of handing down this E E judgment, the order shall become absolute upon expiry of that period. F F G G H H I I J (Carlye Chu) J K Judge of the Court of First Instance K L High Court L M M Applicant in person, present. N N Mr Peter Lo instructed by Kao, Lee & Yip for the respondent. O O P P Q Q Translated by the Judgment Translation Unit of the Judiciary and approved by R Mr. Edmund Cham, Solicitor. R S S T T U U V V