SUNEVISION HOLDINGS LTD v. HONG KONG SCIENCE AND TECHNOLOGY PARKS CORPORATION

HCAL 1890/2018

[2019] HKCFI 1752

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1890 OF 2018

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D E C I S I O N

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1.  I have before me two interlocutory applications made on behalf of the applicant (“SUNeVision”) in these proceedings, namely: (1) an application for leave to adduce expert evidence on certain specified questions (“the Expert summons”); and (2) an application for leave to rely on a number of affirmations at the substantive hearing of the judicial review (“the Evidence summons”).

Background

2.  The background to these proceedings has been set out in §§2‑14 of my decision dated 9 May 2019 [2019] HKCFI 1253 on SUNeVision’s application to amend its Form 86 (“Amendment Decision”), which, for ease of reference, I quote here:

“ 2.  SUNeVision is a company within a group which has been providing data centre services in Hong Kong.  It operates 5 data centres, including one in Tseung Kwan O. 

3. The respondent, the Hong Kong Science and Technology Parks Corporation (“Corporation”), is a statutory body established by the Hong Kong Science and Technology Parks Corporation Ordinance (Cap 565).  Under s 6(1) of that Ordinance, its purposes are to facilitate the research and development and application of technologies and support the development, transfer and use of new or advanced technologies in Hong Kong, and also to “establish or develop premises” where activities related to the above purposes are or are to be carried out, and “to manage and control the land and other facilities comprised in such premises”.

4. The Corporation operates 3 industrial estates in Hong Kong, in Tai Po, Yuen Long and Tseung Kwan O respectively, on land granted by the Government at a nominal premium.  It is therefore in a position to, and does, grant parts of the industrial estates to specific persons, including data centre operators, at rates much lower than the market rates for equivalent space elsewhere in Hong Kong.  These proceedings concern the industrial estate in Tseung Kwan O (“TKOIE”). 

5. Global Switch Hong Kong Ltd (“Global Switch”) is a company within a group that uses the brand name “Global Switch” which develops and operates data centres in Europe and Asia‑Pacific.  In 2012 Global Switch successfully tendered for, and became the Corporation’s lessee of, Site C of TKOIE.  SUNeVision also tendered through a subsidiary but its bid was unsuccessful.  Global Switch intends to operate a data centre comprising 5 buildings at Site C. Buildings 1 and 2 were completed in December 2017 and currently serve a customer, Daily‑Tech Hong Kong Co Ltd (“Daily‑Tech”).  The other buildings are under construction.

6. A data centre is a building or space within a building used to house information and communication technology equipment and is generally equipped with the necessary infrastructure such as power supply, cooling facilities and security systems.  According to SUNeVision, data centres fall into one of two colocation models: the “wholesale colocation model” and “retail colocation model” (though it should be noted that this description of and distinction between the two models are not accepted by either the Corporation or Global Switch, who consider that it mis‑characterises the data centre industry in Hong Kong).

(1) In the wholesale colocation model, the data centre operator designates specific space within the centre for the use for a customer, and grants control over that space to the customer.  This model is typically preferred by large customers who have the internal resources to manage and maintain their equipment in their own dedicated space.

(2) In the retail colocation model, different customers’ equipment is housed in the same shared space, such in racks or cages, and no customer would have the exclusive use or control of any space in the data centre.  This model generally caters for customers who need only limited space to set up network Point‑of Presence or to house IT equipment.  The data centre operator will also provide “managed services” such as internet connectivity and bandwidth, network monitoring, and system management.  As their “MSP” (managed services provider), the data centre operator requires unrestricted access to the customers’ IT equipment.

7. It is not in dispute that the Corporation has, so far as relevant for present purposes, 2 published policies in respect of its industrial estates, as follows:

(1) The first policy applies to lessees of land in the industrial estates generally (and therefore also to lessees who are data centre operators) and is a policy against subletting or parting with possession.  This policy is reflected in clause B(11)(a) of the Corporation’s standard lease which requires the lessee

‘ not to assign mortgage charge demise underlet or part with possession of the said premises or any part thereof or any interest therein or enter into any agreement so to do nor to permit any other party by way of a licence or otherwise to occupy the said premises or any part thereof.’ (“Lease Restrictions”)

(2) The second policy is the admission policy for data centre operators (“Data Centre Policy”) adopted at the meeting of the Business Development and Admission Committee (“BDAC”) of the Board of the Corporation at its meeting on 9 February 2010.  This has the following elements:

(a) Exclusion possession shall be retained by the grantee.

(b) The provision of managed services shall be the dominant element of the operation in the premises.

(c) Right of access to the premises shall remain within the exclusive control of the grantee at all times.

(d) The approved use for data centre in the lease shall be “to operate a data centre to provide colocation services as well as Internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management and system management”.

8.   On the basis and as a result of the policies, SUNeVision says that it has since 2010 had the legitimate expectation (the “Legitimate Expectation”) that:

(1)  ‘ Grantees who are data centre operators in the Industrial Estates are NOT allowed to sublet or part with possession of the leased premises or to license or allow third parties to occupy part of the premises’.

   4 examples of prohibited acts have been set out in the Form 86: (i) sublet buildings, floors or caged spaces in the leased premises to as third parties; (ii) let the parties have control on who can access the leased premises including by implementing their own security measures; (iii) let the parties station their staff or have office space or set up office in the leased premises; (iv) let third parties provide managed services; and

(2)   the Corporation will enforce the Lease Restrictions and will not tolerate or condone any breach of them.

9.   SUNeVision says that relying on its Legitimate Expectation, it acquired through a subsidiary in 2013 a plot of land in Tseung Kwan O at a full market price of HK$428 million to construct a data centre there which can include subletting or licensing part of the premises to its customers and in January 2018 another plot of land in Tsuen Wan again at full market price for developing a similar data centre. 

10.   SUNeVision says that by reason of events over the past few years, it has become concerned that the Corporation has not been enforcing the Lease Restrictions against what SUNeVision suspects to be breaches thereof.  Six events that took place between September 2011 and January 2018 are then set out in the Form 86 (§§35‑45).  Essentially SUNeVision alleged that several of the Corporation’s lessees in TKOIE had been acting in breach of the Lease Restrictions:

(1)  In January 2018, NTT Com Asia Ltd (“NTT”) offered services to a cloud computing enterprise that amounted to subletting or licensing part of its premises.

(2)  In April 2017, Global Switch entered into an arrangement with Daily Tech and China Telecom Global Ltd that was or was highly likely to be in breach of the Lease Restrictions.

(3)  In late 2012, HKCOLO.NET Ltd (“HKCOLO”) entered into an arrangement with IBM that was or was likely to be contrary to the Lease Restrictions.

(4)  In September 2011, HKCOLO successfully bid for the provision of data centre services to a public authority on terms which suggested HKCOLO would not retain exclusive possession — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.

(5)  In October 2011, HKCOLO successfully bid for the provision of data centre services to a financial institution on terms which suggested HKCOLO would not retain exclusive possession — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.

(6)  In March 2015, NTT won a bid to provide data centre services to a financial institution on terms which suggested the financial institution would be in control of access within the designated space — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.

11. SUNeVision had set out the same events in a pre‑action letter from its solicitors to the Corporation dated 6 April 2018, which stated it had to conclude that there had been a change in policy or a continuous policy of condonation in respect of the Lease Restrictions, and demanded that the Corporation take immediate steps to stop the change in policy or the policy of condonation by publicly reaffirming its relevant policy and taking reasonably effective measures to ensure the discontinuation of all existing breaches of the Lease Restrictions.

12. In addition, the solicitors’ letter stated that SUNeVision was aware that Global Switch and the Corporation were in advanced negotiations for an increase of plot ratio for Global Switch’s site in TKOIE. It was said that if, as a result of a change in policy or a policy of condonation, the Lease Restrictions were no longer taken into account in deciding whether more space should be granted to Global Switch, then SUNeVision would contend that the decision was irrational and in breach of the Corporation’s statutory duties and SUNeVision’s Legitimate Expectation and liable to be challenged under judicial review.

13. The Corporation replied by its solicitors’ letter dated 28 May 2018 (“28 May 2018 Letter”) to the effect that:

(1) There had been no change in the relevant policies and no policy of condonation of breaches.

(2) In the data centre industry

‘ some customers may place the equipment in the data centre to make themselves avail of the services provided by the data centre operators, the latter being the dominant element of the operation of the data centre. Under such model, our client considers that these customers on the industrial estates do not have exclusive possession of the space in the data centre where the equipment is placed; nor are they licensed to occupy the space and has made it clear to all potential applicants accordingly. Such trade practice or to be distinguished from the subletting, licensing and/or sharing of space as a service such as the provision of space by Grantees to their customers for the storage of unpowered equipment, servers or racks for a rental.’

(3) The intended Grantees are required to provide a pro forma draft service agreement between the Grantees and their potential customers, which the Corporation examines to ensure that the Grantees retain exclusive possession and that the arrangements do not amount to subletting, licensing and/or occupation of space as a service.

(4) After the commencement of operation, regular inspections are carried out by the Corporation and any suspected breach of the Lease Restrictions is promptly dealt with.

(5) As regards the specific cases mentioned by SUNeVision:

‘ Based on [the Corporation’s] regular site inspection at the industrial estates, [the Corporation] is unaware of the alleged breach of the Restriction by the Grantees. … [The Corporation] shall continue to carry out regular inspections to the industrial estates to ensure compliance with the Agreement and Lease. If and when our client becomes aware of any irregularities in the industrial estates through the regular site inspection, our client would immediately take steps to investigate into the irregularities, including but not limited to seeking explanations from the Grantees, industrial operators and/or data centre operators. If it is confirmed that a Grantee is in breach of the Agreement and/or the Lease, our client would take appropriate enforcement actions accordingly.’

(6) The Corporation denied that it had acted in contravention of any alleged legitimate expectation of SUNeVision.

14.   The Form 86, dated 10 September 2018, specified the decision in respect of which relief is sought to be:

‘ The decision of [the Corporation] by letter dated 28 May 2018 … from Messrs Wilkinson & Grist not to take immediate steps to rectify the failure or refusal to take reasonable steps to enforce restrictions on leases against subletting, parting with possession and/or sharing of occupation in the Tseung Kwan O Industrial Estate …, the reasons therefor being provided in the 28 May 2018 Letter.’ ”

3.  It is of fundamental importance to note that this judicial review concerns the decision embodied in the 28 May 2018 Letter, which was in turn a response to the letter dated 6 April 2018 of SUNeVision’s solicitors.  These proceedings are for the review of that decision in May 2018, not of the Corporation’s stance upon subsequent developments or new allegations or facts being brought to its attention.

4.  Thus in §§57 and 58 of the Amended Form 86, SUNeVision sets out passages from the 28 May 2018 Letter and identifies, based on its understanding of the contents, the responses it considers objectionable.

5.  The grounds for challenge are then set out in §§60‑93 of the Amended Form 86.  It is worth reminding oneself of the specific grounds for judicial review,[1] which have been summarised in §15 of the Amendment Decision and may be described again as follows:

(1) First, it is said that from the 28 May 2018 Letter, one sees that due to the errors and breaches of public duty by the Corporation particularised in Grounds 2 to 4, the Corporation had not in fact been enforcing the Lease Restrictions in accordance with the law and had therefore breached SUNeVision’s Legitimate Expectation, which led to substantial unfairness to SUNeVision.[2]  It is also said that in approving the pro forma Services Agreement of Global Switch (whose terms are, it is said, inconsistent with the Lease Restrictions and the Policy), the Corporation had misconstrued, misapplied or departed from its own policies.[3]

(2) Secondly, it is said that the Corporation made certain errors of law or misdirected itself in law:

(a) First, insofar as the Corporation treated the question of exclusive possession as a question of discretion or policy or on the basis of a “trade practice”, it had misdirected itself.[4]

(b) Secondly, it was an error of law to think that the Lease Restrictions would not be breached so long as services had been provided, or the data centre operator had the right to “allocate different areas in the granted site for the installation of their customers’ servers or to relocate the same”, or the relationship between the grantee and its customer was governed by terms in the form of the pro forma Services Agreement of Global Switch.[5]

(c) Thirdly, it would be a misdirection insofar as the Corporation assumed that the provision of colocation of services in the data centre industry necessarily required the operator to part with possession.[6] 

(d) Fourthly, the Corporation erred in law in thinking that all breaches of the Lease Restrictions were capable of remedy. Subletting would constitute a fundamental breach incapable of remedy.[7]

(3) Thirdly, it is said that the Corporation misconstrued its own policy and failed to appreciate that the policy was in effect to allow the Grantees to operate a typical retail colocation model but not under a typical wholesale colocation model, and failed to take into consideration the terms and conditions between the Grantees and their customers which conferred right to possession and/or right of occupation.[8] 

(4) Fourthly, it is said that despite SUNeVision had drawn attention to the specific alleged breaches by NTT, Global Switch and HKCOLO, the Corporation failed or refused to take reasonable or necessary steps to inquire into the facts and to take necessary actions.  It is also said that insofar as the Corporation took into account any “trade practice” to be distinguished from subletting, licensing and sharing of space, it took into account an irrelevant consideration.[9]

6.  The focus of the complaints is therefore on the proper understanding of the relevant policies, whether the Corporation took the positions alleged and (if it did) whether those positions were errors of law or misdirections in law, whether the Corporation misconstrued its own policies, and whether, on the basis of the materials before it as at May 2018, the Corporation had failed to take steps to inquire and to take necessary actions.

7.  It is also important to bear in mind that, as acknowledged by counsel for SUNeVision, the present case is not a contest about whether the grantees have in fact breached the terms of their respective leases, but whether the Corporation made the alleged errors of law in applying its policies or misconstrued its own policies.  In fact, none of the grantees referred to was named in the Form 86 as an interested party.  When leave was given, this court directed that Global Switch be served as an interested party since SUNeVision then sought relief in the form of an interim stay of the Corporation’s decision to grant an increase of plot ratio to Global Switch.  As things stand, two of the other grantees mentioned (HKCOLO and NTT) have not been joined or taken any part in these proceedings.

The Expert summons

8.  The Expert summons was issued on 1 April 2019, just before the hearing on 3 April 2019 which was to deal with a number of applications including an application to amend the Form 86 and the Evidence summons.  At that hearing, a further hearing date of 20 June 2019 was fixed for the Expert summons, and the Evidence summons adjourned to the same date.

9.  The expert issues as set out in the Expert summons are as follows:

“ 1. The common practice in the data centre industry regarding colocation including wholesale and retail collocation models.

2. The common understanding in the data centre industry of the term “end‑users” and “intermediaries”.

3. The relevant business models of data centre operators that involve end‑users and non‑end‑users as customers.

4. The services typically provided at data centres or for data centre operations.

5. The typical requirements of customers in the data centre industry under different business models for the use or sharing (including exclusive use) of space within a data centre.”

10.  On 24 April 2019, SUNeVision filed an affirmation in support of the Expert summons exhibiting a copy of a draft expert report of Mr Tam Wing Yiu (“Mr Tam” and the “Draft Report”).  The application therefore is to adduce an expert report in relation to the proposed expert issues and substantially in the form of that draft.

11.  The Corporation opposes the application, submitting that the proposed expert issues are not relevant to the real issues in these proceedings, that expert evidence is in any event unnecessary or not helpful to the court, that the Draft Report purports to adjudicate upon the final issues for the court, that it has not been shown that there is a recognised body of knowledge on data centres’ operation, and that Mr Tam has connections with SUNeVision and does not have expertise concerning data centres within TKOIE.

12.  Global Switch also opposes the Expert summons, on the grounds that the proposed expert evidence is irrelevant to the issues and, even if possibly relevant, unnecessary for the determination of the judicial review, that Mr Tam is not independent and that case management considerations militate against granting the application.

13.  The principles and proper approach regarding the admission of expert evidence have recently been discussed by the Court of Appeal in Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2018] HKCA 408.  There the court set out three conditions for admissibility of expert evidence:

(1) The subject matter of the opinion must fall within an area in which expert evidence may properly be given.  In this connection, the Court of Appeal quoted from the judgment of King CJ in R v Bonython (1984) 38 SASR 45:

“ … This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court.”

(2) The witness must be qualified as an expert to give the evidence of the type in question.

(3) His evidence must be relevant to the issues being litigated.  In this regard the Court of Appeal referred to the observations of Evans-Lombe J in Barings plc v Coopers & Lybrand [2001] PNLR 22 at §45:

“ … Evidence meeting [the first condition] can still be excluded by the Court if the Court takes the view that calling it will not be helpful to the Court in resolving any issue in the case justly. Such evidence will not be helpful where the issue to be decided is … one on which the Court is able to come to a fully informed decision without hearing such evidence.”

14.  The Court of Appeal also emphasised that the giving of expert directions is a matter of case management, and pointed out that after the implementation of the Civil Justice Reform, the courts can take account of the probative value of an expert report in exercising case management power; see Shenzhen Futaihong, at §7.

15.  SUNeVision submitted, by reference to Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & another [2002] 3 HKLRD 507, that if the court is in doubt as to the relevance of proposed expert evidence, it should grant leave for it to be adduced at the trial.  Insofar as this submission is at variance with the approach recommended by the Court of Appeal in Shenzhen Futaihong at §§12 and 40 (as set out below), it is the latter that I should follow:

“ 12. … the court will not give directions for expert evidence to be adduced (carrying with it the incidence of substantial costs being incurred on its preparation and court time spent on the same) simply on the basis that the court cannot rule out a possibility of such evidence being relevant and helpful in the sense as discussed above. If the applicant for expert directions fails to persuade the court on relevance and necessity of such evidence, the application should be dismissed.”

“ 40. … in the absence of concrete evidence from the BYD Parties demonstrating the relevance and necessity of expert evidence to resolve the pleaded issues on those paragraphs, the Judge was entitled to refuse to direct that expert evidence on (ii) to be obtained which would only lead to proliferation of unhelpful expert issues that could lengthen the trial and increase the costs of the litigation.”

16.  Monitoring attempts to introduce expert evidence is not just a power of the court but its duty in exercising its case management functions.  It is particularly important in applications for judicial review for the court to be vigilant.  Expert evidence is unusual in judicial review proceedings which are concerned with public law wrongs, not private law rights.  The court’s supervisory jurisdiction is directed at the legality and rationality of a decision and the process, not its substantive merits.  The expert evidence that an applicant seeks to adduce in such proceedings is ex hypothesi not material that was put before the public authority in reaching the decision under attack.  The nature and limits of judicial review must be borne in mind in assessing whether expert evidence would be relevant, of probative value and needed for the proper resolution of the case.

17.  As stated above, the present case is not about whether or not, based on all the materials one can now possibly find, the grantees have in fact breached the terms of their respective leases, but whether the Corporation made the alleged public law errors.

18.  I shall first deal with the arguments on the substance of the expert issues by examining them in turn, and then deal with the arguments concerning the independence of Mr Tam and case management considerations separately which apply equally to all the issues.

Proposed expert issue 1 – The common practice in the data centre industry regarding colocation including wholesale and retail collocation models

Proposed expert issue 5 – The typical requirements of customers in the data centre industry under different business models for the use or sharing (including exclusive use) of space within a data centre

19.  These two proposed expert issues have been grouped together by SUNeVision in its argument.

20.  In support of its application, SUNeVision has, in an annex to its skeleton argument, juxtaposed various paragraphs in its Amended Form 86 where mention is made of one matter or another and various paragraphs in the evidence of the Corporation and Global Switch against the proposed expert issues.  In my view, it is necessary to bear in mind the real issues in these proceedings and look more closely than simply to see whether there is superficial disagreement on certain assertions.

21.  These are public law proceedings concerning the Corporation’s policies relating to data centres within the TKOIE.  There are, in particular, the Lease Restrictions and the Data Centre Policy, referred to in my Amendment Decision at §7 which has been quoted above.  When I asked counsel for SUNeVision which part of the Lease Restrictions is, in SUNeVision’s submission, not subsumed in the Data Centre Policy, his answer was that the Data Centre Policy only stated that one of the factors the Corporation would take into account was “exclusion possession shall be retained by the grantee”.  Based on the materials I do not understand that to be the Corporation’s approach with regard to the Data Centre Policy, nor is there any complaint in the Amended Form 86 on this basis. 

22.  But leaving that aside, it is important to note for present purposes that neither the Lease Restrictions nor the Data Centre Policy is formulated by reference to the business models of the grantee (whether wholesale, retail or otherwise) or the “level” of customers of the grantee (whether end‑users, non‑end‑users or otherwise).  Instead, the policies are framed in terms of exclusive possession, control over right of access, and the dominance of the provision of managed services.  There is no complaint in these proceedings about how the policies were formulated or expressed.

23.  One of the original five grounds for judicial review has fallen away, leaving four.  The first ground (§§69‑74 of the Amended Form 86) is breach of legitimate expectation, but it is clear from paragraph 73 that the complaint is that, due to the errors and breaches of public duty particularised in the second to the fourth grounds, the Corporation had not been enforcing the Lease Restrictions in accordance with the law.  This ground is therefore to be read with the other three grounds.  Further, like the policies, the Legitimate Expectation, as pleaded, is an expectation that the Corporation will enforce its policies as formulated.

24.  As SUNeVision itself states in the Amended Form 86 (at §§62‑63), in a given situation, whether the grantee parted with exclusive possession in breach of the Lease Restrictions and Data Centre Policy depends, as an important factor, on “the degree of control over the premises and their use retained by the owner” — a question “normally determined by examining the contractual provisions governing the relationship between the parties”.

25.  The question of exclusive possession is one that is familiar to the law, to be resolved by an examination of the arrangements in question.  It is usually not a matter on which expert evidence is required.  I fail to see how any “common practice” in the industry with regard to collocation business models, or any “typical requirements” of customers can be relevant to the question.  In fact it is SUNeVision’s contention that (i) it would be a misdirection in law to think that the question of exclusive possession is to be determined on the basis of some “trade practice”, and (ii) it would be an irrelevant consideration to take into account “trade practice”, which are among the grounds of complaint herein.[10] 

26.  SUNeVision appears to suggest (broadly) that because wholesale customers “typically” require more control over the premises, if a grantee has adopted a “typical” wholesale colocation model and provided space to a wholesale customer, then it is more likely that the grantee has acted in breach of the Lease Restrictions in its own lease with the Corporation or in breach of the Data Centre Policy.  In my view, such reasoning is unhelpful and an unnecessary digression from the real issue.  As stated above, whether there may be a breach is a function of the particular arrangements between a data centre and the customer themselves, not the result of a forced classification of the general operations of a data centre into one of two so‑called “typical” models. 

27.  Nor is the classification determinative of the issue of possession and control.  There is no clear touchstone for the concepts of “wholesale” and “retail”.  As used by SUNeVision, they do not refer only to the position of the grantee’s customer in the supply chain of data centre services, but to a host of features not all of which have any necessary correlation to the degree of control over the premises. 

28.  Furthermore, as SUNeVision recognises by including the word “typically” in the assertions concerned, the implications for control of the premises depend on the specific arrangements.  Thus, for example, the Draft Report states that in the case of the retail model, while typically the data centre operator would have pre-agreed access right to the racks, “it is really subject to individual customers’ requirements and agreement between the operator and the customers”.[11]  As such, the classification into wholesale and retail models is neither necessary nor sufficient for determining the issue of control and possession, and would give rise to arid questions as to whether or not certain arrangement is typical.

29.  It is difficult to see how this taxonomy is really helpful for the purposes of these proceedings when SUNeVision itself recognises that the question of possession is ordinarily approached by an examination of the contractual arrangements.  It may be noted, for example, that while Mr Tam has suggested that wholesale customers typically restrict the data centre operator’s access to their data hall and racks, he also states that wholesale customers typically require these access restrictions to be included as a provision in their contract with the data centre operator.[12] Likewise, access in a retail colocation model is also a matter that depends on the parties’ agreement.[13]  It seems to me that ultimately, irrespective of which of these broad labels one puts on the arrangements, the questions of possession and right of access and control depend on the arrangements rather than the label.

30.  SUNeVision’s own materials show that there is a whole range of possible arrangements.  In the market research report dated June 2017 relied upon by SUNeVision itself in its Amended Form 86,[14] it was stated that the “wholesale and retail distinction continues to blur”, that “[i]n recent years, new data centre options that blur the lines between wholesale and retail have started gaining popularity”, and that there are “hybrid facilities”.  Similarly, while Mr Tam states that data centre colocation typically falls within the two models, he also says that data centre operators may position themselves between these two ends of the spectrum.[15]

31.  Even if there exists something that is “typical” in the industry, there is no necessary reason why the grantees in the industrial estates run by the Corporation, in particular TKOIE, must necessarily follow any typical arrangements elsewhere.  Within TKOIE, they are subject to restrictions and policies that have no general application outside the industrial estates.  The focus in these proceedings should be on the Corporation’s actions or non-actions with respect to what it perceives to have taken place in the data centres in TKOIE.  Evidence on the practice outside has little probative value for the real issues in the case.  This also raises a related question as to whether Mr Tam has sufficient expertise in relation to data centres operating within the Corporation’s industrial estates, having regard to his experience as described in §§50-51 below.

32.  SUNeVision argues that it is not the Corporation’s case that the arrangements of the relevant grantees in TKOIE were atypical.  As I understand the Corporation’s position (and Global Switch’s), however, they contend that it is simply irrelevant and hence unnecessary to assess whether the arrangements were so‑called “typical” or not.

33.  A quick glance at the proposed evidence shows that these digressions are more likely to confuse than to enlighten one’s mind for the purposes of dealing with the real issues in the case.  Thus in addition to the wholesale and retail dichotomy, it is said that whether the grantee’s customer is an “end‑user” may also affect the question of access and control, giving rise to four different permutations: (i) wholesale model where the customers are non‑end‑users; (ii) wholesale model where the customers are end‑users; (iii) retail model where the customers are non‑end‑users; and (iv) retail model where the customers are end‑users. Although it seems to have been suggested that in the retail model, the grantee’s customer typically has no control over the space in question, the Draft Report states that if the customer is not the end‑user, then the data centre operator would typically not have unrestricted access to the customer’s space.[16]

34.  In my view these matters are unnecessary, unreliable and unwarranted proxies for the actual parameters used in the policies as formulated and promulgated.

35.  SUNeVision also alleges that the Corporation’s policies are in effect to allow the grantees to operate under a typical retail collocation model but not under a typical wholesale collocation.[17]  What SUNeVision means by these two so‑called “typical models” has been set out in the Amended Form 86.[18] Whether the policies draw such a distinction is a matter of construction for the court, and not one to which the proposed expert evidence is really relevant.

36.  It is submitted for SUNeVision that it was the Corporation which first prayed in aid industry practice.  SUNeVision refers to the following passage in the 28 May 2018 Letter from Wilkinson & Grist:

“  The Restriction is expressly stated in the letter for tender invitations for land applications as well as the offer letter to the intended Grantees issued by our client.  You are well aware of the said practice of our client as you recognized in paragraph 16 of Your Letter that our client specifically drew the attention of the prospective tenderers to the Restriction in the invitation to tender for leasing an individual section in the Tseung Kwan O Industrial Estate (“TKOIE”) dated 1 June 2011.  It is common ground that in the data centre operation industry, some customers may place their equipment in the data centre to make themselves avail of the services provided by the data centre operators, the latter being the dominant element of the operation of the data centre.  Under such model, our client considers that these customers on the industrial estates do not have exclusive possession of the space in the data centre where their equipment is placed; nor are they licensed to occupy the space and has made it clear to all potential applicants accordingly.  Such trade practice ought to be distinguished from the subletting, licensing and/or sharing of space as a service, such as the provision of space by Grantees to their customers for the storage of unpowered equipment, servers or racks for a rental.”

SUNeVision argues that the Corporation has itself relied on “trade practice” as a relevant factor in determining whether in a given case exclusive possession had been passed to the customers.

37.  In my view, this argument takes the sentence out of context.  What was being referred to was the simple fact that there may be customers who place their equipment in a data centre in order to avail themselves of the services provided, with the provision of services being the dominant element.  The Corporation took the view that such a situation was to be distinguished from the subletting or licensing of space for the storage of unpowered equipment.  The sentence, as I read it and as Mr Wong, who appears for the Corporation, has confirmed, is not a suggestion that there is a “trade practice” or “industry custom”, in the proper sense, that alters what is otherwise the meaning of the policies on their true interpretation.  I refer also to SUNeVision’s own contention about reliance on trade practice, as mentioned in §25 above.

38.  Counsel for SUNeVision also relies on a sentence in the first affirmation of Mr Siu (“Siu 1^st”), the Chief Operating Officer of the Corporation, at paragraph 15, which states “it is important to have proper understanding of what a data centre is, in order to appreciate (i) why [the Corporation] formulated its policies in the way it did …”.  This seems to me to refer generally to what data centres do.[19] I do not think that in that or the other parts of the Corporation’s evidence reliance is being placed on any particular business models or any “trade custom” or “trade practice”.

39.  In my view, therefore, even assuming the proposed evidence forms part of a body of knowledge which is sufficiently organized or recognised to be accepted as a reliable body of knowledge, and therefore falls within an area capable of being the subject matter of expert evidence, it is not relevant to the real issues and will not assist in their determination.

Proposed expert issue 2 — The common understanding in the data centre industry of the term “end‑users” and “intermediaries”

Proposed expert issue 3 — The relevant business models of data centre operators that involve end‑users and non‑end‑users as customers

40.  These two proposed expert issues have been grouped together by SUNeVision in its argument.

41.  As for proposed expert issue 2, since Mr Tam states that “intermediaries” is actually not a common term used in the industry,[20] that part falls away.  As for “end‑users”, it seems to me to be an ordinary phrase whose meaning is plain.  According to the Draft Report, an end‑user is a customer of the data centre operator who utilises space or racks rented from the data centre operator for the customer’s own use, whereas a non‑end‑user does not use space or racks itself but lets others use them.  Such meaning of “end‑users”does not appear to be in dispute.  There is no basis for adducing expert evidence.

42.  The proposed expert issue 3 is supposed to deal with different business models of data centre operators again, this time with reference to whether the customers are end‑users or non‑end‑users.  The short answer to this is that, as I have already explained in my Amendment Decision (see §§48‑49), the policies as promulgated are not framed in terms of or with reference to the nature or “level” of the customers of the grantee and, in particular, whether or not such customers are end‑users. A previous internal position that took into account whether or not the customers were end‑users was expressly not adopted or promulgated as part of the policies (as shown in the paper for the 9 February 2010 BDAC meeting).  On that basis it seems to me quite unnecessary to have expert evidence on the proposed expert issue 3.

43.  In any event, ultimately the basic objection is the same as in the case of the proposed expert issues 1 and 5 above.  Whether there is a breach of the policies depends on the parameters set out in the policies themselves, such as exclusive possession, which in turn depend on an examination of the arrangements.  It is not only unnecessary to force the arrangements into a binary classification of the customers, but also unhelpful, because the Draft Report itself describes the features as what one would “typically” find.  I refer to my reasoning in relation to the proposed expert issues 2 and 3 above.

44.  Accordingly, I consider that the proposed expert evidence, even if within a recognised expert area, is not relevant or of probative value.

Proposed expert issue 4— The services typically provided at data centres or for data centre operations

45.  As formulated, proposed expert issue 4 is quite unnecessary.  The parties have in their affirmations referred to the range of services that may be provided at data centres in general, on which there is little disagreement.  There is no need for expert evidence to supply such information.

46.  In his argument, Mr Yu SC, who appeared for SUNeVision, submitted that there is disagreement as to what “managed services” are, and drew a comparison with the technical memorandum and the environmental impact assessment study brief in Shiu Wing Steel Ltd v Director of Environmental Protection & Airport Authority (No 2) (2006) 9 HKCFAR 478, §23. Reference was also made to Shaw v Director of Public Prosecutions [1962] AC 220 where it was held, on a charge of, inter alia, corrupting public morals and publishing an obscene article, that evidence given by prostitutes as to the special meaning of abbreviations and phrases used in the booklet in question was admissible.

47.  This is not what proposed expert issue 4 suggests but, more importantly, on the question of “managed services”, the Data Centre Policy itself contains a definition or description. As stated in §9(2) of the Amended Form 86, the relevant part of the policy was that

“ the provision of managed services including Internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management, system management and the like shall be the dominant element of the operation in the premises, and the grantee should be the one who undertakes the provision of managed services in the premises.”

48.  Mr Yu submits that this is an inclusive definition.  So it is.  But SUNeVision has not pointed to any additional aspects which are not covered by the definition and require expert evidence to supplement, or any part of the definition whose meaning is technical and unclear and requires expert evidence to elucidate.  SUNeVision has not explained how the expert evidence is supposed to assist in light of the definition. 

49.  The deficiency is highlighted by the contents of the Draft Report.  There Mr Tam does not engage with the definition in the policy at all.  Instead, he has devised the term “Basic Services” to cover power, cooling, fire protection and security system services, which he says are the basic infrastructural services that every data centre provides to its customers.[21] He spends many paragraphs discussing what services a data centre operator would “typically” provide under the wholesale and retail colocation models respectively.  He supplies his own understanding of what are called by the industry “managed services”, without referring to the definition in the policy,[22] and does not deal with the inclusion of “managed and outsourcing services on facilities, data centre management … and the like” in that definition.  He purports to review the arrangements that Global Switch may have with its customers and to conclude that they do not have the provision of managed services as the dominant element.[23]  It seems to me that the Draft Report, as formulated in relation to this proposed expert issue, is not relevant, not of probative value, even goes beyond the issue as proposed and purports to opine on ultimate questions.

Connections of expert

50.  Mr Tam joined iAdvantage Ltd in 1999, was promoted to the post of Director and Chief Operating Officer in 2000, Managing Director in 2004 and Chief Executive Officer in 2006, and left in 2007.  iAdvantage Ltd is and was at all material times a wholly owned subsidiary of SUNeVision, and appears to have been the group’s operating arm for its “core data centre business”.

51.  From 2011 to March 2019, Mr Tam was Managing Director of Equinix Hong Kong Ltd, a data centre firm which had apparently taken a 10‑year (from 2017) lease of an entire block from iAdvantage Ltd’s Tseung Kwan O data centre, which seems to be the data centre complex of SUNeVision’s group referred to in the Amended Form 86.[24]  He was therefore until a few months ago the management head of a firm which could be said, broadly, to be a competitor of the Corporation’s grantees in TKOIE such as HKCOLO, Global Switch and NTT.  Equinix would presumably be paying market rent to iAdvantage Ltd and as such has a similar interest in supporting the allegation of distortion of competition made by SUNeVision in these proceedings.

52.  As submitted by Mr Man SC on behalf of Global Switch, such connections on the part of the expert are not in themselves an absolute bar to admissibility of his opinion evidence: Tang Ping Choi & Another v Secretary for Transport [2004] 2 HKLRD 284, §§14-16; Helm Hong Kong Ltd v Au Tat Kei Decky (unrep, HCA 1517/2006, 4 June 2010), §§13‑14.  It is, however, a matter that, in this case, significantly detracts from the weight that can safely be put on any part of the evidence that is contentious, and ultimately from its probative value and usefulness.

Case management considerations

53.  On behalf of Global Switch Mr Man also emphasised its concerns about the lateness of SUNeVision’s application for leave to adduce expert evidence (after having received the Corporation’s and Global Switch’s affirmation evidence by 20 December 2018) and the potential impact on the substantive hearing fixed for December this year.  In the light of my views expressed above, it is not necessary to rely on these further matters.

The Evidence summons

54.  By the Evidence summons, SUNeVision applies for leave to rely on five affirmations at the substantive hearing, namely:

(1)   the 1^st affirmation of Martin Chan (Chan 1^st);

(2)   the 2^nd affirmation of Martin Chan (Chan 2^nd);

(3)   the 3^rd affirmation of Martin Chan (Chan 3^rd);

(4)   the 2^nd affidavit of Raymond Tong (Tong 2^nd); and

(5)   the 3^rd affidavit of Raymond Tong (Tong 3^rd).

55.  Since the proposed amendments of the Form 86 relating to the grant of increased plot ratio to Global Switch were disallowed, SUNeVision has confirmed that it does not seek leave to rely on those parts of the affirmations in question that relate to that matter.

56.  The Corporation primarily opposes the application in relation to Chan 3^rd and Tong 3^rd.  Global Switch opposes the application in relation to a number of specified paragraphs in Chan 2^nd, Chan 3^rd, Tong 2^nd and Tong 3^rd.

57.  RHC Order 53 rule 6(4) provides for the filing of affidavits by a respondent after leave to apply for judicial review has been given, but does not confer on the applicant the right to file any further affidavit.  Practice Direction SL3 stipulates, at §15, that Order 53 does not envisage excessive use of affidavits but recognises (as does Order 53 rule 6(3)) that the court has power to allow the use of further affidavits by the applicant at the substantive hearing.  There needs to be justification for having such further evidence, beyond the mere fact that the applicant still disagrees with the respondent and disagrees with the respondent’s evidence.  This procedural structure is not surprising, as judicial review is generally concerned with the legality of administrative decisions and the decision‑making process, rather than the merits of any underlying dispute, and having regard to the complementary duty of candour placed on the respondent “to make full and fair disclosure of the decision‑making process, laying before the court all the relevant facts and reasoning underlying the decision challenged”.[25]  Under this regime, as Godfrey J said in Shun Fat Container Service Co Ltd & Others v Commissioner for Transport [1989] 2 HKC 301, 310:

“ And applicants for a judicial review should bear in mind that, except in most unusual circumstances and only by the leave of a judge, the respondent’s evidence is the end of the evidence. The idea that evidence on a judicial review can be allowed to proliferate by affirmations and affidavits winging their way from one side to the other until the date of the hearing is one of which all applicants and respondents ought now, and finally, to be disabused.”

58.  As I have emphasised at the beginning of this decision, the application for judicial review in the present case is directed at the 28 May 2018 Letter, which was a response to SUNeVision’s complaint dated 6 April 2018.  The focus of these proceedings is on that Decision, examined in the light of what was before the Corporation, with reference to the specific grounds of challenge set out in the Amended Form 86.  What SUNeVision has sought to do, in many instances in the affirmations in question, is to put forward further matters or explanations, not mentioned in the original complaint of 6 April 2018 or even in the Form 86, which it however regards as indicative of the grantees’ breaches of lease, and to argue that there have been breaches.  Whether or not they may perhaps be ammunition for a further complaint by SUNeVision and the subject matter of a further decision by the Corporation, I need not inquire, but they are prima facie irrelevant to these proceedings. Quite apart from the fact that these are not proceedings to determine whether or not there have in fact been breaches of lease by the grantees, it would be to usurp the function of the Corporation for such matters to be canvassed for the first time in these proceedings, and to confuse the supervisory jurisdiction of the court in judicial review with that of an appellate tribunal on the merits with power to admit new evidence.  It was on the basis of these principles that in my Amendment Decision at §§52‑53, I refused to allow certain additions to the Form 86 with reference to such new matters.  There was no attempt to appeal against that part of my decision.

59.  Counsel for SUNeVision invited the court to take the approach of letting everything go in, on the basis that at the substantive hearing the parties would focus only on what is germane to the real issues.  I decline this invitation.  It would lead to the wastage not only of legal costs but also of the time and energy of public officials, and also of the court’s resources in the substantive hearing, and would be contrary to proper case management in the circumstances of these proceedings.  It is for an applicant to justify the unusual course of having further affidavit evidence after the respondent’s evidence.

60.  It is in my view especially important in the present kind of case, which involves a decision not to take action following a complaint, to draw a firm line, owing to the nature of judicial review which I have already emphasised above.  As has been famously said by Litton PJ in Lau Kong Yung (an infant suing by his father and next friend Lau Yi To) & Others v Director of Immigration (1999) 2 HKCFAR 300 at 340G, Order 53 rule 3 should not be allowed to become “the portals to a playground of infinite possibilities where the administrators could then be made to leap through more and more hoops of fire”.

61.  It needs to be emphasised that an applicant is not entitled to file further evidence simply because he disagrees with the respondent’s evidence.  The applicant has to have regard to the issues arising from the grounds of judicial review advanced to justify the need to file further evidence.  It is not sufficient simply to refer to apparent disagreements on the existing evidence.

62.  With the above in mind I turn to consider the five affirmations or affidavits in question.

Chan 1^st

63.  This is an affirmation filed by SUNeVision in support of its summons dated 4 February 2019 for an interim injunction relating to the grant of additional plot ratio. Everything in it except paragraph 35 has fallen away.  Paragraph 35 sets out three documents which SUNeVision proposed to plead in its Amended Form 86 at paragraph 37B(1)‑(3).  Because, inter alia, they all post‑date the Corporation’s Decision which is the subject matter of these proceedings, leave to add these matters to the Form 86 was refused: see the Amendment Decision at §§52 & 56. Accordingly, Chan 1^st should be excluded in its entirety.

Tong 2^nd

64.  This affirmation was filed in support of SUNeVision’s summons dated 29 October 2018 for an interim stay in relation to the increase of plot ratio.  Paragraphs 2 to 10 and 18, which concern solely the stay application, have fallen away.  Paragraphs 11 and 12 which provide information about land prices may be allowed in as a supplement.  Paragraphs 13 to 17 concern a newspaper clipping (Ming Pao Daily) dated 18 November 2018.  It post‑dates the Decision and is not said to have been available to the Corporation for its decision‑making process, and should as such be excluded.

Chan 2^nd

65.  This affirmation, with 59 paragraphs, was filed in support of, inter alia, SUNeVision’s 1^st draft amended Form 86 and its application for interim injunction in relation to the increase of plot ratio.  The parts that are now sought to be relied upon by SUNeVision are: paragraphs 15‑17, 19‑21, 22-30, 32-43, 45-47, 48-55.

66.  Paragraphs 15‑17: Paragraphs 15 and 16 regurgitate parts of the BDAC paper for February 2010 and the minutes for an earlier BDAC meeting held in July 2009.  I have explained in the Amendment Decision at §§46‑49 why the amendments relating to the BDAC paper for February 2010 were not allowed.  The views in the earlier minutes and in the quoted parts of the BDAC paper relied on by SUNeVision had been superseded by the policies adopted and promulgated.  In any event paragraphs 15‑17 seem to make forensic argument.  They are in the nature of submissions rather than facts.  They should be excluded.

67.  Paragraphs 19‑21: Paragraphs 19 and 20 are not opposed and are allowed.  I consider that paragraph 21 which on a subsequent article in Ming Pao Daily referred to in §64 above should not be included.

68.  Paragraphs 22‑30: There is no opposition to paragraphs 22‑28.  As for paragraph 29, it follows on from the preceding paragraphs.  I consider that save as to the last sentence which is based on an SCMP article dated 20 July 2018 which post‑dates the Decision, it may be allowed in. Paragraph 30 seems to me simply to make a comment on an existing document and should not be allowed.

69.  Paragraphs 32‑42: These paragraphs concern certain agreements (the Agreement for Services and the Services Agreement involving Global Switch and Daily‑Tech) which it would appear were not before the Corporation at the time of the Decision.  The amendment to the Form 86 to mention those agreements was allowed on a very limited basis, to show that the arrangements complained of were continuing — see §§53‑54 of the Amendment Decision.  On that basis, these paragraphs which seek to impugn the substance of the actual agreements should be excluded.

70.  Paragraphs 45‑47: As a response to Siu 1^st in relation to SUNeVision’s application for land in the TKOIE by way of background, I would allow these paragraphs.

71.  Paragraphs 43 & 48‑55: These paragraphs relate to what SUNeVision has produced subsequent to the Decision to support its allegation that Global Switch had been breaching the terms of its grant, including the Sky News article dated 10 January 2019, Global Switch’s media release dated 3 July 2018, the Jiangsu company’s public disclosure statement dated 15 November 2018, and the current FAQ page from Global Switch’s website, which SUNeVision tried unsuccessfully to include in its Form 86 at §37B: see the Amendment Decision, §52.  For the same reasons, these paragraphs in Chan 2^nd should be excluded.

Tong 3^rd

72.  This affidavit, in 14 pages containing 34 paragraphs, was filed in reply to Siu 1^st and also the second affirmation of Mr Siu, in relation to the substantive judicial review proceedings.

73.  Paragraphs 9‑13 of Tong 3^rd deal with the relationship between HKCOLO and KDDI (ie that KDDI holds 50% shareholding in HKCOLO).  They should be admitted to provide the context for the subsequent paragraphs which I also allow. 

74.  Paragraphs 14‑16 set out the terms of a Services Schedule entered into between KDDI and a customer and §§27‑28 set out certain matters from KDDI’s website.  These are not matters placed before the Corporation at the time of the Decision and should not ordinarily be admitted.  They are, however, part of the allegations of the inadequate enforcement steps taken by the Corporation referred to in the paragraph below and may be included on that basis.

75.  Paragraphs 17‑33 set out the matters based on which it is said that the Corporation’s enforcement measures were insufficient and ineffective, which may be read together with Chan 3^rd §§62‑67. Essentially the allegations are that: (i) the Corporation’s inspection was ineffective as an enforcement measure in that the Corporation would give prior notice to the grantee, which enabled the grantee to make arrangements with its customers in response to circumvent the inspections;[26] (ii) the Corporation’s inspections were just routine and cursory;[27] (iii) the Corporation had failed to check the grantees’ business and operation from public sources;[28] (iv) the Corporation had failed to check that the agreements actually signed by the grantees with their customers strictly follow the approved pro forma services agreements;[29] and (v) accepting the bare assertions of the grantees.[30]

76.  These matters seem to me to fall within the scope of Ground 4 raised in the Amended Form 86, namely, that the Corporation failed to take all reasonable or necessary steps to inquire into the facts and to take necessary actions on the breach.[31]  The fact that the Corporation did not have knowledge of the emails between KDDI and the customers relating to the inspections is not an impediment in this context, because the very complaint is that the Corporation gave advanced notice of its inspections, thus enabling the grantees and their customers to adopt the practice of “on‑the‑run” (走鬼) without the knowledge of the Corporation.

77.  The Corporation argues that the allegation that the enforcement measures are ineffective is at best a complaint of maladministration and not a public law wrong.  As I understand his position, Mr Yu on behalf of SUNeVision accepts that policing and enforcement measures are matters of administration for the Corporation, but it is arguable that where the actions or omissions in question were Wednesbury unreasonable, they render the consequent decision susceptible to judicial review.

78.  The Corporation also argues that there is no allegation in the Amended Form 86 which covers the evidence in question. I accept the matters as summarised above are more particularised than the general allegation in §92 of the Amended Form 86, but I think they fall within that paragraph and are a direct response to the Corporation’s explanation in Siu 1^st §§61‑79 which deals extensively with the enforcement measures.  I appreciate that the Corporation may need to make further response to these matters but it seems to me to be an exaggeration to say that there would have to be a “completely different factual inquiry” from that which the Corporation has already undertaken.

Chan 3^rd

79.  Chan 3^rd was filed on 22 March 2019 partly in reply on the application for leave to amend the Form 86 and partly in reply to the Corporation’s and Global Switch’s affirmations in relation to the judicial review.  It is 54 pages long with 118 paragraphs.  The last three sections (§§108‑117) have fallen away.  The main substantive paragraphs that the present application is concerned with are §§12‑107.

80.  It seems to me many of those paragraphs consist of a roving general commentary on the respondent’s evidence, interspersed with arguments and submissions which have no place in an affirmation, and observations based on Mr Chan’s own experience, and are as such unnecessary and objectionable.

81.  The paragraphs fall into the following groups:

Paras	Broad nature	Whether should be admitted
13-22	Chan speaks of how racks are arranged, the area called “white space”, typical layers of access control in a data centre.  He draws a distinction between “building access” and “room access”.	The Corporation argues that these paragraphs raise a new case concerning the so-called “white space”.  However, SUNeVision did complain to the Corporation and also in the Form 86 about “designated space” or “designated area” in respect of which the grantees are said to have given overriding control to their customers.[32] It seems to me the question of exclusive possession of the premises made available to the customers, or any part thereof, cannot be answered simply by examining the control of access to the building in which the premises are located.  While §79 of the Form 86 refers to degree of control over the “premises”, it does not mean that, if part of the premises is transferred into the customer’s exclusive possession, there would not be a breach by the grantee.  To the extent there is any misunderstanding by the Corporation of SUNeVision’s original complaint and its case in the Form 86, it seems to me that these paragraphs should, exceptionally, be permitted so as to clarify the position and so that the Corporation can respond accordingly.
12, 23-26	Chan speaks of the implications of the wholesale and retail models.	As explained in §22 above, the policies are not formulated with reference to this distinction.  Furthermore, no need has been demonstrated for further affirmation evidence on this matter.
27-34	Chan speaks of the types of services provided by data centre operators.	These paragraphs are allowed as part of the background in response to Siu 1st.
35-40	Chan speaks of Facility Related Services in the context of wholesale and retail models.	These paragraphs are not allowed, being matters of comment on what Chan says happens in the wholesale and retail models which are not the proper focus anyway.
41-44	Chan comments on certain definitions used by Corporation and Global Switch.	These paragraphs are matters of comment and submissions, and not allowed.
45-47	Chan comments on the provision of “subscribed services” to wholesale customers.	These paragraphs are not allowed, being matters of comment on what Chan says happens in the wholesale model which is not the proper focus anyway.
48-52	Chan comments on the Lease Restrictions and the Data Centre Policy.	These paragraphs are not allowed, being simply comments based on the contents of documents.
53-61	Chan speaks of the genesis of the Data Centre Policy.	§53 is a needless regurgitation of certain exhibits to Siu 1st, namely, “PS‑5” to “PS‑12”.  §§54‑61 primarily contain arguments related to the removal of the words “to end‑user” decided at the BDAC meeting, which, for reasons explained above and in the Amendment Decision, was not the real issues.
62-67	Chan complains of the enforcement steps taken by the Corporation.	For the reasons stated below in relation to Tong 3rd, these paragraphs may be included.
68-73	Chan complains of unfair competition caused by the Corporation’s decisions.	§§68, 69, 70 and 73 are simply arguments and rhetorical questions, and not allowed.  §§71‑72 set out certain facts about land prices which supplement the information given in the initial evidence and may be included.
74-76	Chan responds to Siu 1st in relation to SUNeVision’s application for land in the TKOIE.	These paragraphs may be included as an explanation of the matters raised in Siu 1st.
78-81	Chan says the documents submitted by Global Switch to the Corporation in 2012 and the pro forma services agreement show breaches of the Lease Restrictions.	These paragraphs seem to me simply to be submissions and comments on documents and should not be included in the evidence.
82-83	Chan speaks of the differences between the pro forma services agreement and the actual agreements entered into by with Daily‑Tech.	As explained in the Amendment Decision at §53, the Corporation had not seen the actual agreements or made a decision on them.  They are not materials before the Corporation when a Decision under challenge was made.  These paragraphs should be excluded.  In any event they consist of comments on documents.
84-88	Chan speaks on the cooperation model between Global Switch, Daily‑Tech and China Telecom.	See conclusions relating to Chan 3rd §§82‑83, mutatis mutandis for the Cooperation Framework Agreement.
89	Chan comments on the actual agreements between Global Switch and Daily‑Tech.	See conclusions relating to Chan 3rd §§82‑83.
90-93	Chan comments that Global Switch has no unrestricted access to the Daily‑Tech Space.	See conclusions relating to Chan 3rd §§82‑83.
94-99	Chan comments on the services provided by Global Switch.	§95 refers to Chan 2nd §§33‑39 which in turn comment on the actual agreements between Global Switch and Daily‑Tech and which have not been admitted into evidence (see §69 above).  §§96‑99 supply comments and arguments why it is “likely” that Global Switch only provides facility‑related services, which were not before the Corporation at the time of the Decision.  These paragraphs should be excluded.
100	Chan suggests that causes in the actual agreements between Global Switch and Daily‑Tech similar to clauses in typical commercial leases.	See conclusions relating to Chan 3rd §§82‑83.
101-106	Chan speaks of Global Switch’s own admission of subletting.	These paragraphs seem to me simply to be submissions and comments on documents and should not be included in the evidence.
107	Chan compares the agreements between Global Switch and Daily‑Tech and HKCOLO’s breach	This paragraph consists simply of comment on other evidence, and should be excluded.

Conclusion

82.  For the above reasons:

(1)  The Expert summons is dismissed.

(2)  On the Evidence summons, there will be an order that SUNeVision do have leave to rely on the following at the hearing of the application for judicial review:

(a) Tong 2^nd — paragraphs 11 and 12;

(b) Chan 2^nd — paragraphs 19, 20, 22-28, 29 (except the last sentence), 45-47;

(c) Tong 3^rd — the entire affidavit; and

(d) Chan 3^rd — paragraphs 1-11, 13-22, 27-34, 62-67, 71-72, 74-76.

The remainder of the Evidence summons is dismissed.

83.  On a nisi basis:

(1)  SUNeVision is to pay the Corporation and Global Switch the costs of and relating to the Expert summons, with certificate for two counsel, to be taxed if not agreed.

(2)  There will be no order as to costs on the Evidence summons.