CHAN WAH SUN v. THE ATTORNEY GENERAL

IN THE COURT OF APPEAL

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JUDGMENT

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Kempster, J.A.:

1. This is the judgment of the Court.

2. On 26th March 1986 Mr. Chan Wah Sun on his own behalf and also on behalf of a number of other named persons issued an application for leave to apply for a prerogative order to quash determinations of the Governor in Council, alternatively of the Lands Department, in relation to the regrant of certain Crown leases. In substance the applicant and his associates claimed to be entitled to regrants or renewals free of premium by virtue of the provisions of Annex III to the Joint Declaration made by the Governments of the United Kingdom and of the People's Republic of China on the future of Hong Kong.Deputy High Court Judge Downey granted leave on 28th April, now some 5 months ago, following the usual hearing ex parte

3. Originally Monday 19th May was fixed for the substantive, inter partes, hearing of the application for judicial review but that date was vacated at the instance of the Attorney General and no fresh date for hearing has as yet been fixed. In the meanwhile, attention has focused upon an inter partes application filed on behalf of the Attorney General by which it is sought to set aside the Deputy Judge's grant of leave. The hearing of this application was fixed for Monday 7th July but that date too was vacated by a consent order made by Sears J. on 1st of that month

4. Prior to that hearing the Government had withdrawn the determinations impugned and orally intimated the terms of fresh offers it was minded to make to the applicant and to his associates. The applicant had expressed himself unimpressed by Government's fresh proposals but they were nonetheless formally communicated to him and to his associates on the date when the consent order was made

5. The parties consented 'to the order of Sears J. following an undertaking given by the Crown that their fresh offers, which at that stage required acceptance during September, should remain open for acceptance until 1st December next

6. An exchange of telexes on the subject of suitable hearing dates between leading counsel, then in London, instructed on behalf of the applicant and the Attorney General, in Hong Kong, followed. Concern was expressed by solicitors acting for the applicant in case a date later than October might so be agreed.

7. The matter came before Sears J. again on the 29th July. At that hearing the question of dates which were or were not convenient to the Attorney General on the one hand and leading counsel instructed for the applicant on the other were not the major matter of concern or contention. As Mr. Stock, who appears for the Attorney General today, has conceded the attitude of the Crown had altered and it was submitted to the Judge that it would not be appropriate to fix a date for hearing prior to the time at which the applicant and his associates had been required to elect whether or not to accept the fresh offers. Mr. Neoh, who appeared below as he appears before us, for the applicant, for his part candidly conceded that, despite the view provisionally expressed, the applicant was and is concerned retain the luxury of an option to accept the Government's offer until after fate of the Crown's application has been determined.

8. This is a situation which rarely arises in the process of normal litigation. Parties very often make offers the one to the other, without prejudice, which necessarily fall to the ground if not accepted prior to the commencement of proceedings. But the Government's offer is irrevocably open for acceptance until 1st December. Sears J. had to consider this particular date from the point of view of both parties; the applicant being concerned to obtain an early hearing; while at the same time keeping his option to accept the offer open, and the Crown that the Court should not fix a date for the hearing of proceedings which, if the offers were accepted, would be discontinued or of no more than academic concern. So it cannot really be contended on the part of the applicant that the Judge should not have taken this critical date into account. It was, indeed, a matter which he was bound to consider in the exercise of his discretion.

9. It is accepted by all parties that this Court can only interfere with the exercise of judicial discretion if it can be demonstrated that the Judge erred in law or took into account factors which were irrelevant to the matter in hand or failed to take into account matters which were or, to quote from the speech of Lord Diplock in Hadmor Productions v Hamilton ⁽¹⁾ unless

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the judge's decision to grant or refuse "- in that case -" the injunction is so aberrant that it must be set aside upon the ground that no reasonable judge regardful of his duty to act judicially could have reached it."

If then it was proper for the Judge to consider the time when the Government's offers expire, at the instance of both parties; if no error of law is identified, and none has been, and if the Judge took account of other matters such as convenient dates which were put before him, and Mr. Neoh told us that he read the telexes and letters already referred to, and unless it be apparent that the order he made can so be construed as to suggest that he failed to have regard to the principle that in the ordinary event proceedings should be brought on for trial at the earliest reasonable opportunity, as it is not, then we cannot interfere. No one has suggested that the Judge's order was manifestly aberrant.

10. In our opinion the matters which Mr. Neoh has urged upon us with his usual grace are insufficient to allow any interference with the order of Sears J. which must stand. This appeal is dismissed

(1)    [1983] 1 AC 191 at p.220