尹照華 v. DIRECTOR OF AGRICULTURE, FISHERIES AND CONSERVATION

HCMP 1085/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1085 OF 2015

________________________

________________________

________________________

J U D G M E N T

________________________

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

1. In view of parallel proceedings on foot, this court directs consideration be given as to whether these proceedings should be stayed pending the outcome of the other set of proceedings.

2. The issue in both sets of proceedings are about the correction interpretation of section 14(1)(a) of the Fisheries Protection Ordinance Cap 171.  There are conflicting decisions by differently constituted Administrative Appeals Board in that regard: see decision of the Board in Administrative Appeal 44/2013, 11.7.2014 and the subsequent decision in Administrative Appeal 32 and 33/2014, 16.9.2014.  In the wake of those conflicting decisions, there is a third Administrative Appeal, viz 35/2014, in which the same issue arose. 

3. The two sets of legal proceedings are:

(a) HCAL 165/ 2014 in which the Director of Agriculture, Fisheries and Conservation [“the Director”] applies for judicial review against the decision in Administrative Appeal 32 and 33/2014.  Leave was granted by Au-Yeung J on 10 February 2015.  We are told that substantive preparation had been done in that set of proceedings and, but for the other proceedings, a date can be fixed for the substantive hearing; and

(b) HCMP 1085/2015, which was originally commenced as CACV 80/2015 on 15 April 2015 which is a Case Stated by the Board in Administrative Appeal 35/2014 pursuant to section 24(1) of the Administrative Appeals Board Ordinance.  The Director is the respondent in this set of proceedings and by a letter of 13 May 2015, the Department of Justice representing the Director sought leave to adduce evidence on the legislative background.  This triggered the direction of this court for consideration as to whether this set of proceedings should be stayed pending the outcome of HCAL 165/2014. 

4. It is ultimately a matter of case management whether this court should proceed with HCMP 1085/2015 before the resolution of HCAL 165/2014, see Order 1B rule 1(1)(e).  In the exercise of that power, this court must have regard to the underlying objectives in Order 1A Rule 1 and the court’s duty in Order 1A Rule 4.

5. In our judgment, balancing the benefit and disadvantage of different courses involved, and having regard to cost-effectiveness and expeditious disposal of matters and fair deployment of judicial resources, HCMP 1085/2015 should be stayed pending the outcome in HCAL 165/2014.  Not only was that set of proceedings commenced first in time, it is also more advanced in its preparation.  According to Mr Lui (counsel for the Director), it is ready for hearing.  In contrast, HCMP 1085/2015 is only at an early stage.  If one were to proceed with HCMP 1085/2015, the Director’s application to file evidence has to be considered and if granted, further evidence would have to be filed.

6. Though it can be said that a decision by this court in HCMP 1085/2015 would have a binding effect on the Court of First Instance in HCAL 165/2014, it is generally undesirable that this court (being the intermediary appellate court) should determine a point of general importance without the benefit of a lower court decision. 

7. Whilst one may regard the two conflicting decisions by the Board as the first tier decisions, it appears that there are legislative materials which the Director would wish to rely which had not been considered in those decisions.  Hence, the decision in HCAL 165/2014 would provide an opportunity for the same to be properly considered.

8. We have not overlooked that the decision in HCAL 165/2014 cannot bind this court.  However, it would be binding on the Board. Unless there is an appeal against the decision in HCAL 165/2014 (in such unlikely event, the appeal can be listed to be heard together with HCMP 1085/2015), HCMP 1085/2015 can probably be disposed on paper.

9. For these reasons, we shall order a stay of HCMP 1085/2015 pending the determination of HCAL 165/2014.  We also direct the Director to apply for further directions as to the disposal of HCMP 1085/2015 within 28 days of the giving of judgment in HCAL 165/2014.