SHIU WING STEEL LTD v. DIRECTOR OF ENVIRONMENTAL PROTECTION

FACV No. 28 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

FINAL APPEAL NO. 28 OF 2005 (Civil)

(ON APPEAL FROM CACV No. 350 of 2003)

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R U L I N G

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Mr Justice Ribeiro PJ:

1.  The appeal in this case will be heard in the week commencing 12 June 2006.  It concerns judicial review proceedings in which the Airport Authority of Hong Kong has been joined as an Interested Party. 

2.  The Authority applied by summons dated 13 April 2006 for leave to adduce further evidence at the hearing of the appeal.  That evidence consists of an affirmation said to contain information concerning matters occurring after the first instance hearing in September 2003.  It is said to be relevant to whether the Court should exercise its discretion to grant relief if it should decide that the decisions under review are unlawful.

3.  Yesterday afternoon, the parties submitted a draft order proposed to be made by consent whereby it was agreed that the affirmation in question should be filed, with consequential directions for the filing of evidence in reply and of supplemental printed cases to deal with such evidence. 

4.  It was proposed that the hearing today should be vacated.  However, the application has raised a jurisdictional issue which must be addressed before the application is dealt with.  It is therefore inappropriate for it to be dealt with by a consent summons and I directed that this hearing should take place although without the necessity for attendance by counsel.

5.  The jurisdictional issue arises by virtue of the decision of Ching PJ, sitting as a single permanent judge in Wong Tak Yue v Kung Kwok Wai & Another (1997-98) 1 HKCFAR 44, where an application was also made for leave to adduce further evidence on the hearing of the appeal. 

6.  The relevant power of a single permanent judge is set out in s 46(2) of the Court's statute in the following terms:

“In an ...... appeal, any incidental order or direction, not involving the decision of the ...... appeal, ...... may be made or given at any time by a single permanent judge.”

7.  Ching PJ held that an application for leave to adduce further evidence “involves the decision of the appeal” and therefore falls outside the jurisdiction of the single permanent judge.  His Lordship stated:

“I see no reason to doubt that when an application is made to this Court to adduce further evidence it must be shown, inter alia, that that evidence must have an important influence upon the result of the case although it need not be decisive. Inevitably, therefore, the granting or refusal of leave requires an assessment of the evidence and its impact upon the final result. In my view that means that it involves the decision of the appeal. I therefore hold that I have no jurisdiction to make an order as sought and the application must be dismissed.” (at 45)

8.  If Ching PJ's decision were to be followed, the Airport Authority's application could not be entertained by the single permanent judge.  That was why the Authority initially took out its summons before the Appeal Committee.  However, for reasons I shall explain, I did not consider that course necessary (or, in the present circumstances, necessarily correct) and directed that the matter should be listed before me sitting as a single permanent judge. 

9.  Ching PJ's ruling on the construction of s 46(2) is naturally to be approached with due respect.  But it was given by him as a single permanent judge.  Accordingly, it does not relieve me of the duty, when sitting in the same capacity, of considering the matter afresh where it appears appropriate to do so. 

10.  I am, with the greatest respect, unable to agree with the construction his Lordship placed on the subsection.  In my view, in empowering the single permanent judge to make “any incidental order or direction, not involving the decision of the ...... appeal”, the subsection confers a broad power to make necessary or desirable incidental orders or directions (not confined to orders concerning further evidence) which do not have the effect of deciding the appeal – that function obviously being reserved to the Court itself.  I take the words “not involving the decision of the ...... appeal” to mean “not having the effect of deciding the appeal”.  The decision to permit a further item of evidence to be introduced does not have the effect of deciding the appeal.  All that it decides is the incidental question of whether that piece of evidence (however important it may be) should or should not be allowed in. 

11.  The approach adopted by Ching PJ effectively interprets the phrase “involving the decision of the ...... appeal” as meaning “involving an order or direction which may (or is likely to) have an impact on the ultimate decision of the appeal”.  That is, in my respectful opinion, too wide.  It is therefore my view that the single permanent judge does have jurisdiction to make orders like the orders presently sought.

12.  Looking at the position more broadly, the Court itself obviously has power to allow further evidence to be adduced or to make other incidental orders at the hearing of the appeal.  Similarly, as an adjunct to the powers of the Court exercisable by the Appeal Committee pursuant to s 18 in relation to applications for leave to appeal, the Appeal Committee necessarily has implied power to make incidental orders to ensure the effective exercise of its statutory jurisdiction (see PCCW-HKT Telephone Limited v The Telecommunications Authority (2005) 8 HKCFAR 337, 356-357, 361).  Additionally, an application for an incidental order which comes within s 46(2) may be dealt with by the single permanent judge at any time.

13.  Whether in any particular case the s 46(2) power should be exercised is obviously within the discretion of the single permanent judge. Thus, whether further evidence should be admitted must depend on the nature of that evidence and on issues of procedural fairness viewed in the context of the case as a whole.  The well-known principles in Ladd v Marshall [1954] 1 WLR 1489, may have to be considered.  Where the full implications of the further evidence are not clear or where it is reasonably a matter of controversy whether such evidence should be admitted, the single permanent judge may decline to make the order and to leave the decision to the Court at the hearing.  In such cases, he may consider allowing the evidence to be filed de bene esse. 

14.  In the present case, taking into account the fact that the parties are now agreed that the evidence should be admitted and that the parties have agreed upon procedural directions for answering that evidence and dealing with in supplemental printed cases, I am satisfied that the Court would permit the evidence to be placed before it and accordingly, that it is a proper case for directions to be given along the lines set out in the draft consent summons submitted to the Court.

15.  I therefore direct that:

(1) the Interested Party have leave to file the affirmation of Amin. Abdulrasul Nasser Ebrahim (“the Ebrahim affirmation”) made on 13 April 2006 by 5 May 2006;

(2) the Appellant have leave to file evidence in reply to the Ebrahim affirmation by 17 May 2006;

(3) the Interested Party have leave to file a Supplemental Case, if so advised, addressing the evidence in the Ebrahim affirmation and reply evidence filed on behalf of the Appellant within seven days thereafter;

(4) the Appellant have leave to file a Supplemental Case to address the Respondent's Case, the Interested Party's Case and the Supplemental Case, if any, filed by the Interested Party within 10 days thereafter; and

(5) the costs of the Summons and of today be in the appeal.

16.  I would add that Ms Jenny Fung of the Department of Justice expressed concern as to whether it was necessary to seek liberty to apply to deal with any of the reply evidence filed, drawing attention to the shortness of time available.  In my view, such liberty to apply is not necessary.  Any objections or applications could be entertained in due course at the hearing.