WONG HO CHING AND ANOTHER v. THE APPEAL TRIBUNAL (BUILDINGS ORDINANCE)

HCAL 1529/2020

[2020] HKCFI 2738

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1529 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of three decisions made by the Appeal Tribunal (Buildings) (“the Tribunal”), namely:

(1)  the Tribunal’s decision dated 4 June 2020 to maintain its earlier decision dated 14 May 2020 on the Applicants’ application (“the Section 6 Application”) for production or disclosure of documents and information by the Building Authority (“BA”);

(2)  the Tribunal’s decision dated 29 June 2020 to reject the Section 6 Application and a further discovery application (“the Further Section 6 Application”) by the Applicants; and

(3)  the Tribunal’s decision dated 9 July 2020 to hold a preliminary hearing on 7 August 2020 (collectively, “the Decisions”).

2.  In the Form 86 dated 21 July 2020, the Applicants also applied for interim relief to restrain the holding of the preliminary hearing.  As it was, the preliminary hearing scheduled for 7 August 2020 was adjourned in view of the Government’s “work from home” policy in response to the COVID-19 situation in Hong Kong.  I am told that the preliminary hearing has now been re-fixed for 3 December 2020.

BACKGROUND FACTS

3.  The Applicants are the registered owners of the premises (“the Premises”) known as Flat 3, 20/F, Block F, Garden Vista, 15-17 On King Street, Sha Tin, New Territories (“the Building”).

4.  In October 2018, the BA received complaints of water seepage from a suspected defective drainage or waste pipe (“the Pipe”) located on the external wall outside the kitchen of the Premises.  The BA carried out external inspection of the Pipe but were unable to gain entry into the Premises to carry out investigation.  The BA’s external consultant, Fujitac Construction & Engineering Consultants Limited (“Fujitac”), who visited the site on, inter alia, 30 October 2018 and 8 November 2018, was also unable to gain entry into the Premises to carry out investigation.

5.  According to the BA, based on the external inspection and investigation carried out by the Building Department (“BD”)’s own staff as well as various photographs and video recording provided by the management office of the Building on or about 3 December 2018 and 7 March 2019 respectively, he came to the view that the Pipe was in a defective condition, and the Applicants were responsible to repair or renew the same.

6.  On 7 March 2019, the BA issued an order (“the Building Order”) pursuant to s 28(3) of the Buildings Ordinance, Cap 123 (“the Ordinance”) requiring the Applicants to “[r]epair/renew all the defective waste pipe(s) at the external wall of kitchen of Flat 3 on 20/F”.

7.  On 27 March 2019, the Applicants filed a notice of appeal with the Secretary to the Tribunal against the Building Order pursuant to s 47 of the Ordinance (“the Appeal”).

8.  In the Statement of Particulars dated 24 April 2019, at §14, the Applicants raised 3 principal grounds of appeal:

(1)  the BA had unlawfully delegated its statutory powers to persons who were not public officers, in that the BA had delegated his powers under the Ordinance to Fujitac to carry out the investigation leading to the issuance of the Building Order;

(2)  the alleged defective drainage or waste pipe complained of by the BA was non-existent; and

(3)  the Applicants had no legal duty to repair the alleged defective drainage or waste pipe which was a “common part or common facility” of the Building.

9.  On 5 August 2019, the BA filed an “Outline of the Respondent’s Representation” and a bundle of relevant documents relating to the Appeal pursuant to s 5 of the Building (Appeal) Regulation, Cap 123L (“the Regulation”).

10.  On 17 October 2019, the Secretary informed the parties that the Chairman of the Tribunal had directed to schedule a half-day preliminary hearing of the Appeal, and asked the parties to indicate their available dates between December 2019 and February 2020 for the hearing.

11.  On 28 October 2019, the Applicants asked the Secretary to confirm whether the proposed hearing was meant to be a “call-over” hearing only.

12.  On 13 November 2019, the Applicants made an application (ie the Section 6 Application) to the Tribunal under s 6 of the Regulation seeking production or disclosure of the following documents and information by the BA:

(1)  all investigation and test reports and photographs relating to the subject case (“Item 1”);

(2)  the names, positions, qualifications and experience in drainage and water leakage investigation of all officers involved in the subject investigation (“Item 2”);

(3)  the contract between the BA and Fujitac (“Item 3”);

(4)  instructions or guidelines issued by the BA to Fujitac (“Item 4”);

(5)  all records relating to the work duties assigned by the BA to Fujitac in relation to the subject case (“Item 5”);

(6)  the BA’s records authorizing Fujitac and its staff to carry out duties under the Ordinance (“Item 6”); and

(7)  the names of Fujitac’s staff who received authorizations referred to in (6) above (“Item 7”).

13.  The purpose of seeking the above documents and information, according to the Applicants, was to prove that the BA had unlawfully delegated its powers under the Ordinance to Fujitac in support of the first ground of appeal.

14.  On 20 November 2019, the Secretary replied to the Applicants’ query referred to in §11 above, stating that, under s 49 of the Ordinance, the Tribunal might, in any case where it considered it appropriate to do so, hold a preliminary meaning to determine whether good cause had been shown for holding a full hearing of an appeal.

15.  On 12 December 2019, the BA responded to the Section 6 Application, stating, inter alia, as follows:

(1)  The application was made outside the time limit under s 6(2)(b) of the Regulation (namely, 14 days beginning on the date that the BA’s representations were served on the Applicants) and, in the absence of any application for an extension of time, the Applicants had no right to make the application.

(2)  Without prejudice to the foregoing -

(a)  With respect to Item 1, the BA had already provided to the Applicants the documents sought in the bundle of documents served on 5 August 2019.

(b)  With respect to Item 2, the names and positions of the BD’s officers involved in the subject investigation were set out in §3 of the BA’s letter dated 12 December 2019.

(c)  With respect to the rest of Item 2 and Items 3 to 7, although Fujitac’s employees had visited the Premises several times, they were unable to gain entry into the Premises.  The BA issued the Building Order without relying on any findings made by Fujitac.  Accordingly, the information or documents requested by the Applicants were irrelevant to the Appeal.

16.  On 8 January 2020, the Applicants responded to the BA’s letter dated 12 December 2019 and maintained that Items 2 to 7 should be disclosed as they were relevant to the complaint that the BA had unlawfully delegated his statutory powers under the Ordinance to persons who were not public officers.

17.  On 23 January 2020, the Secretary asked the BA to clarify:

(1)  whether the BA or its contractors (ie Fujitac) had prepared any investigation reports or test reports in relation to the subject case;

(2)  if so, whether those reports had been provided to the Applicants; and

(3)  if the reports had not been provided to the Applicants, whether the BA objected to the production of those reports to the Applicants.

18.  On 29 April 2020, the BA replied, stating that:

(1)  Both the BA and Fujitac had prepared investigation reports in relation to the subject case.

(2)  The reports prepared by the BA had already been provided to the Applicants in the bundle of documents served by the BA on 5 August 2019, but the reports prepared by Fujitac had not been provided to the Applicants.

(3)  The BA’s position was that the reports prepared by Fujitac were irrelevant to the Appeal.  Nevertheless, to save time and costs, the BA had no objection to producing them to the Applicants should the Tribunal so direct.

19.  On 14 May 2020, the Tribunal made an order (“the 14.5.2020 Order”) directing the BA to produce the investigation and test reports (if any) prepared by the BA and/or Fujitac to the Applicants in relation to the subject case on the ground that the Applicants would require them for the proper preparation of the Appeal.  However, the Tribunal rejected the Applicant’s request in respect of:

(1)  Item (2), noting that the BA had already provided the names of the handling officers of the BD in relation to the subject case; and

(2)  Items (3) to (7), on the ground of irrelevance as, according to the BA, there was no reliance of any findings made by Fujitac when the BA decided to issue the Building Order.

20.  On 26 May 2020, the Applicants made further submissions to the Tribunal (“the Supplemental Submissions”) alleging, inter alia, that the BA has made an untrue statement that he had not relied on the findings of Fujitac’s investigation in issuing the Building Order, and reiterated the request for discovery of the documents under the Section 6 Application.

21.  On 27 May 2020, the BA provided to the Applicants various reports prepared by the BA and Fujitac in relation to the subject case in compliance with the 14.5.2020 Order.

22.  On 4 June 2020, the Tribunal responded to the Applicants’ letter dated 26 May 2020, stating that it had already made a decision on the Section 6 Application, and would not consider the Supplemental Submissions because they should have been made before the 14.5.2020 Order was made.  This order or direction of the Tribunal constitutes the “First Decision” sought to be challenged by the Applicants in their intended application for judicial review.

23.  On 12 June 2020, the Applicants responded to the BA’s letter dated 27 May 2020 and the Tribunal’s letter dated 4 June 2020, alleging (inter alia) that there was no legal basis for the Tribunal not to allow the Applicants to make further submissions, and requesting the Tribunal to reconsider and allow the Supplemental Submissions and applications made after the Tribunal’s letter dated 14 May 2020.  The Applicants further alleged that Mr Chan Wai-ching (the Senior Structural Engineer who signed the Building Order on behalf of the BA) did not act in good faith and made the Building Order out of “bad motive”, and requested the BA to produce 5 further classes of documents (“the Additional Documents”) with a view to proving that the Building Order was issued “for retaliation purpose”.  This request constitutes what has been referred to as the “Further Section 6 Application”.

24.  On 12 June 2020, the Secretary informed the parties that the Chairman of the Tribunal had directed to schedule a half-day preliminary hearing of the Appeal, and asked them to indicate their availability on three specified dates (namely, 5, 6 and 7 August 2020).

25.  On 19 June 2020, the Applicants wrote to the Tribunal stating, inter alia, that it was premature to hold the preliminary hearing before the BA had made “full and frank discovery of all the outstanding documents, in particular those specifically requested in the Appellants’ Replies and Comments filed on 12^th June 2020”.

26.  On 29 June 2020, the Tribunal informed the Applicants that it had considered the Applicants’ further submissions dated 12 June 2020 and 19 June 2020 and had decided to maintain the 14.5.2020 Order.  This order or direction of the Tribunal constitutes the “Second Decision” sought to be challenged by the Applicants in their intended application for judicial review.

27.  On 7 July 2020, the Applicants wrote to the Tribunal maintaining their request for discovery of the Additional Documents by the BA and reiterated that it was premature to hold any preliminary hearing of the Appeal.  The Applicants alleged that the Tribunal, in order to assist the BA in withholding the requested documents from the Applicants, tried to stop them from pursuing their lawful request and attempted to bring an end to the discovery stage by setting down the Appeal for a preliminary hearing.  The Applicants also alleged that the Tribunal had been acting with “bias” in favour of the BA.  The Applicants threatened to apply for judicial review without further notice unless the Tribunal on or before 17 July 2020 ordered the BA to provide all outstanding information/documents to the Applicants and withdrew its decision to hold the preliminary hearing.

28.  On 9 July 2020, the Tribunal directed that the preliminary hearing would be held on 7 August 2020.  This order or direction of the Tribunal constitutes the “Third Decision” sought to be challenged by the Applicants in their intended application for judicial review.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

29.  The Applicants made the present application for leave to apply for judicial review on 21 July 2020.

30.  Although there were some inconsistencies in the Amended Form 86 as regards the number of decisions made by the Tribunal sought to be challenged by the Applicants and the subject matters of those decisions, Mr Chung clarified and confirmed on behalf of the Applicants at the hearing on 23 October 2020 that the present application concerned the 3 decisions set out in §1 above.

31.  Three grounds of judicial review of the Decisions are raised in the Amended Form 86 dated 12 August 2020, namely:

(1)  the Tribunal acted unlawfully under s 6 of the Regulation and s 49 of the Ordinance in making the Decisions;

(2)  the Tribunal failed to give any or any adequate reasons for the Decisions; and

(3)  the Decisions are irrational or Wednesbury unreasonable.

DISCUSSION

(i)  The Applicants have failed to show the relevance of the documents sought

32.  As earlier mentioned, the Applicants made the Section 6 Application with a view to obtaining documentary evidence to prove that the BA had unlawfully delegated its powers under the Ordinance to Fujitac which the Applicants allege led to the issuance of the Building Order. Further, as stated and confirmed by Mr Chung, both in his Skeleton Submissions (§23) and in his oral submissions, “the Further Section 6 Application was not a fresh application, but it was premised on and was part and parcel [of] the Section 6 Application … the Applicants requested the BA to produce documents in order to understand (i) the basis of the Building Order and (ii) the BA’s allegation that [Fujitac’s] findings are not relied upon”.

33.  On the other hand, it is the BA’s position that although Fujitac’s employees did visit the site on several occasions, they were unable to gain entry into the Premises, and the BA did not, as a matter of fact, rely on any findings made by Fujitac in issuing the Building Order.

34.  From the Applicants’ Statement of Particulars dated 24 April 2019 in support of the Appeal, there is, it would appear, no dispute that there is water seepage on the external wall of the Building outside the kitchen of the Premises.  The crucial questions to be determined by the Tribunal in the Appeal are therefore: (i) whether the water seepage is caused by a defective drainage or waste pipe (the existence of which is denied by the Applicants), and (ii) whether it is the Applicant’s legal responsibility to repair or replace the defective drainage or waste pipe (if it exists) to stop the water seepage.  If the answers are “yes”, I am unable to see why it matters whether the BA issued the Building Order based solely upon its own investigation, or relied, wholly or in part, on the findings of any investigation which might have been carried out by his consultant (ie Fujitac).  When this question was raised with Mr Chung at the hearing, he asserted that if the BA had, unlawfully, delegated his powers under the Ordinance to Fujitac and relied on the latter’s findings, the Building Order as issued by the BA would be ultra vires.  Mr Chung was unable, however, to explain why it would be ultra vires the powers of the BA to issue the Building Order if it had acted in reliance upon findings made by its consultant.

35.  There is, in any event, no proper evidential basis for the Applicants to dispute the BA’s position that he did not, as a matter of fact, rely on any findings made by Fujitac in making the Building Order.  As I understand from the submissions of Mr Chung, the Applicants dispute the BA’s stated position because the BA’s reason for not having relied upon Fujitac’s findings (namely, that Fujitac’s employees could not gain access into the Premises) could not be true, having regard to the fact that the BD’s own staff were likewise unable to gain entry into the Premises but the BA nevertheless said that the Building Order was issued based upon (inter alia) the investigation carried out by the BD’s staff.  This argument of the Applicants is based on a false logic.  Whether the BA relied upon the findings made by Fujitac in issuing the Building Order is a matter of fact, and depends on the relevance and cogency of the findings (if any) made by Fujitac.  It was a matter for the BA to decide whether to rely solely on the findings made by the BD’s staff, or to rely also on the findings made by Fujitac when deciding to issue the Building Order.

36.  The Applicants have also suggested that the BA (or his staff) issued the Building Order in bad faith or out of ill-will towards the Applicants, and the documents sought by them are relevant to prove the mala fides of the BA (or his staff).  It is not necessary to set out the details of the Applicant’s allegations or the matters relied upon by them, save to mention that, in my view, the Applicants’ allegations are flimsy and far-fetched.

37.  Overall, the Applicants have failed to show an arguable case that the documents sought by them are relevant for a proper determination of the Appeal.  For this reason, even if the Applicants’ complaints in respect of the Decisions have some technical validity, I consider it to be clear that relief by way of judicial review should not be granted in the court’s exercise of its discretion.  I shall, for the sake of completeness, briefly consider the 3 grounds of judicial review raised by the Applicants in the Amended Form 86.

(ii)  Ground 1: illegality

38.  The Applicants contend that the Tribunal acted unlawfully under s 6 of the Regulation and s 49 of the Ordinance in making the Decisions.

39.  Section 6 of the Regulation, so far as relevant, states as follows:

“(1)  A party to an appeal may, by serving a notice -

(a) request the other party to furnish further particulars on any matter relevant to the appeal; and

(b) request the other party to make available to him for inspection any document which he considers relevant to the appeal and which is in the custody, control or possession of that party or to furnish a copy of any such document.

(2)  A request under subsection (1) may only be made -

(b) by the appellant, within 14 days beginning on the date a copy of the representations is served on him under section 5(b),

or, where appropriate, within the extended period.

(3)  A party of whom a request is made under this section shall, within 14 days beginning on the date the relevant notice is served or within the extended period, as may be appropriate, comply with such request unless the Tribunal is satisfied that the request was unreasonable or that reasonable grounds exist for not complying with it.”

40.  Section 49 of the Ordinance states as follows:

“(1)  The Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause has been shown for holding a full hearing.

(2)  If the Appeal Tribunal determines that good cause has not been shown for holding a full hearing it shall make an order dismissing the appeal but shall otherwise hold a full hearing.”

41.  The Decisions are plainly not “illegal” in the sense that the Tribunal did not have the lawful power or authority to reject the Section 6 or Further Section 6 Applications under s 6 of the Regulation, or direct a preliminary hearing of the Appeal under s 49 of the Ordinance.

42.  In the Amended Form 86, the Applicants contend that the reason given by the Tribunal for the First Decision to maintain the 14.5.2020 Order, namely, that the Applicants’ Supplement Submissions should have been made before the Tribunal made the said order, was “not a lawful reason for rejecting the Section 6 Application under sections 6(1) and 6(3) of the Regulation”.  The Applicants argue that even if this reason was a lawful reason, the Tribunal had not set any deadline for filing further submissions and it was thus unlawful for the Tribunal not to consider the Supplemental Submissions when they were relevant to the determination of the Section 6 Application (see §16 of the Amended Form 86).  The Applicants also argue that the Tribunal should have considered the Supplemental Submissions to re-evaluate the decision on 14 May 2020 because the Applicants had, in the Supplemental Submissions, given substantive reasons why the requested items (ie Items 2 to 7) were relevant to the Appeal (see §17 of the Amended Form 86).

43.  As a matter of procedural history, the Applicants made the Section 6 Application on 13 November 2019, which was responded to by the BA on 12 December 2019.  The Applicant replied to the BA’s submissions on 8 January 2020.  The Tribunal then asked the BA to clarify certain matters on 23 January 2020, and the clarifications were eventually provided on 2 March 2020 (after an extension of time was granted by the Tribunal).  It was, in my view, open to the Tribunal to consider that the process of submissions had been completed and made a ruling on the Section 6 Application on 14 May 2020.

44.  The Applicants then filed the Supplemental Submissions on 26 May 2020 seeking to re-open the matter.  In the Tribunal’s letter dated 4 June 2020 which embodied the First Decision, the Tribunal stated as follows -

“The Tribunal has already made the decision in relation to the Appellant’s discovery application and submissions should be made before the order is made pursuant to the Tribunal’s directions. Therefore, the Appellant’s latest submissions in its letter dated 26 May 2020 will not be considered by the Tribunal.”

45.  It is clear that the Tribunal’s reason for the First Decision was that it had already made its ruling on the Section 6 Application on 14 May 2020, and it was not prepared to re-open the matter and considered the Further Submissions because such submissions should have been made before the ruling.  In my view, the Tribunal was entitled not to entertain the Applicants’ attempt to re-open the matter.  There would otherwise be no finality to the Section 6 application if the Applicants were entitled to keep making further submissions after the application had been rejected by the Tribunal.

46.  In relation to Second Decision, the Applicants argue that the Tribunal failed to consider whether the items requested were relevant to the Appeal, and whether the request was reasonable in the circumstances.  Accordingly, the Tribunal failed to take into account relevant considerations (see §19 of the Amended Form 86).

47.  The following is stated in the Tribunal’s letter dated 29 June 2020 which embodied the Second Decision -

“Having considered the Appellant’s submissions, the Tribunal has decided to maintain its directions order dated 14 May 2020.”

48.  This letter of the Tribunal cannot be considered in isolation, but must be read in the context of the previous letters issued by the Tribunal, including the earlier letter dated 14 May 2020 explaining why it refused the Section 6 Application (in relation to Items 2 to 7) and the letter dated 4 June 2020 refusing the Applicants’ attempt to re-open the 14.5.2020 Order.  Bearing in mind that the Further Section 6 Application was not, as submitted and confirmed by Mr Chung, an independent application, but was part and parcel of the Section 6 Application, it seems to me to be clear that the Tribunal, when it stated that it had decided to “maintain its directions order dated 14 May 2020”, was saying that it refused the Further Section 6 Application for the same reason that it had given for refusing that part of the Section 6 Application relating to Items 2 to 7, namely, the documents sought were not relevant to the Appeal.

49.  Lastly, in relation to the Third Decision to hold a preliminary hearing of the Appeal, the Applicants argue that the Tribunal failed to consider the appropriateness of a preliminary hearing, and contend that it was not yet appropriate to do so in view of the outstanding documents to be provided by the BA, and other matters raised in the Applicants’ submissions dated 19 June 2020 and 7 July 2020 (see §§20 and 21 of the Amended Form 86).  This is effectively a complaint on the “merits” of the Tribunal’s decision to hold the preliminary hearing.  It is, however, trite that in an application for judicial review, the court is only concerned with the legality, rationality and procedural propriety of a decision, not the merits of the decision.

50.  None of the matters complained of by the Applicants under this ground of judicial review goes to the “legality” of the Decisions.  Accordingly, Ground 1 of judicial review must be rejected.

(iii)  Ground 2: reasons challenge

51.  I have already set out and discuss the Tribunal’s reasons for the First and Second Decisions above.

52.  In relation to the Tribunal’s reason for holding a preliminary hearing under the Third Decision, the Tribunal had explained, in the letter to the Applicants dated 20 November 2019, that -

“For each appeal, under section 49 of the Buildings Ordinance [Chapter 123, ‘BO’], the Appeal Tribunal may, in any case where it considers it appropriate to do so, hold a preliminary hearing to determine whether good cause had been shown for holding a full hearing”.

53.  When the Tribunal subsequently decided to hold a preliminary hearing, it must have been obvious to the Applicants that the Tribunal, having rejected the Section 6 and Further Section 6 Applications, did not accept the Applicants’ contention that it was premature to do so, and that the purpose of the hearing was to determine whether good cause had been shown for holding a full hearing of the Appeal.

54.  While the Applicants may disagree with the Tribunal’s reasons for the First, Second and Third Decisions, there is no basis to contend that the Tribunal failed to give any or any adequate reasons for the decisions contrary to the principles of natural justice or procedural fairness as alleged in §22 of the Amended Form 86.

(iv)  Ground 3: rationality

55.  The Applicants’ irrationality challenge is encapsulated in §§26 and 27 of the Amended Form 86, as follows:

“[26]  It is irrational and unreasonable for the Tribunal, having considered the Supplemental Submissions and Further Section 6 Application, to have rejected both applications with no due regard to section 6 of the Regulation. The Tribunal has thereby abused its powers under section 6 of the Regulation to have unlawfully rejected such applications and excluded materials relevant to the Appeal, thus depriving the Applicants’ right to harness relevant materials in the preliminary hearing and/or the substantive Appeal for the Tribunal’s determination.

[27]  It is also irrational and unreasonable for the Tribunal, having the knowledge that both section 6 applications were still pending and Applicants’ objections, to continue to hold a preliminary hearing.  The Tribunal has thereby abused its power under section 49 of the Ordinance to unlawfully [deploy] preliminary hearing as a means to shut out the Applicants’ lawful section 6 applications and to exclude materials that are relevant to the Appeal in the preliminary hearing and/or the substantive Appeal.”

56.  It was open, on the materials before the Tribunal, for it to accept the BA’s explanation that the Building Order made on 7 March 2019 was not based on any findings made by Fujitac, and came to the view that the outstanding documents sought by the Applicants under the Section 6 and Further Section 6 Applications were not relevant to the Appeal, and therefore did not have to be disclosed by the BA.  The Tribunal’s decisions cannot, in my view, be regarded as unreasonable in the Wednesbury sense.

57.  In passing, I should mention that the serious allegation made against the Tribunal in §27 of the Amended Form 86 as quoted above, as well as the allegation that “[t]he preliminary hearing serves as an unlawful means to bring the discovery stage to an end, thereby depriving the Applicants’ right and benefit to have all the relevant information, facts, materials and evidence for well preparation for the said Appeal” (at pages 2-3 of the Amended Form 86), are baseless and without foundation.

(v)  The intended application for judicial review is premature

58.  It is well established that the court would not, generally speaking, entertain an application for judicial review of a decision which is merely “intermediate” or “procedural” in nature, or which does not give rise to any substantive consequence or is not a decision of a “decisive nature”.  The rationale for this principle was explained by the Court of Final Appeal in Financial Secretary v Wong (2003) 6 HKCFAR 476:

(1)  At §14 of the judgment of the Court of Final Appeal, Bokhary PJ stated the following -

“The courts’ judicial review jurisdiction is of a supervisory nature. This extremely important jurisdiction is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers. It should hardly ever be exercised to review decisions that go only to procedure rather than to the end result. I say ‘hardly ever’ rather than ‘never’ because there can be wholly exceptional cases calling for special treatment… If the Tribunal had been properly seised of an application for costs, the High Court’s proper course would have been to leave the Tribunal to proceed to a decision on the end result and then, if the circumstances eventually so warranted, judicially review that end result. Quite apart from anything else, it often happens that the effect of questionable decisions made at an intermediate stage of a process are dissipated or overtaken by subsequent developments and turn out to have little or no impact by the time the final stage is reached.”

(2)  At §§93 to 95 of the judgment of the Court of Final Appeal, Litton PJ stated as follows -

“[93] Turning more specifically to the scope of judicial review, it is, broadly speaking, the means by which judicial control of administrative action is exercised. It is not every decision by a decision maker which is susceptible to review: Were it otherwise the functioning of the executive arm of government and of statutory bodies and tribunals would be ensnared in multiple applications in the courts. As put by the authors of Administrative Law: Wade and Forsyth (8^th ed.) p.600-601:

‘As the law has developed, certiorari and prohibition have become general remedies which may be granted in respect of any decisive exercise of discretion by an authority having public functions ...’

[94] The emphasis here is on the decisive nature of the exercise of power …

[95] As Mason CJ said in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 at 337, an essential quality of a reviewable decision is that it is a substantive determination: Thus

‘the refusal by a decision-maker of an adjournment at an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality.’”

59.  This having been said, the rule is not an inflexible one.  In some circumstances, it may be right for the court to entertain a judicial review of a procedural decision, eg if it carries some “substantive public law consequences” (Li Chiu Wah Joseph v Hong Kong Society of Notaries [2020] HKCFI 1789, at §49 per Alex Lee J), or infringes a person’s right to a fair hearing (Dr Ip Wing Kin v The Medical Council of Hong Kong, HCAL 9/2009, (20 February 2009), at §18 per Poon J, as he then was), or goes to the question of jurisdiction to make the decision (as in Building Authority v Appeal Tribunal (Buildings) [2016] 1 HKLRD 1381).

60.  In the present case, the Decisions sought to be challenged by the Applicants are all procedural or intermediate in nature.  The Tribunal has not yet decided whether good cause has been shown for holding a full hearing of the Appeal, still less whether the Appeal should be allowed or dismissed.  The Decisions do not give rise to any substantive consequence.  In the event that the Tribunal should ultimately dismiss the Appeal, it would still be open to the Applicants to challenge the final decision of the Tribunal by way of judicial review on grounds which may include the complaints raised in the present application (assuming that they have merits).  As earlier noted, I am in any event not satisfied that the documents sought by the Applicants are relevant for a proper determination of the Appeal.  There are no exceptional circumstances in the present case which would justify the court entertaining an application for judicial review of the Decisions at this stage.

61.  In all, the intended application for judicial review is not reasonably arguable, and has no realistic prospect of success.

DISPOSITION

62.  For the foregoing reasons, the application for leave to apply for judicial review is dismissed.

63.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider the Applicants should pay the costs of the BA in this case, because (i) the application clearly lacks merits, (ii) the court directed an inter-partes hearing of the leave application in view of the Applicants’ express request for an oral hearing if leave to apply for judicial review was not granted on paper[1], and the serious allegation of bias raised by the Applicants against the Tribunal, which allegation upon consideration of the materials now before the court I regard as being entirely without substance or foundation, and (iii) the BA has provided substantial and helpful assistance to the court in relation to the leave application.  I therefore make an order that the Applicants shall pay the BA’s costs of these proceedings, including the costs of the hearing on 23 October 2020, to be taxed if not agreed.