TANG CHIU MAN AND ANOTHER v. SECRETARY FOR JUSTICE for DIRECTOR OF LANDS

HCAL 916/2021

[2021] HKCFI 3016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 916 OF 2021

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D E C I S I O N

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A.   Introduction

1.  By the Form 86 in these proceedings HCAL 916/2021 (“2^nd JR”), the Applicants seek leave to apply for judicial review so as to challenge a decision dated 21 May 2021 (“May Decision”) made by the Director of Lands (“Director”), the putative respondent.  The May Decision involved the approval of the applicants’ rebuilding application – of New Territories Exempted Houses on certain Lots in Yuen Long – albeit subject to the imposition of 38 conditions.

2.  Prior to the May Decision, the Applicants had already filed an earlier Form 86 in HCAL 68/2021 (“1^st JR”), seeking leave to apply for judicial review relating to the (then) refusal or failure of the Director to have determined the Applicants’ rebuilding application.  Directions have already been given for the filing of evidence in the 1^st JR, and the hearing of the application for leave has been fixed for 23 November 2021.

3.  By summons dated 22 July 2021 (“Summons”), the Applicants seek an order that the hearing for leave to apply for judicial review in the 2^nd JR be heard together with the application for leave in the 1^st JR on 23 November 2021, before the same judge.

4.  The parties agreed that the Summons could be determined on paper, in accordance with a directed timetable of filing submissions. Having considered the submissions, this is my Decision on the Summons.

B.   The Arguments

5.  It is common ground that the Summons raises a matter of case management.  Both sides invite me to exercise a degree of robust management, albeit in different ways.

6.  Mr Andrew Tse, Counsel for the Applicants, submits that the two leave applications should be heard together on 23 November 2021 because of:

(1)  the common background in both the 1^st JR and the 2^nd JR – the parties are the same in both actions, which arise out of a common factual matrix, and the allegations are “highly overlapping”;

(2)  the common issues in both the 1^st JR and the 2^nd JR – the main objection to the grant of leave in both actions is that the subject matter is not amenable to judicial review;

(3)  the fact that consolidation of the two JRs is being expressly sought as part of the relief in the 2^nd JR – in considering whether or not to consolidate the actions, the Court will necessarily go into the details of both actions;

(4)  efficiency of the use of Court resources – the original rebuilding application was submitted back in 2012, so that the Applicants will be relying on matters that occurred in the nine years between 2012 and 2021, and there are few new documents on top of the overlapping documentary exhibits and authorities relied upon;

(5)  time and costs efficiency – because of the overlapping materials and issues, there is no reason why the scheduled hearing on 23 November 2021 cannot accommodate both the 1^st JR and the 2^nd JR; and

(6)  there is no prejudice to the Director as putative respondent – the Director does not object to the leave application for the 2^nd JR being heard on 23 November 2021, albeit he wishes that there should be a condition that the 1^st JR is first dismissed with costs.

7.  Mr Gary Lam, Counsel for the Director as putative respondent (together with Ms Julie Lam, Government Counsel), submits that the correct order to make now is that both the 1^st JR and the 2^nd JR be dismissed right away.  This is on the basis that it is plain and obvious that the subject matter of both actions is not amenable to judicial review. Therefore, dismissal now would be consistent with the introduction of the new PD 26.1 which seeks to enhance the expeditious and efficient disposal of applications for judicial review, and to exercise tighter and closer case management control of a leave application.

8.  Mr Lam also makes the submission that, where the central issue is the amenability issue, the determination of that issue in the 1^st JR will itself be determinative of the issue in the 2^nd JR, so that it is not necessary for the two to be heard together on 23 November 2021.  Indeed, Mr Lam submits, hearing together would only increase the time and costs involved.

9.  Having argued that the 2^nd JR must necessarily render the 1^st JR academic, Mr Lam further submits that the Applicants’ current Summons and the proposal to consolidate demonstrate only the desire to slow down the ‘guillotine’ over the 1^st JR so as to put off the otherwise obvious and immediate costs consequences.  Mr Lam invites the Court to send a clear message that unmeritorious judicial review applications will be dealt with expeditiously, and that costs consequences will be equally expeditious.

10.  In reply, Mr Tse reminds the Court that the agreement for matters to be dealt with on paper was only in relation to the Summons seeking the applications for leave in both the 1^st JR and the 2^nd JR to be heard together on 23 November 2021.  There was no agreement that either leave application should itself be dealt with only on paper, and the arguments advanced by Mr Lam amount to an attempted “hijack” of the Summons.

C.   Dismiss Now, Hear Together, Or Not?

11.  Without (for present purposes) going into the authorities canvassed by Mr Lam in his submissions, there seems to me to be at least considerable force in the points that: (1) the subject matter of the intended challenges are not amenable to judicial review; and (2) the making of the May Decision, and the intended challenge to it in the 2^nd JR, render the previous intended challenge about an alleged absence of a decision in the 1^st JR academic.

12.  Nevertheless, Mr Tse points to arguments the other way, and there is a specific request for an oral hearing of the application for leave in both the 1^st JR and the 2^nd JR, and directions have been given to enable the argument of the application for leave in the 1^st JR on a date already fixed.  I am told that Leading Counsel has been instructed for the Applicants for the hearing on that date.  Similarly, it appears to be accepted that there could be an effective oral hearing of the application for leave in the 2^nd JR on that same date (although the parties differ as to whether or not that should be in addition to or in replacement of the hearing fixed for the 1^st JR).

13.  I also accept that the agreement for resolving matters on paper thus far extends only to the current Summons, and not to the applications for leave to apply for judicial review themselves.

14.  That there is a significant overlap in the materials, and that the main battleground as to amenability or judicial review is common to both actions, seems to me to point to dealing with the two applications for leave together (if both are maintained).  The complete set of materials for the 1^st JR can be provided for that hearing, and it seems it will only be necessary to add materials generated after the making of the application in the 1^st JR for the purposes of dealing also with the 2^nd JR.  In any event, the amenability issue is likely to turn largely on the correct legal approach to the facts.  Whilst it may well be that the decision on that issue in the 1^st JR would be ‘carried over’ to the 2^nd JR, it is probably preferable that both matters are dealt with together so that the decision is clearly binding in both actions.

15.  I also bear in mind that the fixed date of 23 November 2021 is not too far distant, and even any costs order made now is unlikely to be taxed or assessed and payable significantly in advance of that date.

16.  In so far as it is appropriate to send any clear message that unmeritorious applications for judicial review, and the cost consequences of them, will be dealt with appropriately, the Applicants are clearly on notice that if they choose to pursue the 1^st JR and leave to do so is refused, they may well face a costs order on an indemnity basis.  The costs consequences flowing from the hearing of the application for leave in the 2^nd JR can obviously also be dealt with depending on the result of that application.  But the Applicants are also clearly on notice as to the risks of stringent costs consequences should that application fail for either or both of the arguments already identified with some detail on behalf of the Director as putative respondent.

D.   Result

17.  In the particular circumstances of this case (by which I mean both the 1^st JR and the 2^nd JR), I think there will be an appropriately expeditious and efficient disposal of the applications by hearing them together at 10am on 23 November 2021, before the same Judge (me).  I so direct.

18.  However, it seems to me the costs consequences of the Summons might be impacted by the result of the two leave applications. For example, if I were to be persuaded that the 1^st JR was indeed academic following the making of the May Decision and the commencement of the 2^nd JR to challenge it, then I anticipate an argument that the current Summons necessitated costs about an argument to join together two actions when one ought already to have been dropped.

19.  Obviously, I make no decision on costs at this stage.  Indeed, to preserve all parties’ position as to the costs submissions they might wish to make in the context of the outcome of the two applications for leave to apply for judicial review, I reserve the question of costs on the Summons.