CHU YEE WAH v. DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL9/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.9 OF 2010

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J U D G M E N T

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1.  I have before me a summons dated 7 January 2011 in this judicial review seeking directions from the court that there be two sets of meetings between the respective experts of the parties followed by the preparation of a joint statement. The hearing today is less than eight weeks from the substantive hearing of the judicial review due to commence on 22 March 2011.

2.  The summons attaches as an Annex a list of topics and questions which the applicant submits the respective experts should be directed to discuss.  The Annex raises 16 questions under four separate topics, those topics being: (i) the PATH model, (ii) Baseline Methodology, (iii) Ozone, TAPs and PM2.5, and (iv) AQOs and Public Health Impact.

3.  Although submissions as to the timing of an application might be thought to be purely forensic, there is some force in the submission that this application is late.  The idea of a joint meeting of experts was only faintly raised at the PTR before me on 7 December 2010.  Then, Mr Dykes SC, leading counsel for the applicant, trailed his coat over this idea at the end of a two-page skeleton argument in §7.  At the PTR, in the light of the way the subject was raised, I gave general directions with a view to facilitating a meeting of the experts, if one were to take place, but those directions did not assume that such a meeting must take place.

4.  This was long after the filing of the expert evidence and the filing of the parties’ respective skeleton arguments for the substantive hearing.  In fact, but for Lam J having recused himself from hearing this matter, it would appear that this judicial review would have been heard on 8 November 2010 without such a meeting taking place.  In the circumstances, I agree with the submission that the lateness of the application imposes a burden on the applicant to demonstrate clearly why the experts should be directed to meet at this late stage.

5.  The respondent’s opposition to the proposed meeting of experts is not, however, based on the ground of its lateness. Instead, the respondent objects on the ground of relevance, on the basis the questions are not matters of expert evidence and on the ground that ordering a meeting of experts would be contrary to the principle of proportionality and procedural economy.

6.  I do not propose to address the question of relevance at great length in this determination.  In particular, I am anxious to avoid anything being said now that will tie the court’s or parties’ hands at the substantive judicial review, particularly since this application is proceeding before I have embarked on the reading-in exercise which the parties have suggested be undertaken before the substantive hearing.

7.  The applicant submits that, key to the question of relevance, are the principles laid down in Shiu Wing Steel v Director of Environmental Protection & Anor. (No.2) (2006) 9 HKCFAR 478 at §30.  In summary, whether an EIA report meets the requirements of an applicable TM or SB is a question of construction for the court “as they would be understood by an expert risk assessor”.  In determining what the TM and SB require, technical evidence may be necessary to show that an EIA report meets or does not meet the requirements so determined.  Thus, whilst the definition of the legal effect of the TM and SB is a matter of law, any special or technical meaning which experts may attribute to particular terms may need to be appreciated.

8.  This much is not controversial between the parties.  But focusing on these principles, it is not immediately apparent why the questions raised in the Annex are necessary to enable the issues raised in the judicial review to be resolved.  The respondent has identified the grounds of judicial review as being three-fold, namely (1) non-compliance with the TM and SBs, (2) irrationality of the approval of the EIA reports because the respondent ought not to have accepted the conclusion of those reports that there would be no residual air quality impacts from the operation of the projects, and (3) breach of s.10(2)(c) of the Environmental Impact Assessment Ordinance (Cap.499) in that the EIA reports lack a quantitative risk assessment on public health.  Counsel for the applicant has not suggested this is not an accurate summary of the grounds.

9.  With this general framework in mind, I turn to the questions raised in the Annex.  In my opinion, at least 7 of the 16 questions, which the applicant would have the court direct the experts to discuss, are matters of fact and the purpose of raising them for discussion would seem to be more to elicit further facts and materials.  That is plainly not an appropriate exercise for the experts or the parties to engage in and certainly not at this stage of the proceedings.

10.  In any event, insofar as the questions of fact are raised in order to determine if it can be said something does or does not need to be done in order to comply with the TM or SBs, the absence of clear facts to demonstrate compliance with the TM or SBs would seem prima facie to be a matter in the applicant’s favour, subject, of course, to the legal arguments as to the proper construction of the TM and SBs.

11.  The remaining 9 of the 16 questions do not appear to me to be relevant in the sense that the differences between the parties are either matters of submission, or the court will be concerned to ascertain if there is a legal requirement to include certain matters rather than any other rationale for doing so, or the court will need to decide whether something that has not been done should, as a matter of law, have been done.

12.  It is important also to remember that these are judicial review proceedings and that there is no process of discovery of documents as in normal court proceedings.  The contested judicial review hearing proceeds on the basis of affidavit evidence only and it is only rarely that cross-examination of the deponents is directed.  For this reason, dicta from other cases involving issues to be resolved at trial by oral expert testimony must be read with this distinguishing feature in mind.

13.  Here, the experts have already provided their evidence by way of affidavit or affirmation.  There has been no application for cross-examination and, indeed, as I have noted, such a course would be rare. It would be quite inappropriate to direct the experts to meet so that one set of experts could seek to cross-examine the other.  In my opinion, a meeting of the experts in this case at this stage would only serve a useful purpose if it were for the purpose of narrowing any issues between the experts or to reduce the volume of evidence the court would need to consider.  Here, it would appear that the intended meetings are to result in further material being put before the court.  But what the status of that further material would be, whether evidence or otherwise, is not at all clear.

14.  Furthermore, the likelihood of further materials being produced as a result of any meetings is increased by the fact that the experts themselves are from a number of entirely discrete scientific disciplines.

15.  Finally, given my misgivings about the ability of the experts to cut down on the volume of material before the court and the unlikelihood of meaningful agreement, it would be disproportionate and wasteful of costs to direct the experts to meet.  The Civil Justice Reform Final Report §603 points out that, after CJR, the court should apply the rules more assiduously to ensure that expert evidence does not become so over-complicated that it hinders rather than helps the court.  This is particularly true in the context of judicial review proceedings where the court is exercising a supervisory role and the basis on which it is said any particular decision is liable to be interfered with as a matter of public law must be clearly stated.

16.  I do not doubt that the subject matter of this judicial review is of considerable public importance, as submitted on behalf of the applicant.  But that is not a reason to allow the case to become a debate between the experts on environmental protection in general.

17.  For these reasons, I am not persuaded that I should exercise my discretion, as a matter of case management, to direct the meetings of experts sought by the applicant’s summons. 

18.  That summons is therefore dismissed and I will hear the parties on costs.

[Argument on costs]

19.  The respondent’s costs of the application be paid by the applicant in any event, with certificate for two counsel, to be taxed if not agreed.  The applicant’s own costs to be taxed in accordance with the Legal Aid Regulations.