CHEE FEI MING v. DIRECTOR OF FOOD AND ENVIRONMENTAL HYGIENE AND ANOTHER

CACV 219/2014 and
CACV 220/2014
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 219 OF 2014

(ON APPEAL FROM HCAL NO 73 OF 2013)

________________________

________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 220 OF 2014

(ON APPEAL FROM HCAL NO 110 OF 2013)

________________________

________________________

(Heard together)

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JUDGMENT

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

1.  On 6 June 2016, we allowed the appeals to a limited extent, granting leave to the applicants to apply for judicial review on the ground specified in our judgment. As held in our judgment, the ground was not a ground originally canvassed before Poon J. Since then, the applicants issued Notices of Motion on 28 June 2016 seeking leave to appeal to the Court of Final Appeal. The applicants also applied for variation of the costs order we made: instead of the applicants paying the costs below and 75% of the costs of the appeal, they sought it to be varied to an order that the respondents shall pay the costs below and 75% of the costs of the appeal.

2.  Having read the submissions of the parties, we are of the view that these applications can fairly be determined without any oral hearing.  This judgment is our determination on these post-judgment applications.

3.  This Court had previously commented upon the impropriety of setting out lengthy arguments in an application of this nature: see Ho Sin Ying v Chan Yui Ling CACV 221 of 2013, 14 November 2014; Kwangtung Provincial Bank v Chung Sun Kwan CACV 64 of 2014, 3 December 2014.  It may be useful for us to reiterate what had been said at [2] and [3] of Ho Sin Ying v Chan Yui Ling:

“ At the outset, we wish to take this opportunity to remind practitioners that this court will not allow an application of this nature to be deployed as an occasion for re-running the substantive arguments (whether reformulated or in the same way as the arguments already canvassed in the substantive appeal). This comment applies to both written as well as oral (if an oral hearing takes place) presentation of materials in the context of an application for leave to appeal. It should be borne in mind that by this stage, this court has made its decision on the substantive appeal after hearing the appeal itself. The court is therefore familiar with the backgrounds and the substantive arguments engaged. Extensive regurgitation of such arguments in an application for leave to appeal to the Court of Final Appeal before this court is unnecessary. The focus in the application should be on the question whether the requirements for granting leave under s 22 of the Hong Kong Court of Final Appeal Ordinance [“HKCFAO”] can be satisfied.

Henceforth, this court expects practitioners to bear the above observation in mind in the preparation of their submissions for an application of this nature.  The submissions should not seek to re-argue the points which had already been canvassed at the appeals.  They should focus on how it is contended that leave should or should not be given in accordance with the relevant criteria in the HKCFAO and whether those points actually arise in the context of the case before the court.  In future, the court may return submissions which substantially go beyond such parameters and counsel and solicitor will not be entitled to costs for the preparation of the same.”

4.  The essential function of a Notice of Motion in an application for leave is to identify the questions for the determination of the Court of Final Appeal and explain how those questions arise in the intended appeal and how they satisfy the requirement in Section 22 of the HKCFAO. Whilst arguability of the questions is a matter that the courts will consider in deciding whether leave is to be granted, it is primarily a matter of submissions which should not be set out at length in a Notice of Motion. Disguising submissions as grounds of appeal in a Notice of Motion (and we will also say the same regarding Notices of Appeal in respect of appeals to this Court) is not appropriate.  For the reasons explained in Ho Sin Ying v Chan Yui Ling, supra, in light of this Court’s knowledge of the case and the arguments already canvassed in the course of hearing the appeal before us, there is no need for counsel to revisit the merits of the arguments at great length before this Court in the context of an application for leave to appeal to the Court of Final Appeal.

5.  In the present case, the Notices of Motion are documents of 18 pages each.  A substantial part of the documents are submissions.  The questions of great general and public importance were formulated by the applicants at para 2 of the Notices as follows:

“ (1) “Whether it is reasonably arguable that on its true construction the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap. 132) for prior approval for display of bills and posters on government land is not applicable to demonstrators’ banners” (“the construction Question”).

(2) “Whether it is reasonably arguable that the application to demonstrators’ banners of the requirement in Section 104A of the Public Health and Municipal Services Ordinance (Cap. 132) for prior approval for display of bills and posters on government land is inconsistent with Basic Law Article 27 and Bill of Rights Articles 16 and 17, in that it fails the proportionality test” (“the Proportionality Question”).”

6.  Our answers to those questions were summarized in the Notices of Motion as follows:

“ (a)     On proper construction, Section 104A (“Section 104A”) of the Public Health and Municipal Services Ordinance (Cap. 132) (the “Ordinance”) applies to the banners or placards in a demonstration (whether mobile or static) if the use of those banners or placards occupies a spot of the Government land on some permanent and habitually regular basis and it is not reasonably arguable that Section 104A does not apply to a banner used in conjunction with a static demonstration as submitted by the Applicant (the “Construction Issue”); and

(b)     The mere fact that approval is required for display of posters and bills used in conjunction with a demonstration does not render Section 104A unconstitutional in that the mere fact that approval is so required is not disproportionate (the “Proportionality Issue”).”

7.  Though we granted leave to apply for judicial review on the limited ground specified in our judgment, we refused leave on the other grounds.  For present purposes, we shall assume (without deciding, as there is no submission on the point before us) that we should treat the decision on the same footing as a decision to refuse leave, c.f. in a slightly different context Hong Kong Island Development Ltd v World Food Fair Ltd (2006) 9 HKCFAR 162 at [15].

8.  In the submissions, there is an issue between the parties on whether there is any scope for leave to appeal to the Court of Final Appeal to be granted in light of this Court’s refusal of leave to apply for judicial review on the Construction Issue and the Proportionality Issue. Reference was made to several English authorities which were mentioned in the decision of this Court in Chik Wen Fei v Secretary for Justice CACV 141 of 2008, 17 October 2008 in which the issue was left open.  Notwithstanding the arguments advanced before us, we did not find it necessary to decide this issue in this case and as we had not heard submissions from Mr Yu SC on the alternative submission of Mr Harris SC on constitutionality advanced only in his reply submissions, we decided to leave the question open. 

9.  Instead, we determine the applications for leave to appeal on the basis that in our view, the Construction Question and the Proportionality Question are not reasonably arguable.  In these respects, Mr Harris basically repeated submissions he advanced at the appeal.  We shall not repeat what had been said in our judgment in rejecting his submissions.  It should be noted that by our decision in the appeal the applicants are refused leave from contending that the mere requirement for approval is disproportionate.  Depending on the evidence that is to be filed on the scheme of approval, our decision does not bar them from advancing a case of disproportionate restriction in terms of some features in such a scheme. Whether they need to amend their Form 86 again is a matter for them and the judge hearing the application for judicial review.

10.  We therefore refuse to grant leave to appeal and dismiss the motion of the applicants accordingly.

11.  Turning to the application for variation of our costs order, we ordered the applicants to pay the costs of the respondents because of our conclusion that the appeal would have failed but for the indulgence granted by us to have the “prescribed by law” ground added as a ground in the Form 86.  We held in the course of the appeal that such amendment is necessary and Mr Harris sought leave to amend accordingly.  It is not permissible for him to contend now that the ground had already been before Poon J. 

12.  Notwithstanding the submissions of Mr Harris, we remain of the view that without the amendment, Mr Harris should not be allowed to run the “prescribed by law” ground.  As Mr Yu submitted, the original Form 86 did not plead any “prescribed by law” challenge and we could not accept on the basis of a few exchanges in the course of hearing (and the applicants did not produce the official transcript before us) that the judge had been properly directed to the point that Mr Harris was making a distinct challenge on that ground instead of making submissions in the context of the other grounds of a proportionality challenge.

13.  For these reasons, we see no basis for varying our costs order nisi.

14.  We shall also dismiss the application for variation of costs order.

15.  We also order the applicants to pay the respondents’ costs of these applications with certificate for 2 counsel (and we also give such certificate for the costs of the appeal).  Such costs are to be taxed if not agreed.  The Applicants’ own costs be taxed in accordance with the Legal Aid Regulations.