TSE SAI KIT v. THE DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL 1256/2024

[2024] HKCFI 3255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1256 OF 2024

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REASONS FOR DECISION

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A.  Introduction

1.  The Applicant, the Respondent, the Interested Party and the Court all find themselves in an awkward position. No one in that list is to blame for that awkward position, which arises in the following circumstances.

2.  These proceedings were commenced by Form 86 dated 31 July 2024, drafted by Leading and Junior Counsel instructed by solicitors, all of them acting on a pro bono basis. The Applicant seeks to challenge a decision of the Respondent dated 17 May 2024, approving the EIA Report submitted by the Interested Party on 6 December 2023. The relevant development project is San Tin Technopole Project.

3.  On 12 August 2024, I granted leave to apply for judicial review on the papers. I also directed the parties to liaise with a view to proposing jointly agreed directions to lead to a substantive hearing of the application for judicial review.

4.  On 14 August 2024, and in light of the grant of leave, the Applicant applied for legal aid. The automatic statutory 42-day stay of proceedings thereby triggered expired on 25 September 2024.

5.  On 3 October 2024, the Department of Justice offered case management directions for the Court’s consideration. But on 4 October 2024, the Applicant issued a summons seeking a stay of proceedings for 28 days or until 7 days after the date of the final determination of his application for legal aid.

6.  On 7 October 2024, I declined to grant a stay until after determination of the legal aid application, as that was too open-ended. I also declined to grant a stay of 28 days, when there might then be an application for that to be extended. Instead, I stated that it seemed to me the appropriate way to deal with the matter by way of case management was to seek to exercise case management discretion to balance the need for reasonable expedition in the disposal of this case against the preference for the Applicant to obtain representation with the benefit of a legal aid certificate (better to assist the Court).

7.  I balanced matters by fixing a substantive hearing date – for a four-day hearing to start on 9 June 2025 – and by giving what seemed to me to be a reasonable timetable for the steps to bring the matter to that hearing, counting back from the fixed hearing date. I anticipated that expert evidence would likely be deployed, and that the default approach should be for filing of expert evidence assumed not controversial, unless objection is taken to it once seen. I emphasised that, although I would give liberty to apply, the timetable was intended to be fixed and any applications for any variation/extension of time would be carefully scrutinised.

8.  The first step in the timetable directed was for the Applicant to provide his expert’s expert evidence, if any, on or before 6 December 2024. As at the date of my directions on 7 October 2024, that first step was two months away and the timing seemed fair and appropriate, notwithstanding that the Applicant’s legal aid application remained outstanding.

9.  In that context I also expressed the view that, whilst it was not for me to tell the Director of Legal Aid what to do or when to do it, this case is of sufficient public interest that the legal aid application should be progressed as fast as possible, and a determination on it reached one way or the other. I even expressed the assumption – which turns out to have been over-optimistic and misplaced – that the legal aid application could be determined within a reasonably short time from 7 October 2024, in the circumstances that I had already decided that the application for judicial review was reasonably arguable, which is why I granted leave to apply for judicial review.

10.  From the outset of the making of the application for legal aid, solicitors for the Applicant have pressed the Director to deal with that application with some degree of expedition. As soon as my case management directions were made, they were forwarded to the Director, together with the request that the determination of the legal aid application be reached without delay. Further enquiries were made by telephone and by letter up to and including 16 October 2024.

11.  On 21 October 2024, Ms Emily Ho, Assistant Principal Legal Aid Counsel, for the Director, wrote to the Applicant’s solicitors. From the general tone of the letter, it seems that Ms Ho was not enamoured of being asked to address this particular legal aid application with some degree of urgency against the matters of public interest raised by the judicial review proceedings. Two particular paragraphs of that letter merit being set out in full:

Our Department aims to complete processing legal aid application within 3 months of your client’s making the application for legal aid if there has been timely provision of information relating to merits of the present case by the applicant or other third parties and detailed merits investigations are not required. Pending our consideration, your client has to handle his JR case. As his legal representative, we believe that you would take all appropriate and necessary steps to protect his interest.

We would like to take this opportunity to remind you and your client that repeated and unnecessary enquiries about the progress would lead to delay in our processing of his legal aid application. Please remind your client of the last paragraph of the attached Notice of which a copy has been provided to him when he submitted his legal aid application. Please do refrain from making unnecessary enquiries regarding the progress of his application before expiry of the 3-month period. We will inform your client of the outcome of his application once our decision is made.

12.  With respect to Ms Ho, there is room for thinking that the letter is a little unattractive and simply rather unhelpful. Those two particular paragraphs seem to demonstrate, or it is Ms Ho’s views, that:

(1)  The Applicant’s application for legal aid is being treated as ‘run-of-the-mill’, without reference to the circumstances of the underlying judicial review application, which plainly raises matters of public interest from all sides and has a degree of urgency.

(2)  That is why reference is only made in the letter to the Legal Aid Department’s general “aim” (or performance target) to complete processing legal aid applications within 3 months.

(3)  But even that general aim seems to be applicable only if there has been timely provision of information relating to the merits of the case by the applicant or other third parties and detailed merits investigations are not required.

(4)  Yet, in light of the Director’s decision to seek a section 9 Opinion from external Counsel as to the merits of the application, it seems that even the 3-month “aim” is not or may not be considered to be applicable.

(5)  Notwithstanding the Court’s directions setting out a clear timetable of directions towards a milestone hearing date, enquiries about whether legal aid would be granted to permit realistically complying with those directions are regarded as “unnecessary”.

(6)  Because the Applicant always knew of the 3-month period, he should not have made, nor should he make any more, enquiries prior to expiry of that period.

(7)  Even then, he should just await the outcome of the application, which will be notified to the Applicant once the decision is made (with no further indication as to whether that will or will not be made within the three-month period or any other period).

13.  However, it might be noted that: (a) there is no suggestion that there has been any failure by the applicant to give timely provision of information relating to merits of the case; and (b) at least one other third party has also given timely provision of information relating to merits of the case. That third party is this Court, and the timely provision of information was that this Court granted leave to apply for judicial review even before the application for legal aid was made, then gave directions to bring the matter to a substantive hearing on a reasonably expeditious basis.

14.  Further, where the Applicant faces the looming first step of filing evidence in accordance with the timetable set by this Court, which for all practical purposes he could not likely file without the grant of legal aid, the Applicant nevertheless remains completely in the dark as to the stage of the process of consideration of the legal aid application, with no indication as to when that consideration might be concluded, other than the possibly inapplicable reference to the standard performance target period.

15.  When, from the materials, it seems that the Applicant has passed the means test element relevant to an application for legal aid, it is obviously redundant for Ms Ho to have told the Applicant’s pro bono solicitors that pending the determination of the application for legal aid, the Applicant “has to handle his JR case” and that she believes the solicitors “would take all appropriate and necessary steps to protect his interest”.

16.  It might also be thought that one way to protect the Applicant’s interest was to ask for a more expeditious determination of his legal aid application where (1) the Applicant has passed the means test and (2) the Judge has decided the case is sufficiently arguable with realistic prospects of success to lead to the grant of leave to apply for judicial review, and to fix a timetable towards a substantive hearing with an agreed 4 days reserved. Of course, this is what the solicitors did.

17.  It is in the above circumstances that the Applicant felt constrained to issue a summons dated 29 October 2024, seeking a stay of these proceedings for 14 days from the date of the Order to be made, or until the grant of the Applicant’s legal aid certificate, whichever is earlier.

18.  I heard the summons on 11 November 2024, when the Applicant was again represented by his solicitors and Counsel on a pro bono basis. I had the benefit of skeleton and oral submissions made by Mr Nigel Kat SC leading Mr Ernest Ng for the Applicant, and skeleton submissions filed by Ms Bonnie Cheng for the Respondent and Mr Zenith Chan for the Interested Party. I did not call on either of Ms Cheng or Mr Chan to make further oral submissions.

19.  At the end of the hearing, I dismissed the summons, with reasons to be given subsequently.

B.  The Reasons

20.  First, even the statutory stay triggered by the making of an application for legal aid, which is regarded as necessary and laudable, is potentially a grave and damaging encroachment upon the opposing litigant’s rights: see Lee Shiu Ming v Yeo Hiap Seng (Hong Kong) Ltd (unreported, CACV 39/1993, 14 July 1993). Hence the corresponding duty upon the Legal Aid Department to act expeditiously to terminate the period of stay as early as practicable. It does not seem to me that the duty of expedition disappears once the statutory stay period has ended, not least in public law litigation of some public interest and importance from a number of angles.

21.  Secondly, if the Director were actually to meet the performance target of giving a decision within 3 months, that period expires within this week. Therefore, the grant of a stay for a few days seems to me to be of no practical benefit.

22.  Thirdly, I remain of the view previously expressed that granting the 14-day stay ‘in the dark’ is also of little benefit, where it may simply be that there will be an application for extension of that stay if the legal aid application is not determined within those 14 days. The logic of the basis for seeking this stay seems to identify that there would inevitably be another application to extend the stay if the legal aid application has still not been concluded. I am not attracted to the idea of rolling applications for stays in the hope that the legal aid application is finally determined within one of the periods of stay granted.

23.  Fourthly, granting a stay seems to me to send exactly the opposite message from that which I have already tried to send, and which I am now sending again. A stay might suggest that the Court does not regard these proceedings, and the timetable already set, as of some importance and time sensitivity. I would not want any person, including the Director, consciously or otherwise to think that the urgency and need for truly expedited action as regards this case has somehow abated.

24.  Fifthly, I agree with Mr Chan that in so far as it may transpire in due course that the Applicant is unable to meet the deadline for filing his expert evidence by 6 December 2024, as a result of the time taken by the Director in deciding the legal aid application, the appropriate course of action is for the Applicant then to seek a (hopefully short and probably commensurate) extension of the deadline.

25.  Sixthly, there are numerous public interests involved in these proceedings. Matters relating to the protection of the environment are matters of public interest. Similarly, matters relating to infrastructure and other government development projects, including the provision of residential and commercial accommodation, are also matters of public interest. If the challenge mounted in these proceedings is for some reason not to be continued, I think that the Respondent and the Interested Party are entitled to know that in good time.

26.  The best way to achieve that is to continue to encourage the Director to apply the necessary resources to deal with the legal aid application more expeditiously. If a fuse needs to be lit somewhere, it should be lit. Of course, all litigation is important to the litigants, and all applications for legal aid need to be dealt with appropriately. But some litigation is more urgent than others, and some litigation raises or engages more public interest issues than others. This particular piece of litigation is both more urgent and engages more public interest issues than many others even in the public law sphere.

C.  The Result

27.  It is for those reasons that I dismissed the summons.

28.  Nevertheless I expressly acknowledge the difficult position in which the Applicant finds himself. He would wish to get on with his own application. He is also facing pressure from the Respondent and the Interested Party, who understandably wish these proceedings (if they are to continue) to keep to the carefully balanced timetable set by this Court.

29.  But, whilst I acknowledge the Applicant’s position, I do not think the interests of justice are best served by a case management decision granting the stay sought by him. The important public interest in the expeditious disposal of this case does not permit it.

30.  Nevertheless, in the circumstances, I also propose to make an order that there shall be no costs of the summons. I make that order on a nisi basis in the first instance, and it will become absolute if no party seeks a variation of it by 22 November 2024.