LAM AR FU PETER v. BUILDING AUTHORITY

HCAL 2259/2018

[2019] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2259 OF 2018

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D E C I S I O N

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INTRODUCITON

1.  The background facts of this matter have been set out in the court’s previous decision dated 30 January 2019 (“the 2019 Decision”) and shall not be repeated here.  In this decision, the expressions and abbreviations as defined in the 2019 Decision shall continue to be used.

2.  In the 2019 Decision, the court:

(1)  refused to grant an extension of time to the Applicant to apply for leave to apply for judicial review of the 2018 Determination made by the Tribunal on 18 January 2018, and dismissed the application for leave to apply for judicial review of that determination (see paragraph 27(1) of the 2019 Decision); and

(2)  dismissed the application for leave to apply for judicial review of the Tribunal’s order absolute dated 19 July 2018 that the Applicant was to pay the BA’s costs of the 2010 Appeal (see paragraph 27(2) of the 2019 Decision)

3.  By two summonses both dated 13 February 2019, the Applicant applied for leave to:

(1)  submit the record (“the Appeal Record”) of the proceedings in the Tribunal in relation to the 2010 Appeal (“the First Application”); and

(2)  appeal against the court’s refusal to grant an extension of time to him to apply for leave to apply for judicial review of the 2018 Determination, and dismissed the application for leave to apply for judicial review of that determination (“the Second Application”).

The Applicant’s submissions in support of the First Application and Second Application were attached to the respective summonses.

4.  Following the court’s directions dated 15 February 2018 to dispose of the First and Second Applications on paper, the Department of Justice on behalf of the BA filed written submissions in opposition to the two applications on 8 March 2019, and the Applicant filed his submissions in reply on 22 March 2019 (note that those submissions were mistakenly dated 22 January 2019).

5.  This is the court’s determination of the two applications.

THE FIRST APPLICATION

6.  It is not entirely clear whether the Applicant’s application for admission of further evidence is in support of his intended appeal against the 2019 Decision.  On the assumption that it is, the application for admission of further evidence ought to have been made to the Court of Appeal, instead of to the Court of First Instance.  In any event, to justify an application for admission of fresh evidence in the Court of Appeal, the Applicant normally has to satisfy the three conditions laid down in Ladd v Marshall [1954] 1 WLR 1489.  In the present case:

(1)  In respect of the first condition, the Appeal Record plainly could have been obtained and, it would appear, was in fact available to the Applicant, at the hearing of the application, his explanation for not adducing the record at that time being that he thought the materials should be adduced at the substantive hearing of the application for judicial review instead of at the hearing for leave to apply for judicial review in order not to “bury the court with papers”.

(2)  In respect of the second condition, the Appeal Record does not have an important influence on the application.  The Applicant has not pointed to any particular part or aspect of the Appeal Record which would assist in his challenge of the Tribunal’s decisions.  The court was also able to deal with the Applicant’s intended grounds of judicial review on the basis of the materials before it.

(3)  The third condition has little relevance in relation to evidence such as the Appeal Record.

7.  The three conditions under Ladd v Marshall are cumulative, and the Applicant has failed to satisfy the first and second conditions.  In matters of judicial review, the court has a discretion to depart form Ladd v Marshall, but there is no exceptional or good reason to do so in the present case.

8.  On the other hand, if the application is not in support of the proposed appeal, there would be no reason for the court to receive the further evidence after it handed down its decision on 30 January 2019.

9.  For the above reasons, the First Application is dismissed with costs to the BA, to be taxed if not agreed.

THE SECOND APPLICATION

10.  Five grounds have been advanced by the Applicant in his written submissions in support of the application for leave to appeal.

11.  First, the Applicant argues that the BA acted in breach of the court’s direction given on 29 November 2018, under which the BA was directed to file evidence 14 days prior to the hearing (which took place on 18 January 2019), in that the BA only lodged hearing bundles and submissions on 15 January 2019.  The Applicant has confused between evidence on the one hand and hearing bundles/submissions on the other.  The BA’s evidence, in the form of an affirmation of Choy Lap Shing dated 3 January 2019, was filed and served on 4 January 2018 (see affirmation of service of Yiu Man Chi filed on 8 January 2019).  There was no breach of the court’s direction.

12.  Second, the Applicant complained about the delay of 31 months by the Chairman of the Tribunal to render the 2018 Determination.  However, the mere fact that there has been delay in rendering a decision is not a ground of judicial review of the decision.  In respect of the specific matters complained of:

(1)  In relation to the Applicant’s complaint about the failure of the Tribunal to explain the reasons for refusing to allow a proposed line of cross examination by the Applicant in the 2018 Determination, this matter has been dealt with at paragraph 18(1) of the 2019 Decision.

(2)  In relation to the complaint that the Tribunal failed to deal with all the legal authorities referred to or relied on by the Applicant, there is, in my view, no duty on the part of the Tribunal to do so. This point is dealt with at paragraph 24 of the 2019 Decision.  It is a matter entirely for the Tribunal to decide what authorities to refer to in its decision.  The important question is not what authorities the Tribunal referred, or did not refer, to in its decision, but whether the Tribunal made any material error of law in reaching its conclusions.  I do not see that the Tribunal made any such error of law.

(3)  In relation to the complaint that the Tribunal omitted to refer to some alleged settlement discussion between one Mr Ho and the Applicant, this is a new point which was not taken at the hearing on 18 January 2019.  In any event, I do not see how that omission is material to the Tribunal’s decision, or would affect the result of the application for leave to apply for judicial review.

(4)  In relation to the complaint that the Tribunal failed to deal with two particular grounds of appeal raised by the Applicant, this matter has been dealt with at paragraphs 18 and 20 of the 2019 Decision.

13.  Third, the Applicant reiterates his complaint that the Tribunal ought to have accepted his submissions as evidence.  This point has been dealt with at paragraph 24 of the 2019 Decision.

14.  Lastly, the Applicant repeated his argument that the Tribunal should adopt a “low costs regime”.  This point was fully considered and dealt with at paragraph 19 of the 2019 Decision.

15.  In all, none of the intended grounds of appeal has a reasonable prospect of success, and there is no other reason in the interests of justice why the appeal should be heard.  The Second Application is dismissed with costs to the BA, to be taxed if not agreed.