WISE UNION INDUSTRIES LTD v. HONG KONG SCIENCE AND TECHNOLOGY PARKS CORPORATION

HCAL12/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 12 OF 2009

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(Heard Together)

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J U D G M E N T

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1.  I am afraid I am not with Mr Bleach SC despite his detailed arguments.  I find Mr Fok SC’s points quite unanswerable.

2.  We are now in the post-CJR era.  A late application to amend or to introduce new evidence has a fairly high threshold to pass.

3.  The applicants’ case, taken to the highest, is that they were only aware of the substantive grounds for the rejection of their respective applications in early May this year, when evidence was filed on behalf of the respondent.  Unfortunately, they took almost four months to put in their reply evidence in which they dealt with these substantive reasons.  Bearing in mind that the hearing date had been fixed for quite some time, when the reply evidence was put in containing for the first time the factual matters that the applicants relied on in relation to these substantive grounds, the substantive hearing was only about two weeks away.

4.  As Mr Fok pointed out, this delay, viewed in the context of a judicial review application which requires an application for leave to apply for judicial review to be taken out promptly, and in any event within three months from the date when the grounds first appeared, was a lengthy one, and I should immediately add that there is no satisfactory explanation from the applicants regarding the delay.

5.  But not only that; when the reply evidence was put in, it was not accompanied by any draft amended Form 86A to set out the new grounds of challenge which each of the applicants would like to rely on at the substantive hearing.  Those new grounds were only placed before the Court and supplied to the respondent at this morning’s hearing.  Again, there is no explanation for this further period of delay.

6.  To the credit of the respondent and Mr Siu and those representing the respondent, Mr Siu has, on behalf of the respondent, managed to put together an additional affirmation in each of the applications to try to deal with, as best as he could, the factual matters now contained in the reply evidence from the applicants.

7.  I accept Mr Fok’s argument that despite the good effort of Mr Siu, the respondent has suffered a real prejudice as a result, in terms of the contents of the evidence and the area of matters that Mr Siu’s evidence could manage to cover.

8.  One other self-evident prejudice is that without having sight of the new grounds of challenge, Mr Siu’s evidence is inevitably somewhat unfocused.

9.  Talking about prejudice, I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that is to be paid for by the other side) would mean that there is no prejudice.  In my view, at least nowadays, an adjournment itself is a prejudice.  Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there is no prejudice.  The unenviable position that such a party finds himself in is in itself a prejudice.

10.  I have also borne in mind the substance of the proposed amendments, but without having the benefit of detailed arguments relating to these new points, this factor, though relevant, can only play a very minor part in the Court’s exercise of its discretion.

11.  Having borne everything in mind, including the observations made by Litton PJ in the leading case of Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 340 F-G, regarding the court’s proper approach to applications to include new grounds in applications for judicial review after leave was granted, I have come to the conclusion that the application to amend the Form 86A in each application must be refused.

12.  So far as the reply evidence is concerned, unless Mr Fok suggests otherwise, I would be prepared to allow the reply evidence to stay where it is, but it will only be treated as part of the background materials, and no use can be made of it insofar as such use has not been pleaded, as it were, in the Form 86A in each application.  The same goes for Mr Siu’s evidence.  I will be prepared to hear from counsel regarding that approach.