TUNG CHUN CO LTD v. TOWN PLANNING BOARD

HCAL 9/2013

[2019] HKCFI 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 9 OF 2013

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REASONS FOR DECISION

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INTRODUCTION

1.  I have before me a summons issued by the Applicant seeking a retrospective extension of time for the service of the Notice of Appeal in CACV 48/2019 on 31 January 2019 insofar as it may be necessary.  As made clear by Ms Audrey Eu, SC for the Applicant, its stance is that the Notice of Appeal was served within time, but if necessary it would seek an extension of time.

2.  At the conclusion of the hearing on 16 April 2019, the court informed the parties that it considered that the Notice of Appeal was served out of time, but would grant to the Applicant a retrospective extension of time for the service of the Notice of Appeal in CACV 48/2019, with reasons to be handed down later.  This I now do.

APPEAL OUT OF TIME

3.  The basic facts of this matter have been set out in the court’s judgment dated 28 June 2018 (“the Judgment”), which dealt with three applications for judicial review, namely, HCAL 9/2013, HCAL 91/2014 and HCAL 288/2018 (the “1^st JR”, “2^nd JR” and “3^rd JR” respectively, and collectively the “Rs”) which were heard together, and shall not be repeated here.

4.  At paragraphs 116 and 117 of the Judgment, the court disposed of the 3 JRs as follows:

[116] In relation to HCAL 9/2013, I make an order of certiori to quash the Decision and remit the Applicant’s Representation No 9 to the TPB for fresh consideration in accordance with this judgment. Having regard to the issues which the Applicant has succeeded and those which it has failed, the time spent on the various issues, and the outcome of the application, I make an order that the TPB shall pay the Applicant 70% of its costs incurred in this application, including all costs reserved, to be taxed if not agreed with certificate for two counsel.

[117] In relation to HCAL 91/2014 and HCAL 288/2018, what (if any) substantive relief should be granted in view of the findings in this judgment may be open to argument. I shall leave it to the parties to agree on the appropriate form of the order, including the order as to costs, that should be made to give effect to this judgment, with liberty to the parties to apply for further directions if necessary.

5.  It is clear from the above paragraphs of the Judgment that:

(1)  the court had decided and spelt out the order to be made in the 1^st JR, namely, (i) the TPB’s decision to reject the Applicant’s Representation No 9 be quashed, (ii) the said representation be remitted to the TPB for fresh consideration, and (iii) 70% of the costs of the application be to the Applicant; and

(2)  the court invited the parties to either agree on or, failing agreement, apply for further directions in respect of, the orders to be made in the 2^nd and 3^rd JRs.

Significantly, the court did not leave open for further consideration the order to be made in the 1^st JR.  That only applied to the 2^nd and 3^rd JRs.

6.  By a joint letter dated 30 November 2018 (“the Joint Letter”), the parties informed the court that:

(1)  they were able to agree that, as far as the 1^st JR was concerned, there should be an order to quash the TPB’s decision made on 12 October 2012 not to propose amendments to OZP 26 in accordance with the Applicant’s Representation No 9; but

(2)  there were unable to agree on 3 matters, namely –

(a)  whether there should be an order to quash the TPB’s decision to gazette OZP 27, OZP 28 and OZP 29 in so far as they contain identical restrictions introduced in OZP 26 in relation to the Site, and consequentially an order for the TPB to re-consider all the decisions;

(b)  the order governing the submission of OZP 26 to OZP 29 to the Chief Executive in Council for approval; and

(c)  the costs order (if any) to be made in the 2^nd and 3^rd JRs.

7.  In the same letter, the parties sought the following direction –

“The parties respectfully propose that the outstanding dispute regarding the orders for HCAL 91/14 and HCAL 288/18 be dealt with by way of written submissions…” [emphasis added]

8.  Again, it is clear from the Joint Letter that the parties considered that the outstanding dispute related only to the 2^nd and 3^rd JRs, but not the 1^st JR, and it was such outstanding dispute that the court was asked to resolve by way of written submissions.  On 5 December 2018, the court approved the parties’ joint application.

9.  On 2 January 2019, the Applicant and Respondent each filed its written submissions and enclosed therewith a combined draft order covering all 3 JRs.

10.  The Respondent’s draft order consisted of 5 paragraphs:

(1)  paragraphs 1, 2 and 4 reflected the order made by the court in paragraph 116 of the Judgment in respect of the 1^st JR;

(2)  paragraph 3 related to the submission of OZP 26 to OZP 29 to the Chief Executive in Council for approval;

(3)  paragraph 5 related to the issue of costs in the 2^nd and 3^rd JRs.

11.  By a letter dated 3 January 2019, the court informed the parties that it accepted the Respondent’s submission and approved the draft order proposed by the Respondent.  Subsequently, the Applicant submitted separate draft orders in the 3 JRs to the court for approval. Eventually, the following orders as approved by the court were sealed:

(1)  In respect of the 1^st JR: an order dated 28 June 2018 quashing the TPB’s Decision not to propose amendments to OZP 26 in accordance with the Applicant’s Representation No 9 and remitting that representation to the TPB for fresh consideration, and awarding 70% of the costs to the Applicant (this order reflects what was ordered by the court in paragraph 116 of the Judgment).

(2)  In respect of each of the 2^nd and 3^rd JRs:

(a)  an order dated 28 June 2018 directing the parties to agree on the appropriate form of the order to be made, including the question of costs, with liberty to apply for further directions if necessary (this order reflects what was ordered by the court in paragraph 117 of the Judgment); and

(b)  a further order dated 3 January 2019 directing the TPB not to submit OZP 26 to OZP 29 to the Chief Executive in Council for approval until after the reconsideration of the Application’s Representation No 9, with no order as to costs (this order reflects paragraphs 3 and 5 of the Respondent’s draft order which was approved by the court on 3 January 2019).

12.  From the above, it is clear that in so far as the 1^st JR is concerned, the order made by the court, as eventually contained in the relevant sealed order, was made on 26 June 2018, and not on 3 January 2019.  In so far as the non-submission of, inter alia, OZP 26 to the Chief Executive in Council for approval is concerned, that never formed part of the court’s judgment in the 1^st JR.  If it is said that the court ought to have made an order prohibiting the submission of OZP 26 to the Chief Executive in Council for approval in the 1^st JR but erred in failing to do so, that could potentially be a ground of appeal, but could not affect the date of the actual order made by the court in that application for judicial review. The fact that it might not have been clear to the Applicant until 29-30 January 2019 that the order for the non-submission of OZP 26 to OZP 29 to the Chief Executive in Council for approval was only made in the 2^nd and 3^rd JRs is neither here nor there.  On the contrary, it is clear, from the Joint Letter, that both parties understood and proceeded on the basis that the outstanding dispute between them as regards the order to be made related only to the 2^nd and 3^rd JRs.

13.  In all, I am of the view that, in so far as the 1^st JR is concerned, the “date of the judgment, order or decision concerned” for the purpose of Order 59, rule 4(1)(c) of the Rules of the High Court, is the 28^th of June 2018.  It follows that the Applicant’s Notice of Appeal dated 31 January 2019 was served out of time.

EXTENSION OF TIME OUGHT TO BE GRANTED

14.  I can deal with the question of whether an extension of time ought to be granted more briefly.  It is clear that the court should not adopt a mechanistic approach when considering an application for an extension of time to appeal, but should take an overall view in the interests of justice. For this purpose, the court would have regard to factors such as the length of the delay, the reason for the delay, the merits of the appeal, the nature of the issues proposed to be raised on the appeal, prejudice to the respondent, and other matters which may be relevant on the particular facts of the case in question in order to determine whether the overall justice of the case requires the exercise of the discretion to extend time.

15.  In this case, the delay is obviously substantial (of over 6 months).  I am not satisfied that there are good reasons for the delay.  On the other hand, although I have, in the Judgment, rejected various arguments advanced on behalf of the Applicant, I consider the proposed appeal to be reasonably arguable.  Mr Lui, on behalf of the TPB, has confirmed that the board has decided not to oppose the present application on the basis that the intended appeal is hopeless or without any prospects of success.  The TPB’s position, put somewhat elliptically by Mr Lui, is that it “does not admit that the merits of the intended appeal are very strong”.  It is also significant, in my view, that the Court of Appeal will in any event have to consider the same arguments raised in the Notice of Appeal in CACV 48/2019 in relation to the 1^st JR when dealing with the appeals in CACV 49 and 50/2019 in relation to the 2^nd and 3^rd JRs.

16.  I do not accept the Respondent’s arguments on prejudice.  First, it is said that the intended appeal in CACV 48/2019 will very likely become academic because, under the current timetable, it is estimated that the TPB will hold a meeting in August 2019 to reconsider and rule on the Applicant’s Representation No 9 but it is unlikely that the intended appeal in CACV 48/2019 (and also the other two appeals in CACV 59 and 50/2019) can be heard by the Court of Appeal, let alone decided, by August 2019.  In my view, while the TPB is legally entitled, in the absence of any stay of proceedings, to proceed with the reconsideration of the Applicant’s Representation No 9 notwithstanding the appeals, I do not see why the judgment of the Court of Appeal will be rendered academic if it is given after the TPB has reconsidered and ruled on the said representation.  Should the judgment of the Court of Appeal be favourable to the Applicant, it can, if necessary, launch a further application for judicial review against the reconsidered decision of the TPB.  Second, it is said that the rezoning of 3 housing sites has been “put on hold” by the 3 JRs, in particular OZP 26 to OZP 29 cannot be submitted to the Chief Executive in Council for approval pending the reconsideration of the Applicant’s Representation No 9.  There are, I believe, two possible scenarios.  If the TPB decides to go ahead with the reconsideration of the Applicant’s Representation No 9 notwithstanding the appeals, granting the extension of time sought by the Applicant should not affect its progress.  On the other hand, if the TPB decides to wait for the outcome of the appeals before proceeding with the reconsideration, or if there is a stay of proceedings pending appeal, it is open to the TPB to excise the controversial part relating to the Site and submitted the rest of OZP 26 to OZP 29 to the Chief Executive in Council for approval first (see Turbo Top Ltd v Town Planning Board, CACV 255/2011, 18 January 2012, at paragraphs 7 and 14).  The Respondents says that the excision option is “cumbersome” and/or time consuming.  However, that option could have been explored a long time ago when leave to apply for judicial review was first granted by the court in February 2013.

17.  Taking an overall view of the matter, I consider that the interests of justice will be better served by granting to the Applicant an extension of time to appeal in the present case.

DISPOSITION

18.  I make an order granting to the Applicant a retrospective extension of time for the service of the Notice of Appeal in CACV 48/2019 on 31 January 2019.  On the question of the costs of the application, the Applicant requires the court’s indulgence for an extension of time to appeal, but is successful in obtaining the order sought.  I consider that the fair order to make would be costs in the cause of the appeal, and I so order.