WU CHI HUNG ALFRED v. COMMISSION OF INQUIRY INTO THE DIAPHRAGM WALL AND PLATFORM SLAB CONSTRUCTION WORKS AT THE HUNG HOM STATION EXTENSION UNDER THE SHATIN TO CENTRAL LINK ROJECT

HCAL 3017/2018

[2019] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3017 OF 2018

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REASONS FOR DECISION

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INTRODUCTION

1.  In this application for leave to apply for judicial review commenced on 31 December 2018, the Applicant seeks to challenge the decision (“the Decision”) of the Chairman for and on behalf of the “Commission of Inquiry into the Diaphragm Wall and Platform Slab Construction Works at the Hung Hom Station Extension under the Shatin to Central Link Project” (“the Commission”) on 7 December 2018 that it was not necessary for Mr Simon So, counsel for China Technology Corporation Limited, to ask Mr Andy Wong, an assistant inspector of works of the MTR Corporation Limited and a witness who gave evidence in the Inquiry, to identify the workers who allegedly took part in “cutting” some threaded rebars.

2.  In the Form 86, the Applicant asked for an oral hearing of the leave application in the event that the court was minded to refuse leave on papers.  At paragraph 67 of the Form 86, the Applicant further applied for an expedited hearing of the application on the ground that the Commission had indicated that it aimed to complete the oral evidence before 29 January 2019 and tendered its official report to the Chief Executive-in-Council on 26 February 2019.  Accordingly, an expedited hearing of the leave application on 11 January 2019 was fixed by the court.

3.  On 8 January 2019, the Applicant, through his solicitors (Henry Wan & Yeung), wrote to the court stating that he wished to withdraw the application for judicial review, apparently because he had not yet obtained legal aid and the court had earlier refused to postpone the hearing of the leave application pending the outcome of his legal aid application.  In view of the nature of the challenge in this application and the fact that the matter has attracted some public attention, the court considers that the application ought to be disposed of formally in open court.

BASIC FACTS

4.  The Commission was appointed by the Chief Executive-in-Council on 10 July 2018 to inquire into the steel reinforcement fixing works and any other works which had raised concerns about public safety in respect of the diaphragm wall and platform slab construction works at the Hung Hom Station Extension under the Shatin to Central Link Project implemented by the MTR Corporation Limited, pursuant to Section 2 of the Commission of Inquiry Ordinance, Cap 86 (“the Ordinance”).

5.  Mr Michael John Hartmann has been appointed as the Chairman and Commissioner of the Commission, and Professor Peter George Hansford has been appointed as co-Commissioner of the Commission.

6.  The terms of reference of the Commission (“the Terms of Reference”) are as follows:

“In respect of the diaphragm wall and platform slab construction works at the Hung Hom Station Extension under the MTR Corporation Limited (‘MTRCL’)’s Contract No. 1112 (‘Contract’) of the Shatin to Central Link Project,

(a) (i) to inquire into the facts and circumstances surrounding the steel reinforcement fixing works, including but not limited to those works at locations that have given rise to extensive public concern about their safety since May 2018;

(ii) to inquire into the facts and circumstances surrounding any other works which raise concerns about public safety; and

(iii) to ascertain whether the works in (i) and (ii) above were executed in accordance with the Contract. If not, the reasons therefor and whether steps for rectification have been taken;

(b) to review, in the light of (a) above,

(i) the adequacy of the relevant aspects of MTRCL’s project management and supervision system, quality assurance and quality control system, risk management system, site supervision and control system and processes, system on reporting to Government, system and processes for communication internally and with various stakeholders, and any other related systems, processes and practices, and the implementation thereof; and

(ii) the extent and adequacy of the monitoring and control mechanisms of the Government, and the implementation thereof; and

(c) in the light of (b) above, to make recommendations on suitable measures with a view to promoting public safety and assurance on quality of works.”

7.  The Commission served “Salmon letters” (ie letters giving advance notice to entities that might be the subject of criticism) on the following parties:

(1)   Transport and Housing Bureau;

(2)   Highways Department;

(3)   Development Bureau;

(4)   Buildings Department;

(5)   MTR Corporation Limited;

(6)   Leighton Contractors (Asia) Limited;

(7)   Intrafor Hong Kong Limited;

(8)   Fang Sheung Construction Company; and

(9)   China Technology Corporation Limited.

8.  The Commission conducted a preliminary hearing on 24 September 2018, and commenced the substantive hearing of the Inquiry on 22 October 2018.

9.  On 7 December 2018, being Day 30 of the Inquiry, Mr Andy Wong was called by the MTR Corporation Limited to give evidence.  The following cross-examination of Mr Andy Wong by Mr Simon So took place, as recorded in the transcript of the proceedings:

MR SO:   Witness, you just told us that in the draft transcript, [darft] page 136, line 8, when you were answering Mr Chairman’s question:

“I won’t speculate on the motive, but if we look at the photos provided by China Technology, and also my photo records, I know who those two people were on that particular day.”

Can you tell us who those two people were?

CHAIRMAN: No, I don’t think that’s necessary.  The purpose of this Inquiry is not to apportion blame for criminal conduct, or civil liability.  I would be content if you were to ask: who did you think employed them?  That question has been asked before and it’s important because we have a number of organisations working on site and one should be differentiated from another, in the public interest.  But I’m not interested in getting close to issues of criminal or public liability.

MR SO:   Of course, sir.  In that case I will rephrase my question.

CHAIRMAN: Thank you.

MR SO:   Regarding those two people – as you said, you can recognise who they were – can you tell us which organisation do they belong to?

A:   I also have photos.  They both work for Fang Sheung.

MR SO:   Thank you.  No further questions.

10.  The Applicant contends that the Chairman of the Commission thereby ruled that:

(1)   the identities of the workers who cut the threaded rebars was not a matter that the Commission was concerned about; and

(2)   the Commission was only interested in the identity of the employer of the workers who cut the threaded rebars.

11.  By this application, the Applicant seeks to challenge the Decision on two grounds, namely:

(1)   illegality; and

(2)   Wednesbury unreasonableness.

DISCUSSION

12.  In my view, the proposed application for judicial review is not reasonably arguable and has no realistic prospect of success, for the following reasons.

13.  First, the Applicant does not have a sufficient interest in the matter to which the application relates, as required by Order 53, rule 7(3) of the Rules of the High Court, Cap 4A.  In the Form 86, the Applicant describes himself as “a 19-year-old Hong Kong permanent resident”, who “currently resides in the Chai Wan district and is a Year 2 student of Bachelor of Social Science (Psychology) in the Chinese University of Hong Kong (‘CUHK’)”, and states that “[i]n order to benefit from the student octopus card’s half-price discount, the Applicant travels on a regular basis by MTR between Chai Wan and CUHK”.

14.  At paragraph 65 of the Form 86, the Applicant says that he has sufficient locus because:

(1)   The Commission is a holding a public inquiry.  More importantly, it is set up to resolve matters that “concerns the general public” as clearly stipulated in the terms of reference.

(2)   The Applicant has additional interest as he would have to pass through Hung Hom Station.

(3)   It is not a strict bar that an applicant could not bring an application for judicial review if “some better placed challengers” exist.  The court, in a holistic exercise, should consider whether the better placed challengers are willing to bring an application for judicial review.

15.  I previously had the opportunity to consider the applicable principles on the issue of locus standi, or standing, in matters of judicial review in Kwok Cheuk Kin v Commissioner of Police [2017] 6 HKC 93, at paragraphs 32 to 34, and do not propose to repeat the discussion here.  I fail to see how, on any view of the matter, the Applicant can be said to have a sufficient interest in the matter to which the application relates.  Not only are there much better placed challengers, including China Technology Corporation Limited, Fang Sheung Construction Company and other interested parties who participate in the Inquiry, in existence (and there is no evidence to suggest that they are not willing to apply for judicial review if the application has any merits), the identities of the two workers who allegedly took part in cutting the threaded rebars in the course of the construction of the diaphragm wall and platform slab at the Hung Hom Station Extension under the Shatin to Central Link Project is simply not a matter in which I consider the Applicant has any legitimate interest.

16.  Second, generally speaking, judicial review does not lie in respect of an “intermediate” or “procedural” decision which does not give rise to any substantive consequence or is not a decision of a “decisive nature” (see Financial Secretary v Wong (2003) 6 HKCFAR 476, at paragraphs 13, and 93 to 95).  The Decision in the instant case plainly falls within such categories.  It needs to be emphasised that it is no part of the court’s supervisory jurisdiction in judicial review to micro-manage the conduct of the Inquiry.

17.  Third, the proposed grounds of judicial review have, in any event, no merits.

18.  In so far as it is said that the Decision is illegal, it is important to note that the Commission has wide powers to determine questions of relevance and admissibility of evidence in the Inquiry. Under Section 4(1) of the Ordinance, the Commissioner may, for conducting inquiry generally:

(1)   receive and consider any material whether by way of oral evidence, written statements, documents or otherwise, notwithstanding that such material would not be admissible as evidence in civil or criminal proceedings (sub-paragraph (a));

(2)   determine the manner in which such material shall be received and what persons or class of persons shall be permitted or required to give evidence (sub-paragraph (b)); and

(3)   examine on oath, affirmation or otherwise any person attending before the Commission and require such person to answer all questions put by or with the consent of the Commission and produce any article or document in his possession or under his control (sub-paragraph (g)).

19.  Further, under Section 5 of the Ordinance, the Commission may:

(a)    order the manner in which any person shall give his oral evidence and may specify that this shall be by way of cross-examination without any examination-in-chief; and

(b)   determine who may address the Commission, on what matters and in what order.

20.  Finally, under Section 11 of the Ordinance, every inquiry held under the Ordinance shall be deemed to be a judicial proceeding.

21.  It cannot, in my view, sensibly be argued that a decision by the Commission that a particular piece of evidence is, or is not, relevant to the Inquiry is “illegal”, regardless of whether one agrees with the decision.

22.  In so far as it is said that the Decision is Wednesbury unreasonable, I respectfully agree with the Chairman of the Commission that the identity of the two workers who allegedly took part in cutting the threaded rebars is not relevant to the matters which the Commission has been set up to inquire into as set out in the Terms of reference.  The Applicant argues that the Commission should receive evidence on the identities of the workers because they form part of the “facts and circumstances” which the Commission has been tasked to inquire into.  It is important to note, however, that the purpose of inquiring into the relevant facts and circumstances is to enable the Commission to:

(1)   review “the adequacy of the relevant aspects of MTRCL’s project management and supervision system, quality assurance and quality control system, risk management system, site supervision and control system and processes, system on reporting to Government, system and processes for communication internally and with various stakeholders, and any other related systems, processes and practices, and the implementation thereof” and “the extent and adequacy of the monitoring and control mechanisms of the Government, and the implementation thereof” (under paragraph (b) of the Terms of Reference); and

(2)   make recommendations on “suitable measures with a view to promoting public safety and assurance on quality of works” (under paragraph (c) of the Terms of Reference).

I do not consider that the Commission would need to know the exact identities of the two workers who allegedly took part in cutting the threaded rebars in order to carry out such review or make such recommendations.

DISPOSITION

23.  In the circumstances, I consider it to be clear that the application ought to be dismissed, instead of being allowed to be withdrawn.  Accordingly, the application for leave to apply for judicial review is dismissed, with no order as to costs.