LO HOM CHAU v. DIRECTOR OF MARINE AND ANOTHER

HCAL 59/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 59 OF 2009

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DECISION

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1.  This is an application, made by Mr Koo Sze Yiu as a (putative) interested party, to be heard at the substantive hearing of the present application for judicial review, to argue certain new points not raised by the applicant.  Pursuant to directions given by the Court, the matter is dealt with on written submissions.

2.  On 25 May 2009, the applicant applied for leave to apply for judicial review.  He sought leave to challenge the decision of the Director of Marine made on 1 May 2009, which had the practical effect of preventing the applicant from sailing his vessel to the Diaoyutai Islands for staging a protest demonstration there.  He relied on constitutional as well as standard administrative law grounds in support of his application.  The application for leave was opposed and it was heard on 14 August 2009.  At the end of the hearing, the Court gave leave to apply for judicial review on some but not all of the grounds.  Essentially, the Court only permitted the applicant to rely on two grounds in support of his application for judicial review.  Those two grounds raised questions of statutory construction and of whether the Director had taken into consideration irrelevant matters.  No constitutional grounds were permitted to be raised.  The reasons for the Court’s decision were fully set out in the ex tempore judgment it gave and they will not be repeated here. 

3.  Following the grant of leave on that limited basis, the substantive hearing was fixed for 24 March 2010, and notices of hearing dated 5 November 2009 were issued accordingly.

4.  By his letter dated 9 March 2010, Mr Koo makes the application described above.  He says that he was hired to be a crew member of the applicant’s vessel in the intended voyage.  He claims that by reason of the Director’s decision, he was prevented from leaving the waters of Hong Kong to sail to the disputed waters off the Diaoyutai Islands for fishing – “as an act of asserting on behalf of the People’s Republic of China, its sovereign rights over the said Islands and challenging Japan’s claim over them”.

5.  He wishes to be heard on three new grounds in support of the challenge:

(1) Unconstitutionality: breach of articles 31 and 39 of the Basic Law and article 8(2) and (3) of the Hong Kong Bill of Rights/article 12(2) and (3) of the International Covenant on Civil and Political Rights (ICCPR) regarding the freedom to travel or leave the Hong Kong Special Administrative Region;

(2) Unconstitutionality: breach of articles 25, 27 and 39 of the Basic Law and article 8(3) of the Hong Kong Bill of Rights/article 12(3) of the ICCPR concerning the freedom to travel or leave the Hong Kong Special Administrative Region, discrimination[1] and the freedom of expression;

(3) A more stringent test than the traditional Wednesbury unreasonableness test should be employed to decide whether the Director has taken into account an irrelevant consideration, namely, the proposed destination of the vessel.

6.  There cannot be any doubt that the Court retains a discretion on whether to hear Mr Koo at the substantive hearing on the new points sought to be raised. 

7.  The Court has taken into account the entire circumstances of the case.  The more important considerations are set out below.

8.  Mr Koo’s application is a very late one.  It was made two weeks before the scheduled hearing of the substantive application.  On the facts supplied by Mr Koo, who, like the applicant, is a known political activist, he must have been aware of the present proceedings for a long time, if not from day one.  After all, according to Mr Koo, he was hired to be a crew member of the applicant’s vessel.  The letter of 9 March 2010 making the application was the first contact by Mr Koo with the Court in relation to these proceedings.  Before that, the Court had had no idea whatsoever of Mr Koo’s interest in the proceedings or of his intention to apply to raise the new points, which came without any prior hint.  There is no assertion that Mr Koo has only come to learn about the present proceedings recently, nor is there any explanation why the application was not made earlier.  The grant of leave was reported in the media.  The judgment of 14 August 2009 is freely available on the internet.  Moreover, even the Form 86 is open to public inspection for a humble fee.

9.  The points sought to be raised are new ones, which have never been relied on by the applicant.  If they are allowed to be raised, the respondent will have very little time to prepare for the same.  Further evidence, such as that on justification and (alleged) discrimination, may have to be filed.  In those circumstances, either the substantive hearing will have to be adjourned, or the parties and the Court will have to deal with the new issues in haste, neither of which is an attractive option.  In any event, the substantive hearing has been fixed for one day only, which will probably be insufficient to hear all the issues raised, and adjourning the hearing part-heard is not an alternative worthy of serious consideration. 

10.  Moreover, the hearing date on 24 March 2010 is, in substance, a milestone date (cf Order 25, rule 1B(8)(a)(iii), the Rules of the High Court, Cap 4A).  It should not be disturbed save in exceptional circumstances, although one does bear in mind that what is involved is not a piece of private law litigation but a public law dispute.  In this regard, the Court must bear in mind the underlying objectives of court procedures set out in Order 1A, rule 1; the application by the Court of those objectives pursuant to rule 2 and the primary aim of the exercise of the Court’s relevant powers set out in rule 2(2); the duty, laid down in rule 3, of the parties to the proceedings to assist the Court to further those objectives; and the Court’s own duty to further the same by active case management as required in rule 4. 

11.  The greater the general importance of the new points (as Mr Koo contends), the less desirable it is to hear them in a hurry, in terms of the proper formulation of issues, filing of evidence, adequate preparation of arguments and thorough debate of all relevant issues at the hearing.

12.  Nor is there any real urgency to have the new points dealt with in the present proceedings. 

13.  Furthermore, if the applicant should succeed on the existing points relied on by him at the substantive hearing, the new points raised by Mr Koo would become entirely academic.

14.  The court’s strict approach to new points belatedly raised by an applicant for judicial review is well established:  Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 340E-F to G; Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corporation, HCAL 12/2009, 21 September 2009, para. 11; Wong Hing Kong v Urban Renewal Authority, HCAL 34/2009, 14 October 2009, paras. 39-40; Popular Signs Ltd v Radiation Board, HCAL 53/2008, 12 January 2010, para. 100.

15.  On the facts of the present case, if these last-minute new points had been raised by the applicant himself, it is difficult to see how he would have been able to persuade the Court to allow him to run them at the substantive hearing.  Of course, depending on the facts of a particular case, the position of an interested party may or may not be the same as that of an applicant.  However, on the facts of the present case and on the materials put forward by Mr Koo, he simply is not in a much better position than the applicant in this regard. 

16.  To the extent that any arguments contained in Mr Koo’s letter dated 9 March 2010 may be run within the existing framework of the applicant’s case as set out in the Form 86, the applicant is at liberty to run them by himself, without the further involvement of Mr Koo at the substantive hearing together with its attendant costs.

17.  The Court has borne in mind the merits of the new points.

18.  The Court has borne in mind the interest of Mr Koo in the subject matter of the present application for judicial review, and how he has been allegedly affected by the decision under challenge.  In particular, the Court takes into account the fact that the Director’s decision does not in any way restrict Mr Koo’s freedom and right to depart Hong Kong by any other lawful means, or to join any protest demonstration in the disputed waters off the Diaoyutai Islands from any third country or territory, whether on board of any vessel or otherwise.  Although according to Mr Koo, the constitutionality of some statutory provisions are in issue, yet unlike the situation in cases like Leung v Secretary for Justice [2006] 4 HKLRD 211, sailing to the Diaoyutai Islands on board a fishing vessel is not a daily occurrence for anybody, including Mr Koo.   

19.  As said, the Court has taken into account the entire circumstances of the case.  The above matters are simply the more important considerations that the Court has borne in mind.

20.  Having done so, the Court has come to the conclusion that the application of Mr Koo should be refused.  The Court so orders.

21.  The Court has not found it necessary to call upon the Director to make submissions, whilst the applicant has submitted a short letter in support of Mr Koo’s application.  By way of a costs order nisi, I make no order as to costs.  The applicant’s costs and the Director’s costs in relation to Mr Koo’s application shall simply form part of their respective costs of these proceedings.

22.  The Court also directs that the automatic stay resulting from the filing (on 12 March 2010) of a memorandum of notification of an application for legal aid (by Mr Koo) dated 10 March 2010 be lifted generally, so that the substantive hearing shall proceed as scheduled.

[1]  In gist, Mr Koo complains that the Director has exercised his power in a discriminatory fashion, targeting only those who wish to sail to the islands to stage protest demonstration.