SHIU WING STEEL LTD v. DIRECTOR OF ENVIRONMENTAL PROTECTION

HCAL184/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.184 OF 2002

---------------------

----------------------

----------------------

D E C I S I O N

----------------------

1. This is an application by summons by Shiu Wing Steel, the applicant in a judicial review against the Director of Environmental Protection ("the Director") (and the Airport Authority of Hong Kong ("HKAA"), as an interested party), for leave to re-amend its application for judicial review and to serve further evidence.

2. The decision being challenged is that of the Director on 28 August 2002 granting an Environmental Permit for the construction of a permanent aviation fuel farm ("PAFF") next to Shiu Wing Steel's steel plant near Tuen Mun, New Territories.

3. The relevant chronology is as follows :

(a) On 13 July 2002, prior to the decision, the applicant wrote to the Director setting out its objections to the PAFF.

(b) On 21 October 2002, after the decision, the applicant wrote to the Director and the Town Planning Board repeating its concerns and enclosing the "Mclnnis" report in support.

(c) On 1 November 2002, the applicant filed for judicial review which was granted on 13 November 2002. The Mclnnis report was included in the application for leave.

(d) On 5 February 2003, the Director filed its evidence in response which included a further report, the "Shell" report.

(e) On 12 February 2003, the HKAA filed its evidence in response which included a further report, the "AEA" report.

(f) On 30 May 2003, the applicant notified the Director and HKAA that it intended to make the application which is now before this court, namely to amend its application for leave and file the following further evidence :

(i) an "HSL" (Health & Safety Laboratory, UK) report in substitution for the Mclnnis report;

(ii) an affirmation from Mr T. Maylor, HSL's chief engineer; and

(iii) a report from Mr L. Rostik, a steel expert.

4. The thrust of the objections is that the further evidence was not before the decision maker and, for the purposes of judicial review, it is therefore inadmissible and irrelevant and to admit it would be contrary to legal principles.

5. Having heard counsel for the applicant, Mr Charles Haddon-Cave, QC, counsel for the Director, Mr Benjamin Yu, SC leading Mr Anthony Ismail and counsel for the HKAA, Ms Gladys Li, SC on 23 July 2003, I am persuaded by the cumulative effect of the following factors, that leave to amend should be granted and the evidence admitted de bene esse.

Reasons :

(1) Granting such leave is an exercise of the court's discretion. The reasons which follow have weighed in favour of that discretion being exercised in the applicant's favour.

(2) The HSL report is not an additional report. It replaces the Mclnnis report.

(3) The HSL report does not disagree with the Mclnnis report, it focuses on, reinforces and enlarges upon that part of the Mclnnis report upon which the applicant relies and has always relied.

(4) The Mclnnis report, the Shell report and the AEA report all themselves post-date the decision under challenge.

(5) The applicant's case for judicial review has not altered. Its grounds remain the same. The decision being challenged is the same and the relief sought is the same.

(6) The effect of the HSL report should be to narrow the issues not widen them.

(7) The prejudice to the Director and the HKAA, if any, is minimal. It remains open to them to challenge the admissibility and relevance of the further evidence at the hearing. The parametres of judicial review proceedings are well defined and the court, at the hearing, will be better placed to decide whether any of the evidence falls outside those parametres.

(8) The respondent's and interested party's concern that admitting the HSL report will cause the judicial review to "go off the rails" is misplaced. The court is aware of its task in these proceedings and will no doubt be reminded again by counsel at the hearing that the court is not so much concerned with the correctness of the decision but with the way in which it was reached. The court will strive to keep it "on the rails" at all times.

(9) Recent decisions suggest that post-decision material may be admissible where the applicant is complaining that the original inquiry was defective because it failed to consider important materials and facts which could have been elicited at the time. The HSL report falls into this category.

(10) It is at least arguable that the contents of the HSL report are directly relevant to the challenges to the decision, as set out in the application.

(11) In view of all the above matters, it is worth noting that the risk of an injustice, however remote, is greater if the application is refused than if it is granted. I acknowledge however that taken on its own and in isolation, this general comment would not provide sufficient reason for exercising the discretion in the applicant's favour.

6. I informed counsel that the court's reasons would be brief. They are brief because the parties need to know the court's decision as soon as possible, the judicial review itself being six weeks hence. All parties have expressed concern that the hearing will not be adjourned.

7. In this context, I make the following remarks and directions :

(1)	The hearing due to commence on 5 September 2003 -
	Any application to adjourn the hearing should be treated unsympathetically and only granted for exceptional and unforeseen reasons. If any party regards the five-day estimate as insufficient, it should inform the other parties and the court at least 21 days before 5 September 2003. The court will hear the judicial review to a conclusion should it overrun. It will not be adjourned part heard, again, unless exceptional and unforeseen reasons emerge.
	Given the court's task in judicial review proceedings, I can see no grounds, at present, to allow witnesses to be called to give evidence, should any such application be made. Neither am I likely to accede to any request to view the locus in quo.
(2)	Further and better particulars -
	If, before 5:00 p.m. on Friday, 1 August 2003, the applicant receives a request for further and better particulars, from the director and/or the HKAA, concerning which parts of the HSL report the applicant intends to rely on and in relation to which grounds of its application for judicial review, the applicant shall respond with a high degree of particularity on or before Friday, 15 August 2003.
(3)	As this court has yet to determine the extent of the relevance of the HSL report to its tasks on judicial review, I shall reserve all issues of cost to be determined at the conclusion of the review itself.
(4)	No separate issues arise out of the affirmation of Mr T. Maylor and the report from Mr Rostik. Pragmatism requires that no distinction is made between them. This decision applies to all three documents which are the subject matter of the application.