GLORY SUCCESS TRANSPORTATION LTD v. SECRETARY FOR JUSTICE AND OTHERS

HCMP 2059/2008

N THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2059 OF 2008

(ON AN INTENDED APPEAL FROM HCAL NO. 93 OF 2006)

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D E C I S I O N

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Hon Rogers VP:

1.  On 21 September 2006, Hartmann J gave leave to bring judicial review proceedings.  There was no written decision or even, it would seem, an oral decision, other than the fact that leave was granted.

2.  On that application, the Respondent was named as the Secretary for Justice.  Since then there has been a great deal of to-ing and fro-ing as to who the Respondent should be.  At present the Respondent is named as the President of the Legislative Council of the Hong Kong Special Administrative Region in her personal capacity and as representative of all other members of the Legislative Council.

3.  The matter came before Chu J as long ago as September of last year on an application for an order that the Legislative Council of the Hong Kong Special Administrative Region, whose address is situated at the Legislative Council Building, 8 Jackson Road, Central, Hong Kong, be added as the 2nd Respondent to the application for judicial review, and that the notice of motion filed herein on 28 September 2006, the notice of application for leave to apply for judicial review filed on 23 August 2006, and the affirmation of Ng Siu-chun filed herein on 23 August 2006, and the exhibits therein referred to, do stand as against the 2nd Defendant, and that the hearing of the motion be adjourned to a date to be fixed.

4.  On that application, which was heard on 21 February 2008, the judge made the following order:

“ (1)      Leave to the Applicant to add the President of the Legislative Council of the Hong Kong Special Administrative Region in her personal capacity and as representative of all other members of the Legislative Council as a 2nd Respondent to these proceedings;

  (2)      Leave to amend the Form 86A of the notice of motion accordingly;

  (3)      The Secretary for Justice is at liberty to remain in these proceedings as an interested party.”

And then there are further directions given that:

“ (4)      The Applicant’s solicitors shall write and inform the Secretary General of the Legislative Council of the outcome of today’s hearing;

  (5)      The Secretary General of the Legislative Council shall, within 14 days after being notified, lodge with the court and serve on the Applicant his written submission on the costs of the application;

  (6)      The Applicant shall, within 14 days thereafter, lodge with the court and serve the Secretary General his written submissions in reply.”

And there were subsequent directions for a further submission.

5.  On 31 March, following written submissions which had been made earlier that month, the judge handed down her decision on the costs in which she had dealt with some of the questions which arose as to who should be the proper party.

6.  Following the making of the order joining the President of the Legislative Council as the Respondent in her personal capacity, attempts were made to serve.  Then matters became complicated, not only because of difficulties in serving members of the Legislative Council whilst the Legislative Council was in session, but also because of the provisions of the Legislative Council Powers and Privileges Ordinance, Cap. 382, section 6, which prevents service on the President, and also there were difficulties because the lady who was President at the time the order was made was clearly not going to be President thereafter because she was not seeking re-election in last summer’s elections.  So all of these difficulties were facing the Applicant.

7.  The Applicant now applies today for leave to appeal the order of Chu J out of time, but it is, I regret to say, very much out of time, because it seems to me that the important matter which this court must bear in mind in any judicial review proceedings is that judicial review proceedings must be made promptly.  The Rules of Court provide that there is an outer time limit in making application for judicial review, and this court has had cause to consider this matter before.  But implicit in that, it seems to me that any proceedings for judicial review must be prosecuted promptly, and it is no use coming to court saying, “Well, I started my judicial review application promptly, but thereafter, for one reason or another, I haven’t got on with it.”

8.  On this occasion I have to say that it is Mr McCoy SC, who has appeared on behalf of the Applicant, as he has done on the initial application, referred to this as “novel jurisprudence”.  I would simply say, having read Mr Bleach SC’s written submissions on behalf of the Secretary for Justice, that I consider this to be more aptly described as “adventurous jurisprudence”, and that, in my view, weighs on this application, because I do not see that it is right for this court to extend the time on this occasion.

9.  It is for the Applicant to choose who the Respondent should be.  It is for the Applicant, on advice, to do so.  It is not for the court to pick the Respondent to any particular application.  It is not for the court to give advice as to it.  It is for the Applicant to make up its own mind and to take proceedings as it sees fit.

10.  On this occasion, I regret that the delay in bringing this appeal is too long, and I do not consider that this court should extend time, particularly as this is a judicial review application; and I do not see that the underlying merits of the application itself should deter the court from coming to that conclusion.

11.  In my view, therefore, this application falls to be dismissed.

Hon Le Pichon JA:

12.  I agree with the judgment of the Vice-President.