CHENG KAR-SHUN AND ANOTHER v. HON LI FUNG-YING, BBS, JP AND OTHERS

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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J U D G M E N T

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1.  The most important consideration, from the Court’s perspective in the interest of the proper administration of justice, is that all relevant extrinsic materials that the Court can and indeed should look at in discharging its duty to construe the subject provisions in the Basic Law must be placed before it.  I think that is the most important matter that has arisen out of this morning’s hearing.

2.  To that end, the Court has to ensure that the parties have done their best to dig out the relevant extrinsic materials and place them before the Court.

3.  One of the respondents, Mr Leung, has apparently done so, and he now applies for leave to put in the materials that he and his team have managed to dig out to place them before the Court.  The Court is slightly concerned that the other parties have thus far not given this matter their most serious consideration.  The Court can only speak from its own impression.  It is not interested in finding out what has exactly happened –many of the matters may concern privileged advices and communications.  The Court does not want to go into those matters.

4.  Taking the situation as it is, the best the Court can do, apart from reminding the parties of the importance of placing all relevant extrinsic materials before the Court, is to allow the parties a further chance to produce them if they have not been included in the materials that Mr Leung now wishes to place before the Court, and the Court must give the parties time to do so.

5.  Having considered the original timetable, and having borne in mind the milestone dates, ie the hearing dates on the 17^th and 18^th of this month, the Court takes the view that it can afford to give all other parties, with the exception of Mr Leung’s side of course, until the morning of Monday, say 11 o’clock, to put in further relevant extrinsic materials by way of evidence.

6.  I emphasise the word “relevant” because not all extrinsic materials are relevant or admissible for the Court’s consideration, but the relevant principles have been clearly stated in a number of Court of Final Appeal cases, including Ng Kar Ling v Director of Immigration (1999) 2 HKCFAR 4, 28-29 and Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 223-225, and if there should be any dispute regarding whether any material is relevant or otherwise admissible, as it were, for the Court’s consideration, the matter can be debated at the substantive hearing.

7.  I mentioned putting in those materials by way of evidence.  That means setting out the necessary background of the extrinsic materials in the affidavit or affirmation evidence so that the Court can have the proper context when reading them.  But beyond that, the parties cannot go.  Particularly, no parties should seek to place any interpretation, expert or otherwise, on the contents of the relevant extrinsic materials in the evidence to be put in.  That would be the job of counsel at the hearing.

8.  In other words, the Court is giving all other parties leave until the morning, ie 11 am, on the 10^th, to put in evidence to that limited extent and on that specific basis.

9.  Now, some corresponding adjustments need to be made regarding the lodging of bundles and submissions, but before I deal with them, I need to deal with another application on behalf of the members of the select committee, apart from Mr Leung, to put in the second affidavit of Ms Pauline Ng.

10.  At this morning’s hearing a consensus has emerged regarding the relevance of the matters deposed to in the second affidavit as well as the exhibits exhibited to the affidavit.  It is now the consensus of all that the same is relevant to four and only four matters, namely:

(1) that the power to summons witnesses to appear before the Legislative Council has been exercised before on various occasions, both before and after the promulgation and coming into effect of the Basic Law;

(2) that on all these occasions when the power was exercised, the power was exercised to summons a witness to appear before a select committee, a panel or a sub-committee of the Legislative Council;

(3) that both civil servants and non-civil servants have been so summonsed to appear before a select committee, panel or sub-committee of the Legislative Council without any incident; and

(4) that the number of occasions when such power was exercised as alleged in the first affidavit of Ms Pauline Ng can be confirmed from the contents of her second affidavit as well as the exhibits to the same.

11.  Given that consensus, and on the basis of the consensus only, I am prepared to grant leave to the relevant respondents to put in the second affidavit of Ms Pauline Ng late, and on that basis, I do not see, at least as presently advised, any need on the part of the applicants to put in any evidence in reply, and Mr Pun has not suggested any.

12.  Returning to the adjustments to the original timetable for the lodging of written submissions and bundles, given that evidence will only be completed by 11 am on the 10th, Monday, I think it is only fair that the applicants should be given until the morning of Tuesday to come up with the bundles of documents, and there are quite a number of them.

13.  So I will give the applicants until 10 o’clock in the morning on the 11^th to lodge the bundles of documents and to serve the bundles on the other parties.

14.  In relation to the preparation of the bundles of documents, as indicated at this morning’s hearing, the voluminous exhibits to Ms Pauline Ng’s second affidavit should not be included in the bundles of documents with the exception of the first page of each of the exhibits relating to each of the inquiries in question, which summarises the summonses issued and sets out the identities of the witnesses concerned.

15.  But of course, if, in the unlikely event that somebody needs to refer to the actual exhibits during the course of the hearing, he or she may do so, and the Court does have its own court file to refer to, and certainly the parties have already been served with the second affidavit together with a full set of exhibits.

16.  Regarding the lodging of the applicant’s written submissions and authorities, I am minded to take a realistic approach.  If the extrinsic materials were only to be placed before the Court by 11 am on Monday, ie 10 August, I do not think it would be fair to ask the applicants to come up with their written submissions at any time earlier than the morning of the 12^th, although the applicants should have prepared a substantial part of their written submissions even before having sight of all relevant extrinsic materials from the other side.

17.  So I am giving the applicants until 10 am on the 12^th to lodge and serve their written submissions and authorities. 

18.  I accept that the position is not entirely ideal, and certainly the respondents and the interested party need time to look at the applicants’ submissions and to prepare their own, although again, even without sight of the applicants’ submissions, the respondents and the interested party should have prepared a substantial part of their respective submissions before.

19.  So I am giving the respondents and the interested party until 4 pm on Friday the 14^th to lodge and serve their respective submissions and additional authorities.  By additional, I am excluding those authorities that have already been included in the applicants’ list.

20.  The Court will be flexible with the hearing hours on Monday, ie the 17^th.  If the Court cannot finish reading all written submissions before 10 am on the 17^th, the Court may stand down the matter for an hour or so in order to enable the Court to be fully equipped before starting the hearing, but if the Court manages to read all written submissions by 10 am, the Court will of course start the hearing as scheduled.

21.  But in any event, it is not anticipated that commencement of the hearing on the 17^th will be substantially delayed, so the parties must attend Court at 10 am on the 17^th as scheduled.

22.  The only outstanding thing apart from the question of costs is to give Mr Leung formal leave to file his affirmation for the reasons I have explained in some length in the above judgment.

23.  I give Mr Leung leave to file his affirmation within today.  I dispense with the service of the affirmation on the other parties.

24.  I will give a similar direction in relation to the second affidavit of Ms Pauline Ng.  In other words, I give leave to file the second affidavit within today.  Service be dispensed with.

25.  In relation to Mr Leung’s affirmation, paragraphs 35 and 36 are really matters of submission.  To avoid unnecessary argument at this stage, in the exercise of my discretion, I would exclude those two paragraphs.  So the leave given to Mr Leung to file his affirmation does not include the matters deposed to in paragraphs 35 and 36.  Instead of asking Mr Leung to remake his affirmation, those two paragraphs need only be deleted, and I give leave to do so.

[Submissions on costs]

26.  I think the fairest order today, bearing in mind the court’s new approach to the question of costs, particularly in relation to case management matters, is costs in the cause.  I have borne everything urged upon me so ably by Mr Pun in mind, but in my view, taking a global view of the matter, the issues canvassed this morning are really in the nature of case management and pre-hearing directions.

27.  So I think the fairest and the most appropriate order is costs in the cause. 

28.  I am minded to grant a certificate for two counsel, given the very peculiar circumstances of the case and the exceptional importance of the case to the parties, and given the public interest in the matter as well.

29.  So costs in the cause, with a certificate for two counsel.  That applies to Mr Pun's team as well as to Mr Lee’s team.