RE TSE WAI CHUN PAUL

HCAL 71/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 71 OF 2009

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J U D G M E N T

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1.  The test for granting leave at this stage is one of reasonable arguability, putting aside for the time being the question of extension of time. Having heard counsel’s arguments, I am satisfied that there are matters which require fuller exploration at a substantive hearing.

2.  On the face of it, there is a reasonably arguable case that the clerk to the tribunal in question has participated to some extent in the decision making process. That, by itself, is sufficient to justify the granting of leave to the applicant at this stage. Whether, as a matter of fact, he has done so, and has done so to an unlawful extent, are matters to be fully ventilated at a substantive hearing.

3.  In this regard, I would specifically point out that, according to the latest evidence available, the clerk has done substantial research for the tribunal. On existing authorities, that may not have been a permissible course for the clerk or the tribunal to adopt.

4.  Having said that, I am not suggesting that the matter is not capable of reasonable argument either way. In particular, the case of Kwong Ka Yin, Phyllis v The Solicitors Disciplinary Tribunal, HCAL 93/2004, decided by this Court on 12 July 2006, which is obviously an authority in favour of the applicant on the point that I have just mentioned, was decided without the benefit of adversarial argument. (That said, I am not suggesting for a moment that the Court had not received full assistance from counsel appearing for the applicant in that case.)

5.  But for the purposes of the applicant, the law or the authorities, as they now stand, are in his favour so far as the question of conducting legal research by the clerk is concerned.

6.  I have borne in mind the fact that the disciplinary matter has received appellate scrutiny at two levels. That raises the question of whether the court would, in the exercise of its discretion in judicial review matters, refuse relief even if a case of unlawful participation by the clerk were to be made out by the applicant, and thus leave should be refused on that basis. On this point I am with Mr Dykes SC, Mr Hector Pun with him, for the applicant at today’s hearing, that that is really a matter for the substantive hearing.

7.  I turn to the question of time. Undoubtedly the applicant needs an extension of time. However, given the peculiar circumstances of the present case, that is to say, what has now transpired in the light of the final bill produced by the clerk in March 2009 as well as the affidavit of the chairperson of the tribunal filed with the court late last month, I believe there are exceptional circumstances to justify granting an extension of time in favour of the applicant to enable him to apply for leave to apply for judicial review against the relevant decisions.

8.  So for all those reasons the Court is prepared to grant an extension of time to apply for leave and to grant leave to apply for judicial review. I will hear the parties on the directions, if any, that it would be appropriate to give.

[Discussion re directions]

9.  Costs in the cause.