SUNEVISION HOLDINGS LTD v. HONG KONG SCIENCE AND TECHNOLOGY PARKS CORPORATION

HCAL 1890/2018

[2019] HKCFI 2178

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1890 OF 2018

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D E C I S I O N

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1.  By the Decision [2019] HKCFI 1752 handed down on 12 July 2019 (“Decision”), I dismissed the applicant’s (“SUNeVision”) application for leave to adduce expert evidence and allowed parts of SUNeVision’s application for leave to rely on certain affirmations at the substantive hearing of the judicial review, dismissing the other parts.

2.  Under the rules, SUNeVision had 14 days, ie up to 26 July 2019, in which to apply for leave to appeal against my decision.  On 25 July 2019, SUNeVision took out a summons, not for leave to appeal, but for an order pursuant to RHC Order 59 r 2B(6) extending the time for it to apply for leave to appeal to the expiry of 28 days after the final determination of the judicial review application in these proceedings (“the extension summons”).  SUNeVision also wrote to this court seeking directions for its application to be dealt with on paper.  By letters dated 26 July 2019, both the respondent (“Corporation”) and the intervener (“Global Switch”) opposed the application, noting that it was within SUNeVision’s rights to make an application for leave to appeal by 26 July if it wished to do so.  These letters came in at a time when I was on leave.  Upon my return, on 5 August 2019 I gave directions for the extension summons to be dealt with based on written submissions to be lodged.

3.  On behalf of SUNeVision it is submitted that since the substantive hearing of the application for judicial review has been fixed to be heard on 16‑19 December 2019, the extension summons is issued in order to avoid disruption to the progress of these proceedings and to save time and costs.  Heavy reliance is placed on Daimler AG v Leiduck, Herbert Heinz Horst [2013] 5 HKC 242, where Recorder Lisa KY Wong SC (as she then was) agreed to adjourn an application for leave to appeal against her interlocutory decision on certain expert evidence made during the trial,[1] and on the decision of Wilson Chan J in Tao Soh Ngun v HSBC International Trustee Limited (HCA 3246/2016 & HCA 355/2018) on 30 November 2018 to extend time for leave to appeal against a decision made during the trial to refuse leave to adduce expert evidence.[2]

4.  SUNeVision submits that depending on the outcome of the judicial review, it may become unnecessary for it to appeal against the Decision or any such appeal may become academic.  It is for the Corporation and Global Switch to demonstrate exceptional circumstances why SUNeVision must pursue the intended application for leave to appeal now and before the substantive hearing of the judicial review.  To require SUNeVision to pursue an appeal at this stage would be contrary to the court’s usual approach, given that the Decision is not in any way decisive of the outcome of the judicial review and the appeal may become unnecessary or academic.  Further, should it eventually become necessary for SUNeVision to appeal against the Decision, it is likely that the additional evidence that would be admitted if SUNeVision succeeded on that appeal would be admitted as additional evidence in SUNeVision’s appeal against the substantive decision in the judicial review (assuming the interlocutory appeal was determined before the substantive appeal itself).  Since the Court of Appeal can consider such new evidence, a rehearing of the judicial review will be unlikely to be necessary even if SUNeVision’s appeal against the Decision is subsequently allowed.  SUNeVision also submits that if it is required to pursue its application for leave to appeal now, and if leave is granted, it may mean that the substantive hearing of the judicial review fixed in December 2019 may have to be adjourned pending the appeal process, which would not be desirable.

5.  The extension summons should, in my view, be rejected.  Both Daimler and Tao Soh Ngun seem to me to concern a materially different situation, where the interlocutory decision is made in the course of the trial or the substantive hearing of the underlying proceedings. In such a situation the court will bear in mind that interlocutory appeals in the course of a trial, necessitating an adjournment of the trial, are entertained only in exceptional circumstances.

6.  This is not such a case.  The Decision was handed down more than 5 months before the scheduled substantive hearing of the judicial review.  If a party wishes to appeal against an interlocutory order, it is normally incumbent upon it to issue an application for leave to appeal within the time prescribed, and to prosecute it with diligence.  I do not accept that it is for the Corporation and Global Switch to justify why SUNeVision should pursue an application for leave to appeal forthwith, let alone that they need to show exceptional circumstances in order to do so.  In my view, the onus falls squarely on SUNeVision to demonstrate why time for application for leave to appeal should be extended in the way it suggests.

7.  It is far from a foregone conclusion that, if SUNeVision had duly applied for leave to appeal, and leave was granted, the appeal would have had to lead to an adjournment of the substantive hearing of the judicial review.  Even if time is relatively short, this is a very different situation from one where an appeal is proposed against an interlocutory decision made during a trial which has already commenced and risks being adjourned part‑heard.

8.  A relevant consideration for deciding whether to extend time is the merits of the proposed appeal.  SUNeVision has not put forward its intended grounds of appeal.  Even in its submissions all that has been said is that it intends to appeal by reason of several briefly stated matters.

9.  The time available between the Decision and the substantive hearing of the judicial review is ample for at least considering whether leave to appeal should be given.  If there are merits in the intended appeal and leave to appeal is granted, the courts, including in particular the Court of Appeal, will then have the opportunity of assessing how the judicial review proceedings and the appellate proceedings should best be conducted, having regard to the case management powers available to the courts.  On the approach that SUNeVision has chosen to adopt, however, one cannot even tell now whether the intended appeal — an appeal against a case‑management type of decision concerning expert evidence and further evidence — has any reasonable prospect of success.

10.  SUNeVision says that depending on the outcome of the substantive decision on the judicial review, it may become unnecessary or academic to appeal against the Decision.  This may be so, but this may be said of many appeals against interlocutory decisions and is hardly a compelling reason for taking the unusual course of extending time for application for leave to appeal against an interlocutory decision to the stage after the substantive judgment.  I reject SUNeVision’s contention that avoiding a potentially unnecessary interlocutory appeal should, as a matter of principle, be regarded as a valid reason to allow the intended appellant to defer seeking leave to appeal until after judgment in the substantive matter.

11.  SUNeVision’s submission that if time is extended and even if it is ultimately successful in appealing against the Decision, a rehearing of the judicial review itself will be unlikely to be necessary, presumes that in that scenario the Court of Appeal will be prepared to receive and consider, on its own and for the first time, not only the further evidence adduced by SUNeVision, but also any further evidence that the Corporation and Global Switch may be permitted to adduce in response.  SUNeVision argues that “there is no reason why the CA will not be in a position to consider any new evidence from the parties in any substantive appeal”, but this seems to me to go against the general reluctance of an appellate court to consider factual and evidential aspects for the first time.

12.  Putting it in another way, SUNeVision’s approach, if acceded to, would deprive the Court of Appeal of the opportunity of case‑managing the interlocutory appeal (if leave is given for it to be brought) so that it can be conducted in the way the Court of Appeal considers most appropriate.  It may be noted that in relation to its application for leave to appeal against another interlocutory decision of mine (namely, the decision not to allow certain amendments to the Form 86: [2019] HKCFI 1253), which may equally become academic or unnecessary if SUNeVision succeeds in the judicial review on the basis of the present Amended Form 86, SUNeVision has on 19 June 2019 applied for leave to appeal and asked the Court of Appeal to determine the leave application and the substantive appeal (if leave is granted) on an urgent basis.

13.  In all the circumstances I am not prepared to accede to the extension summons.

14.  At the end of its submissions, SUNeVision asks, if the extension of time sought is not granted, that this court grants a short extension of 7 days for SUNeVision to issue an application for leave to appeal against the Decision.  This request is declined.  It is a new application not part of the extension summons.  It is SUNeVision’s own deliberate decision to take out the extension summons only one day before expiry of time, and (in the face of vigorous opposition to any extension) not to put in an application for leave within time.  There is no explanation why SUNeVision had not adopted an alternative approach of, for example, issuing an application for leave within time and then applying for deferral of determining the leave application or applying for leave to appeal diligently and, if leave is granted, seeking case management directions for the appeal itself.

15.  The extension summons is accordingly dismissed, with an order nisi that SUNeVision do pay the costs of the Corporation and Global Switch, with a certificate for two counsel.