TSANG TAK WAI v. BUILDING AUTHORITY AND ANOTHER

[English Translation - 英譯本]
CACV 104/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 104 OF 2016

(ON APPEAL FROM HCAL NO. 162 OF 2014)

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JUDGMENT

Hon Chu JA (giving the judgment of the Court):

Background

1.  The applicant applies to the Court of First Instance for leave to apply for judicial review on the decision of the Building Authority (‘1^st Putative Respondent’) to refuse Credit Engineering Limited’s application to appoint the applicant to act on its behalf under the Buildings Ordinance (Cap 123).  Chong J gave his judgment on 13 April 2016 dismissing the application.

2.  The applicant lodged the present appeal in relation to Chong J’s judgment.  Currently no date has been fixed for the appeal.

3.  On 3 August 2016 the applicant issued a summons, making the following applications:

(1) to direct the putative respondents to produce ‘document(s) relevant to the case as evidence;

(2) to allow the applicant to submit additional bundle(s) upon receiving the document(s) in question for the Court of Appeal to adjudicate;

(3) to direct the putative respondents to produce ‘any guidance notes of the Contractors Committee, which are documents of the Buildings Department, that have not been altered and deleted, or revised subsequently’;

(4) to direct the putative respondents to produce ‘[the applicant’s] complete records of interview’ dated 8 August 2012, 26 November 2013 and 27 June 2014 that have not been ‘altered, deleted or redacted;

(5) to direct the putative respondents to produce the Secretary’s records on the above dates;

(6) to direct the putative respondents to allow the applicant to ‘inspect whether all the documents held in relation to the present case have been submitted to court for adjudication without any reservation’, and

(7) that costs be paid by the putative respondents.

4.  The applicant and the putative respondents have filed affirmations in relation to the summons, and submitted written submissions in accordance with the directions of the Registrar of Civil Appeals.

5.  After consideration, this Court is of the view that it is appropriate to determine the application without any hearing and on the basis of written submissions only, which is in accordance with Order 59 rule 14A(1) of the Rules of the High Court, Cap 4A of the Laws of Hong Kong.

Basic legal principles

6.  Two legal principles have to be made clear before the Court proceeds to deal with the various applications by the applicant.

7.  First, an appeal is not a second trial of the case.  What the appellate court has to consider is mainly the evidence at trial, and whether the decision of the trial judge is right or wrong: see paragraph 12 in the judgment of Cheuk Shu Yin v. Lo Yeuk Kan (CACV 17/2013, 28 July 2016).

8.  Second, only in exceptional circumstances can parties to legal proceedings adduce evidence which was not produced during trial.  If a party wishes to submit new evidence at the appeal, he will have to comply with the 3 conditions established in Ladd v Marshall [1954] 1 WLR 1489: (1) that even with reasonable diligence, the new evidence intended to be produced could not have been obtained for use at trial; (2) the new evidence intended to be produced will have material effect on the decision of the case; and (3) the new evidence intended to be produced appears credible.

Items (1), (3) and (6) of the application

9.   Items (1), (3) and (6) of the application require the putative respondents to disclose documents to the applicant for the purpose of the appeal.  This Court is of the view that they should not be granted, for the reasons set out below.

10.   First of all, as stated above, the collection and production of evidence should be carried out at trial, and it is inappropriate to collect evidence or request discovery only at the appeal, especially for applications for leave to judicial review, where the applicant has to show that his intended judicial review is reasonably arguable with realistic prospects of success.  The Court of First Instance deals with applications based on the evidence produced by the applicant.  When dealing with appeals arising from the orders of the Court of First Instance, the Court of Appeal is exercising appellate jurisdiction under section 13(2) of the High Court Ordinance, Cap 4 of the Laws of Hong Kong, and not the first instance jurisdiction, therefore it should not consider evidence produced only after a verdict has been given by the trial judge: see paragraphs 49-53 in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

11.   Second, rules 7, 7A and 8 of RHC Order 24 state that a party applying for an order of discovery has to show that: (1) the discovery under request is substantially related to the facts; (2) such information is in the possession, custody or power of the party from whom discovery is sought; and (3) such discovery is necessary either for disposing fairly of the cause or for saving costs.

12.   Items (1) and (6) in the applicant’s application do not state the actual document(s) or the class(es) of document(s) sought in discovery, nor do they state the scope of documents required.  The two items of application are vague, and the scope of documents involved is also too extensive, which does not meet the requirements in (1) and (3) in the above paragraph.

13.   In relation to item (3) in the application, the applicant has mentioned that on 22 July 2015 he filed another Form 86 with the Court of First Instance, requesting the Court to grant additional relief and demanding the putative respondents to disclose the complete records of the interview and related information of the case.  As Chong, J pointed out in paragraphs 34-36 in the judgment, that since the Court had refused to grant judicial review, there were no legal proceedings; therefore, there was no basis for the consideration of an order for disclosure under Order 24 of The Rules of the High Court.  This Court also has to point out that the applicant’s application for discovery by way of a second Form No. 86 does not comply with the procedure for legal proceedings.  The applicant should have applied to amend the Form 86 to add in a new relief or make an application for discovery by way of a summons.

14.   The submissions of the putative respondents have also indicated that the applicant has not been able to show how the guidelines of the Contractors Registration Committee (‘the guidelines’) are related to his appeal.  In his reply, the applicant alleges that it is a crucial document, because it stipulates the questions to be asked by the Contractors Registration Committee (‘2^nd putative respondent’) at the interview, and the questions asked by the 2^nd putative respondent at the interview deviated from the guidelines.  However, this is not a ground for review in the applicant’s application for judicial review.  On the contrary, what the applicant says in the Form No. 86 is that the 1^st putative respondent did not formulate assessment guidelines for the 2^nd putative respondent, leaving the latter to his own devices with no scope and guidance and putting irrelevant questions to make things difficult for the applicant.  Although the applicant has quoted part of the guidelines in paragraph 4 of his grounds of appeal, this is insufficient to overcome the principle against advancing in the appeal new argument(s) and new evidence that are not referred to in the trial.  In this application, the applicant has not put forward any grounds to persuade the Court to deviate from the above principle.

15.   Moreover, the putative respondents had submitted a document on the scope of interview assessment (Practice Notes for Registered Contractors 38), interview assessment form, the audio recording of the interview and the transcript of it at trial.  If the applicant was of the view that the guidelines were also a crucial document apart from the above materials, he should have made an application to the Court of First Instance in time, requesting disclosure by the putative respondents so that it could become one part of the evidence in the application for leave to apply for judicial review.

16.   Regarding item (4) in the applicant’s application, the focus of the applicant’s judicial review is on the 1^st putative respondent’s decision after the interview on 27 June 2014.  There was no direct relationship between the applicant’s two previous interviews and this decision.  There was no substantial relationship between the records of the two interviews and the applicant’s application for leave to apply for judicial review; and there is no necessity to disclose such information when it comes to disposing fairly of the cause or for saving costs.  Moreover, the applicant is unable to comply with conditions (1) and (3) in paragraph 8 above on producing these interview records as new evidence at the appeal.

17.   In relation to the record on the interview on 27 June 2014 (the 3^rd interview), the audio transcript and the assessment form were already disclosed at trial, and those were part of the evidence before Chong J.  However, the names and signatures of the committee members have been deleted.  In their submissions, the putative respondents explained that it was to ensure the committee members’ privacy and protect them so that they can give an assessment at the interview without their names revealed.  Now the applicant requests a record of the interview with no deletions or redacting. However, he has been unable to show how the committee members’ names and signatures are substantially and directly related to his application for judicial review.  One has to note that at this interview, the 6 examining committee members gave different ratings in the 6 different areas of assessment, but they unanimously decided to refuse the applicant’s application.

18.   In relation to item (5) in the applicant’s application, the putative respondents have already replied to the applicant. The 1^st putative respondent did not prescribe that the Secretary of the Committee had to make a record of the course of the interview, nor does the Committee have an official file of the Secretary’s records and related documents.  Although the Secretary of the Committee did take notes during the interview, the notes of the first interview have not been kept.  In such circumstances, this application does not fulfill condition (2) for an order of disclosure to be made (see paragraph 11 above).

19.   Moreover, like item (4) in the application, even if there was a Secretary’s record of the interview, it was not substantially related to the applicant’s application for judicial review and this appeal.  Even if in terms of fair handling of the applicant’s appeal or the saving of costs, there is no need to disclose such information.  This application does not fulfill conditions (1) and (3) for an order of disclosure to be made.

20.   Additionally, even if there was a Secretary’s record of the interview, the applicant would not be able to put forward such information as new evidence at the appeal to fulfill conditions (1) and (2).

Item (2) of the application

21.   Based on the analysis and grounds given above on items (1), (3) and (6) of the application, item (2) of the applicant’s application for submitting additional bundle(s) also fails.

Item (7) of the application

22.   Applying the normal rule of litigation, since the applicant has failed in his application, he shall pay the costs of the putative respondents in relation to this application.  Therefore, the costs application in item (7) fails.

Conclusion

23.   This Court, therefore, refuses the applications submitted by the applicant, and dismisses his summons.

Costs

24.   This Court is of the view that on a party and party basis, there should be downward adjustments in the number of hours spent on items C1, C2, D1 and D2 in the putative respondents’ bills of costs.  After considering all the circumstances and by way of summary assessment, the costs of the two putative respondents in this application have been assessed in the sum of $50,000 by this Court.