CHUNG YING KWAI v. TSUEN WAN RURAL COMMITTEE AND ANOTHER

HCAL2485/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO.2485 OF 2000

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D E C I S I O N

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1. The parties attended before me today on a summons issued by the applicant. The applicant asked for the following relief :

(1) the summons dated 21 December 2000 issued by the 2nd respondent be dismissed;

(2) alternatively, the summons be refixed to an earlier date;

(3) leave to the applicant to issue the notice of motion within 14 days; and

(4) further direction as the court may give.

2. The orders I had made were to dismiss the summons of 21 December 2000 and granted leave to the applicant to serve and file the notice of motion within three days.

3. This is a matter concerning the election of village representatives in the New Territories. On 30 November 2000, I granted leave to the applicant to commence judicial review against the respondents but stayed the application until the Court of Final Appeal had rendered its decision in two similar cases. The Court of Final Appeal delivered its decision on 23 December 2000. Two days before the decision, on 21 December 2000, the 2nd respondent, issued a summons, without any supporting affidavit, asking for an order that my earlier order granting leave be set aside. The hearing of that summons is fixed for 4 May 2001. The basis for setting aside my earlier order is, according to the summons, "on the evidence to be filed by the 2nd respondent herein, the undue delay on the part of the applicant in applying for leave for judicial review is detrimental to good administration".

4. Although Ms Fung, counsel for the 2nd respondent, claimed that an agreement had been reached with Mr Yam, counsel for the applicant, that today's hearing was for the purpose of obtaining directions only, this was disputed by Mr Yam. In the absence of a clear agreement to seek directions only, the applicant was entitled to proceed on the summons today. An oral hearing was granted for the application for leave. The 2nd respondent was represented by counsel at that hearing, in which I had specially asked the parties to address me on the question of delay in bringing the application. Irrespective of the nature of that hearing, i.e. whether it was an ex parte or an inter parte hearing, the fact is that counsel for the 2nd respondent had made submission on the questions of delay in bringing the proceedings and prejudice to the Administration. Furthermore, these issues can clearly be raised again when the judicial review is heard. Until now, no affidavit has been filed for the summons to set aside my earlier order. Judicial review should be dealt with as quickly as possible. To wait until May 2001 or relist the hearing date of the summons to an earlier date would only cause further delay in this matter. The appropriate orders that should be made were the ones that I had given.