RE HUI KWOK HUNG, TERENCE CHRISTOPHER MOUNTAIN, MICHAEL REID SCOTT

HCAL 151/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 151 OF 2004

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J U D G M E N T

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Introduction

1.  This is an application made pursuant to RHC Ord. 53 r. 3(10)(a) (“this application”).  The material parts of that rule provide:-

“Where leave to apply for judicial review is granted, then … if the relief sought [in the judicial review] is an order of … certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders”.

2.  The application for judicial review was taken out on 29 November 2004 (“this JR application”).  Leave to apply was granted by Hartmann J. on 1 December 2004 who also directed that this application be heard on 7 December 2004.  For reasons which are irrelevant for present purposes, this application was transferred to me subsequently.

3.  This JR application is brought by the applicants, all of whom are serving civil servants who have been allocated, and reside with their families in, domestic units at one of the non-departmental quarters (“NDQ”) at Mount Nicholson Gap (“ the Mt. Nicholson NDQ”).

4.  In a letter dated 28 August 2004, the respondent gave the residents of the Mt. Nicholson NDQ (including the applicants) notice that they are required to deliver vacant possession of their quarters by 31 August 2005 (“the said notice”).  The reason for such notification was given therein:-

“… the Secretary for the Civil Service … wrote to all officers eligible for [NDQ] announcing the 5-year disposal programme to reduce the stock of surplus NDQ. … The quarters site at [the Mt. Nicholson NDQ] is targeted for disposal in 2005/06 … ” .

5.  The other relevant parts of the said notice state:-

“To facilitate your selection of an alternative quarter, I enclose … a list of quarters which are being advertised and those which we anticipate will become available and will be advertised in the Quarters Allocation Committee (QAC) circulars to be issued …

Date of issue	Closing date	Date of QAC	Period during which
of QAC	for	Meeting	quarters advertised
circular	application		will fall vacant
30.9.2004	2.11.2004	17.11.2004	18.11.2004-12.1.2005
24.11.2004	28.12.2004	12.1.2005	13.1.2005-9.3.2005
19.1.2005	22.2.2005	9.3.2005	10.3.2005-4.5.2005
16.3.2005	19.4.2005	4.5.2005	5.5.2005-29.6.2005
11.5.2005	14.6.2005	29.6.2005	30.6.2005-24.8.2005

If you have not secured the allocation of a replacement quarter by the QAC meeting scheduled for 29 June 2005, you will be directed to move to another quarter which, as far as possible, will be appropriate to your grade … If you do not accept the direct allocation, you will still be required to vacate your quarter before the deadline mentioned in paragraph 2 above [that is, 31 August 2005] and it is up to you to make your own housing arrangements”.

6.  The applicants seek to challenge the said notice “and the associated decision (confirmed by [the said notice]) to dispose of the quarters in 2005/2006” on several grounds including:-

(a)     deviating from established quartering principles;

(b)    acting in excess of powers;

(c)     misconstruing the rules in the civil service regulations;

(d)    acting inconsistently with the applicants’ legitimate expectation;

(e)     acting in breach of the rule of natural justice in depriving the applicants their right to be heard;

(f)     wrongfully fettering of discretion;

(g)     acting in contravention of some of the articles of the Hong Kong Bill of Rights;

(h)     acting in contravention of some of the articles of the Basic Law.

The respondent denies the above and contends the said notice was validly given and the decision to dispose of the Mt. Nicholson NDQ was validly made.

Applicable Legal Principles

7.  The legal principles relevant to this application are undisputed.  The respondent sums them up in its skeleton submissions as follows:-

“An interim stay is, in all but name, a class of prohibitory injunction and operates in exactly the same way as an interim prohibitory injunction.  Accordingly, the basic principles governing the grant of interim prohibitory injunction in the private law context are applicable in a judicial review, subject however to various modifications having regard to the public law dimension of the proceedings.  See Richard Gordon QC, Judicial Review and Crown Office Practice (1999) §§3-666 to 3-669 …

… the Court will almost always find itself engaged in the ‘balance of convenience’ issue …

… For the present purpose, ‘balance of convenience’ means taking whatever course would appear to carry the lower risk of injustice if it should turn out to have been wrong to grant (or refuse to grant) the interim order” (para. 2 to 4 thereof).

Exercising the Discretion in This Application

8.  The major dispute between the parties is whether the applicants’ interest will be prejudiced by the refusal of an interim relief pending the outcome of this JR application: the applicants contend they would be whereas the respondent contends they would not.

9.  The essence of the applicants’ argument is as follows.  No date has yet been fixed for the hearing of this JR application.  Accordingly, it is unknown when this JR application will be heard (and determined).  They need an interim order to stay (at least) the said notice so that, if the hearing of this JR application should be later than 31 August 2005, the applicants would not be required to deliver vacant possession of their respective domestic units.

10.  The respondent argues, on the other hand, that in view of the importance of this JR application, it is likely that the court will give the parties an early hearing date, perhaps sometime in January or February 2005.  In that case, there will hardly be any need for an interim order.

11.  Further, the respondent argues that in any event, an interim order will not serve any useful purpose for the applicants (except for the limited purpose set out below).  This is because (so the respondent submits) the nature of an interim order is “to hold the ring”, that is, to maintain the status quo pending the determination of the substantive matter.  Such an order lapses with such a determination.

12.  Therefore, if the hearing of this JR application should take place before 31 August 2005, the applicants cannot benefit from the grant of an interim order: if the applicants should be successful in this JR application, the decisions under challenge will be set aside; on the other hand, if they should be unsuccessful, it would mean the respondent has all along been acting lawfully.  The applicants will therefore have to act in accordance with the said notice.

13.  Based on the above, the respondent argues that, the applicants have to satisfactorily show that the hearing of this JR application is likely to take place after 31 August 2005 before they may be able to show that an interim order serves a real purpose, namely, that they can continue to stay in the Mt. Nicholson NDQ until the determination of this JR application.

14.  In short, I agree with the respondent’s arguments set out above.

15.  In reply to the respondent’s above arguments, the applicants further argue that the following part of the said notice should be stayed as well:-

“… If you have not secured the allocation of a replacement quarter by the QAC meeting scheduled for 29 June 2005, you will be directed to move to another quarter which, as far as possible, will be appropriate to your grade … If you do not accept the direct allocation, you will still be required to vacate your quarter before the deadline mentioned in paragraph 2 above [that is, 31 August 2005] … ”.

This part of the said notice requires the applicants to act according to the time-table set out therein.  Hence, the relevant deadline is not 31 August 2005, but at least a few months earlier.

16.  The respondent says that this part of the application falls outside the ambit of this JR application and, for that reason, I should reject it.

17.  It is unnecessary to determine the last-mentioned issue.  Those responsible for listing have very helpfully indicated that dates have been made available from the court’s diary for this JR application to be heard before 7 February 2005.  For this reason, the risk of prejudice to the parties is reduced to the extent that I do not consider an interim order to be necessary.

Other Matters

18.  The applicants also submit that the grant of an interim order will not affect public interest.  This does not appear to be disputed by the respondent.

19.  Finally, the applicants argue that if this application is dismissed, the other residents of the Mt. Nicholson NDQ affected by the said notice will conclude that this shows that this JR application has no merit.  I agree with the respondent that, because of the different nature of this application and this JR application, there is no proper basis for so concluding.

Conclusion

20.  This application is dismissed.

21.  For the purpose of assisting the further conduct of this JR application, the following directions are given:-

(a)    there will be a hearing on 7 January 2005 (estimated length of hearing being 1 hour) for considering whether further directions need be given for the hearing of this JR application (including the estimated length of the hearing);

(b)    this JR application is to be heard during the week commencing 24 January 2005 or the week commencing 31 January 2005.  The present estimated length of hearing is 3 days.

Costs Order Nisi

22.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application (including any reserved costs) be paid by the applicants to the respondent, to be taxed if not agreed in any event.