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

CAMP 135/2019

[2019] HKCA 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 135 OF 2019

(ON INTENDED APPEAL FROM HCAL 1890 OF 2018)

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D E C I S I O N

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Hon Au JA (giving the decision of the court):

A.     INTRODUCTION

1.  On 9 October 2018, the applicant was granted leave by Godfrey Lam J (“the Judge”) to judicially review a decision made by the respondent on 28 May 2018 (“the Respondent’s Decision”).  On 19 February 2019, the applicant took out an amended summons seeking leave to amend the Form 86.

2.  By way of a decision (“the Decision”) dated 9 May 2019, the Judge refused the applicant’s proposed amendments to, among others, add paragraphs 17A, 17B, 37A and 73A (“the subject amendments”)[1] to the Form 86.  Later, by his decision dated 18 June 2019 (“the Leave Decision”), the Judge also refused to grant leave to the applicant to appeal.

3.  This is the applicant’s renewed application before this court for leave to appeal against the Decision in relation to the Judge’s refusal to allow the subject amendments.

4.  On 20 June 2019, this court directed that the application be dealt with on paper.  The parties have since filed their respective written submissions.

5.  To properly understand the subject amendments, it is necessary to briefly set out the background of the applicant’s judicial review challenge.

B.     BACKGROUND

6.  The background facts have been comprehensively summarized by the Judge at paragraphs 2 - 18 of the Decision.  For the purpose of this leave application, we shall only highlight the following.

7.  The applicant, SUNeVision, is a company within a group which has been providing data centre services in Hong Kong.  It has five data centres, including one in Tseung Kwan O (“TKO”).

8.  The respondent, Hong Kong Science and Technology Parks Corporation (“the Corporation”), is a statutory body established by Hong Kong Science and Technology Parks Corporation Ordinance (Cap 565) which operates three industrial estates in Hong Kong, including one in TKO.  The Corporation is in charge of granting parts of the industrial estates by way of lease to specific persons, including data centre operators, at rates much lower than the market rates for equivalent space elsewhere in Hong Kong.

9.  It is common ground that the Corporation published two policies promulgated regulating the leased parts of the industrial estates, the details of which were summarized by the Judge at paragraph 7 of the Judgement:

“7. It is not in dispute that the Corporation has, so far as relevant for present purposes, 2 published policies in respect of its industrial estates, as follows:

(1) The first policy applies to lessees of land in the industrial estates generally (and therefore also to lessees who are data centre operators) and is a policy against subletting or parting with possession. This policy is reflected in clause B(11)(a) of the Corporation’s standard lease which requires the lessee

‘not to assign mortgage charge demise underlet or part with possession of the said premises or any part thereof or any interest therein or enter into any agreement so to do nor to permit any other party by way of a licence or otherwise to occupy the said premises or any part thereof.’ (‘Lease Restrictions’)

(2) The second policy is the admission policy for data centre operators (‘Data Centre Policy’) adopted at the meeting of the Business Development and Admission Committee (‘BDAC’) of the Board of the Corporation at its meeting on 9 February 2010. This has the following elements:

(a) Exclusion (sic) possession shall be retained by the grantee.

(b) The provision of managed services shall be the dominant element of the operation in the premises.

(c) Right of access to the premises shall remain within the exclusive control of the grantee at all times.

(d) The approved use for data centre in the lease shall be “to operate a data centre to provide colocation services as well as Internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management and system management.”

10.  The applicant says the lease policy (which incorporates the Lease Restrictions) and the data centre policy gave rise to a legitimate expectation (“the Legitimate Expectation”) that data centre operator grantees of the Corporation’s industrial estates are not allowed to sublet or part with possession of the leased premises or to license or allow third parties to occupy part of the premises[2].

11.  The applicant further says, under these policies and the Lease Restrictions, the grantees as data centre operators can only operate under what it says is commonly known in the trade as the retail colocation model, in contrast with the wholesale colocation model.  According to the applicant (but disputed by the Corporation and Global Switch), retail colocation model data centres offer very different services and have very different size requirement of the centre space and customer type compared with wholesale colocation model operators.  The technical facility set up, management and technical support for retail colocation data centres are also very different from that for the wholesale model[3].

12.  It is further the applicant’s case that:

(1)  A retail colocation model data centre operator offers one-stop solution to its customers and will be the “managed services provider” (“MSP”)[4] to its customers.  MSP data centre operators would require unrestricted access to their customers’ IT equipment[5].  This would not require subletting or licensing parts of the premises to the operator’s own customers.

(2)  On the other hand, wholesale colocation data centre operators typically do not enjoy unrestricted access to the designated space, and managed services would not typically be provided by them, but instead by either the customers themselves or by customer-approved agencies[6].

13.  The applicant says relying on the Legitimate Expectation, it acquired two plots of land respectively in TKO in 2013 and Tsuen Wan in 2018 at full market price so that it could develop data centres in which it could sublet or license parts of the premises to its customers.

14.  The dispute arose when the applicant became aware of the six events where it said the data centre operator grantees of the respondent’s TKO industrial estate (“TKOIE”) had parted with exclusive possession of the leased premises or had sublet or licensed part of the premises.  The applicant therefore was concerned that, in breach of the Legitimate Expectation, the Corporation was not enforcing the policies and the Lease Restrictions.  These six events have been summarized by the Judge at paragraph 10 of the Decision as follows:

“10.     SUNeVision says that by reason of events over the past few years, it has become concerned that the Corporation has not been enforcing the Lease Restrictions against what SUNeVision suspects to be breaches thereof. Six events that took place between September 2011 and January 2018 are then set out in the Form 86 (§§35‑45). Essentially SUNeVision alleged that several of the Corporation’s lessees in TKOIE had been acting in breach of the Lease Restrictions:

(1)   In January 2018, NTT Com Asia Ltd (‘NTT’) offered services to a cloud computing enterprise that amounted to subletting or licensing part of its premises.

(2)   In April 2017, Global Switch entered into an arrangement with Daily Tech and China Telecom Global Ltd that was or was highly likely to be in breach of the Lease Restrictions.

(3)   In late 2012, HKCOLO.NET Ltd (‘HKCOLO’) entered into an arrangement with IBM that was or was likely to be contrary to the Lease Restrictions.

(4)   In September 2011, HKCOLO successfully bid for the provision of data centre services to a public authority on terms which suggested HKCOLO would not retain exclusive possession — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.

(5)   In October 2011, HKCOLO successfully bid for the provision of data centre services to a financial institution on terms which suggested HKCOLO would not retain exclusive possession — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.

(6)   In March 2015, NTT won a bid to provide data centre services to a financial institution on terms which suggested the financial institution would be in control of access within the designated space — an arrangement that was or was highly likely to be contrary to the Lease Restrictions.”

15.  On 6 April 2018, through its solicitors, the applicant wrote to the Corporation and listed out these six events.  It further demanded the Corporation to, among other things, take reasonably effective measures to ensure the discontinuation of all existing breaches of the Lease Restrictions.

16.  By the Respondent’s Decision, the Corporation refused the applicant’s demand and stated to the effect that[7]:

(1)  There had been no change of relevant policies and no policy of condonation of breaches.

(2)  The business model operated by the grantees in the six events, which allowed the customers to place equipment on the sites so that the customers could enjoy the services of the data centres, did not give those customers exclusive control of the premises and thus did not amount to a breach by the grantees of the Lease Restrictions.

(3)  Intended grantees were required to submit a pro forma draft service agreement to ensure that there was no breach of the Lease Restrictions.

(4)  The Corporation had carried out regular inspections of the sites.

(5)  Based on its regular site inspection at the industrial estates, the Corporation was not aware of the alleged breach of the Lease Restrictions by the grantees.

(6)  The Corporation denied it had acted in contravention of the applicant’s alleged legitimate expectation.

17.  By way of this judicial review, the applicant seeks to challenge the Respondent’s Decision.  The Judge correctly summarized the grounds of review (in respect of which leave was granted) as follows[8]:

(1)  The Corporation had not in fact been enforcing the Lease Restrictions and had therefore breached the Legitimate Expectation, which led to substantial unfairness to the applicant[9].

(2)  The Corporation erred in law in considering that the Lease Restrictions would not be breached so long as services had been provided, and that exclusive possession would be retained as long as the data centre operator had the right to “allocate different areas in the granted site for the installation of their customers’ servers or to relocate the same”.  It would be a misdirection insofar as the Corporation assumed that the provision of colocation of services in the data centre industry necessarily required the operator to part with possession[10].

(3)  The Corporation misconstrued its own policy and failed to appreciate that the policy was in effect to allow the Grantees to operate under the typical retail colocation model but not the typical wholesale colocation model, and failed to take into consideration the terms and conditions between the Grantees and their customers which conferred right to possession and/or right of occupation[11].

(4)  Despite the applicant having drawn attention to the specific alleged breaches by NTT, Global Switch and HKCOLO, the Corporation failed or refused to take steps to inquire into the facts and to take necessary actions[12].

(5)  The grant of an increase of plot ratio and extra gross floor area to Global Switch in circumstances where Global Switch would be using such extra gross floor area in effect for subletting would not be an exercise of power for the purposes sanctioned by the Ordinance and would be a breach of the Legitimate Expectation or Wednesbury unreasonable[13].

18.  After leave was granted by the Judge to the applicant to challenge the Decision, as mentioned above, the applicant sought to amend the Form 86.

C.     THE DECISION

19.  By way of the Decision, the Judge refused the subject amendments at paragraphs 17A, 17B, 37A and 73A.  In doing so, the Judge has borne in mind the approach laid down in AA and Another v Securities and Futures Commission.[14]

20.  In relation to paragraphs 17A, 17B and 73A, the proposed amendments are as follows:

“17A. The Applicant became aware for the very first time from the affirmation filed by HKSTPC (namely, the 1^st Affirmation of Siu Chik Hung Patrick filed herein on 18 December 2018) that on 9 February 2010, the Business Development and Admission Committee of HKSTPC (‘BDAC’) held a meeting at which the Paper No. STP/BD/A/10/018 titled ‘Policy on Admission of Data Centre’ (Exhibit ‘PS-12’) (the ‘Feb 2010 Paper’) was considered. The Feb 2010 Paper contains, inter alia, the following statements:

Sub-letting

‘12. Whilst providing collocation services to end-users by the grantee is not in breach of the covenant on restriction against sub-letting, Management considers that a further ‘service reselling’ by a second data centre operator to other end-users does constitute a breach. In the EOI invitation document, we described the collocation services to end-users by the grantee as subletting to the first layer, meaning that the customers shall be the end-users of the space and facilities and not another data center operator.

13. In our recent discussions with the industry and enquirers on data centre, Management recognized that the term ‘first-tier subletting’ is causing confusion and recommended simplifying the user description and restriction in all future admission-related documents for data centre. The following user description was endorsed by BDAC in the same meeting:

• The use shall be to operate a data centre to provide collocation services (as well as internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management and system management) to end-users, (emphasis added)

• The grantee/lessee shall not part with possession of the lot or any part thereof.

......

Legal Advice from JSM

21. ...

(e) As regards the restriction of customer level to that of the ‘end user’, JSM advised that it would pose a difficult monitoring problem for the Corporation if we were to enforce a one-tier relationship between the grantee and the user. In principle, if we only control the services the grantee is providing in its data centre, it does not matter how many ‘intermediates’ are there.

Management’s Remark

22. In view of the above advice, the ‘stipulated use’ as approved by BDAC on 24 July 2009 remains valid except for the intention to restrict the customer level to ‘end user’ as described in paragraph 21(e) above. Management recommends taking away the words ‘to end users’ at the end of the description at paragraph 13 above and the revised version becomes:

• The use shall be to operate a data centre to provide collocation services as well as internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management and system management.

• The grantee/lessee shall not part with possession of the lot or any part thereof.

23. If a data centre applicant meets our scrutiny against the above two bullet requirements, we would be inclined to consider that there is no breach of the restriction against alienation. As such, there is no need to amend the lease condition to suit the operation mode of such data centre use.’

[Emphasis added]

17B. It is apparent from the aforesaid statements in the Feb 2010 Paper (said to have been endorsed by HKSTPC) that whilst HKSTPC had maintained its policies of Restrictions Against Parting with Possession and Restrictions Against Licensing and Sharing of Occupation, it had materially misconstrued and/or misapplied its own policies. In particular and without prejudice to the generality of the foregoing, by removing the words ‘to end users’ from the user description. HKSTPC decided not to give full effect to the Lease Restrictions and was prepared to sanction acts by its grantees (including to use leased premises in the TKOIE for the purpose of serving customers who are not end-users and who would typically require exclusive possession/occupation of such premises) that would result in the breach of its own policies.

...

...

73A.    It is also evident from the Feb 2010 Paper that HKSTPC, whilst maintaining that the Lease Restrictions required no amendment to suit the operation mode of data centre use, had misconstrued/misapplied its own policies and/or departed from them by internally deciding that approved use for data centre did not require that the services must be provided to end users (see paragraphs 17A and 17B above).”

21.  In gist, under these amendments, the applicant proposed to add the details of a paper discussed at the BDAC meeting held on 9 February 2010 (“the Feb 2010 Paper”), in which the BDAC decided to remove the phrase “to end-user” from the policy to be promulgated.

22.  The Judge refused to allow these amendments and explained his reasons at [46] ‑ [49] of the Decision as follows:

“46. The second group of amendments (paragraphs 17A, 17B and 73A) relate to the BDAC meeting of 9 February 2010. At a previous meeting held in July 2009, the BDAC had considered that if a lessee of the Corporation was to provide data centre access to an entity which was not itself an end-user but which in turn provided data centre services to its customers, there would be a breach of the Lease Restrictions. Accordingly, the BDAC at that stage considered that the user of a site within the industrial estates for data centre should be:

‘to operate a data centre to provide collocation services (as well as Internet connectivity and other networking services, managed and outsourcing services on facilities, data centre management and system management) to end‑users.’ (emphasis added)

At its meeting on 9 February 2010, the BDAC, after taking legal advice and after further deliberation, decided to remove the phrase ‘to end‑users’ from the policy to be promulgated.

47. SUNeVision seeks to rely on the paper relating to the 9 February 2010 meeting to suggest that the Corporation’s policies, properly construed, had the effect of restricting customers of data centres to end‑users only. SUNeVision seeks to argue that in deciding to remove the end‑users limitation at that meeting, the BDAC and hence the Corporation misconstrued the Lease Restrictions or misdirected itself in relation to their effect.

48. This seems to me to be misconceived. SUNeVision has not advanced any case based on a policy of an end‑users limitation. The only policy alleged to exist based on the Lease Restrictions does not expressly contain the end‑users limitation. There is no suggestion that the previous resolution that included the end‑users limitation had been published. It was simply part of the ongoing deliberation process within the Corporation. It was open to the Corporation to decide what policy to adopt provided they made no error of law.

49. It was SUNeVision’s case that the Corporation erred in law in construing and applying its own policies as promulgated and the Lease Restrictions, and that their meaning is a matter for the court: Shiu Wing Steel Ltd v Director of Environmental Protection and Airport Authority (No 2) (2006) 9 HKCFAR 478, §§26‑30.  On that case it is not useful to refer to an internal, temporary position previously taken by the BDAC, which is not relevant to the court’s determination of the question of law.  It seems to me the proposed amendments would simply lead to obfuscation of the real issues.  Accordingly, these amendments should also be rejected.”

23.  In summary, the Judge refused these amendments on the basis that they were irrelevant to the issues of the proper construction of the relevant policy (which is a question of law) as raised in the judicial review since (a) the applicant has not advanced any case based on a policy of an end-users limitation; (b) in any event, the proposed amendments only evidence an on-going deliberation within the Corporation; and (c) further, as the proposed amendments related to an internal and temporary position previously taken by the Corporation, they would only lead to obfuscation of the real issues.

24.  For paragraph 37A, the proposed amendments are as follows:

“37A. As part of Global Switch’s application for lease of premises in TKOIE and in response to HKSTPC’s request for clarifications. Global Switch submitted a written document to HKSTPC in around April 2012 containing, inter alia, the following statements which indicated that Global Switch’s intention was to use me leased premises in a manner which would be inconsistent with the Policy and the Lease Restrictions:

(1) Global Switch ‘owns the largest wholesale carrier neutral data centres in each of the important markets in which it operates in Europe and Asia‑Pacific’ (p.4).

(2) ‘It is the intention that Global Switch’s data centre in Hong Kong will become the largest wholesale carrier neutral data centre in this important marketplace’ (p.4).

(3) In the table at p.16:

(i) Under ‘Terms of Occupation’: ‘The space is allotted to the customer to occupy as a licensee only’:

(ii) Under ‘Occupied Area’: ‘The customer is allocated a power capacity which is allotted to a “customer space”. The definition of space does not include any detail of the extent of the demise included which is typical of a licence arrangement’;

(iii) Under ‘Relocation of Occupied Area’: ‘Global Switch has the ability to relocate the customer to a different area within the data centre from time to time on giving notice to the customer. This is typical of a licence arrangement’.

(4) ‘Currently Global Switch can offer managed services via its customers, most of whom provide managed services as a core business.’ (p.24)

(5)   ‘In addition, due to its ownership of the building infrastructure and the commercial relationships held with carriers and other MSP customers. Global Switch has developed and will continue to develop, its own wholesale managed services ...these wholesale managed services will only be offered to existing customers within the data centre. These customers will be able to use the services themselves or re-badge them and offer them to third parties on an ad hoc basis.’ (p.24)”

25.  Paragraph 37A therefore concerns a document back in 2012 when Global Switch responded to the Corporation’s request for clarifications in the course of its application for lease of premises in TKOIE (“2012 Document”).  The applicant says the various pleaded statements in the 2012 Document would show how Global Switch intended to operate the data centre in TKOIE and that such manners of operation would violate the Lease Restrictions.

26.  The Judge rejected this proposed amendment[15] as he was of the view that whether there was a breach of the Lease Restrictions depended on the arrangements between Global Switch and its customers as they appeared to the Corporation but not on the particular wording of a 2012 document.  See: [50] - [51] of the Decision.

D.    THIS APPEAL

D1.   Grounds of appeal

27.  In the draft Notice of Appeal, the applicant advanced the following grounds of appeal:

(1)  The Judge erred in refusing to allow the amendments at paragraphs 17A, 17B and 73A by reason that the applicant “has not advanced any case based on a policy of an end-users limitation” at paragraph 48 of the Judgement (“Ground 1”);

(2)  The Judge erred in regarding the Feb 2010 Paper as being merely “an internal, temporary position previously taken by the BDAC” and in regarding it as not relevant to the court’s determination of the meaning of the Lease Restrictions (paragraph 49 of the Judgement) (“Ground 2”);

(3)  The Judge erred in refusing to allow the amendments at paragraphs 37A at paragraph 51 of the Judgement and the Judge ought to have concluded that the 2012 Document at paragraph 37A is relevant to the applicant’s complaint that the respondent had failed to adhere to, misinterpreted and/or misapplied its own policy and the Lease Restrictions (“Ground 3”).

D2.   Discussion

D2.1  Applicable principles

28.  There is no complaint that the Judge has failed to adopt the correct approach as set out in AA v SFC, supra, to consider whether he should allow the subject amendments: once leave to apply for judicial review is granted, the terms and scope of the proceedings are set and material amendments to the grounds for review should rarely occur unless the court is satisfied that the amendments deal with the real dispute between the parties and it is fair and appropriate to allow them in all the circumstances[16].

29.  Further, under section 14AA of the High Court Ordinance (Cap 4), for leave to appeal to be granted, the applicant has to show that the intended appeal has a “reasonable prospect of success” or that there is “some other reason in the interests of justice” why the appeal should be heard.  It is noted that the applicant has not relied on the second limb to support the present application.

30.  Bearing these in mind, we now turn to consider the grounds of appeal.

D2.2  Grounds 1 and 2

31.  Grounds 1 and 2 relate to the refusal of the proposed amendments under paragraphs 17A, 17B and 73A concerning the applicant’s reliance on the Feb 2010 Paper.  Mr Yu SC (leading Ms Tong and Ms Yu) argues that the proposed amendments are to show that the respondent has misconstrued its own policy, which led to a wrongful failure to enforce and the assessment of the Lease Restrictions as demonstrated in the Respondent’s Decision[17].

32.  In elaboration, Mr Yu submits that, as shown in the Feb 2010 Paper, the respondent itself recognized that whether the grantees of TKOIE served customers who were end-users would be determinative as to whether the Lease Restrictions were breached.  However, after taking legal advice that the “end-users limitation” might impose “difficult monitoring problem”, the respondent decided to remove the phrase “end-users” from the promulgated data centre policy.

33.  In the premises, Mr Yu contends that, contrary to the Judge’s conclusion, the proposed amendments are relevant to the real issues of dispute because the discussions recorded in the Feb 2010 Paper as evidence show that the “end-users limitation” were part of the material considerations for enforcing the Lease Restrictions and the respondent had misconstrued its own policies by not taking into account this “end-users limitation” when making the Respondent’s Decision.

34.  With respect to Mr Yu, we are not persuaded.

35.  In considering these amendments, it is pertinent to note the context under which the Feb 2010 Paper was presented and discussed at the BDAC meeting.  This has been succinctly summarized by the Judge at [46] of the Decision as quoted above.

36.  Once considered in this context, the Judge is clearly right in concluding that Feb 2010 Paper is irrelevant to the issues concerning the proper meaning of the polices as raised in the Form 86:

(1)  In the present case, as identified by the Judge at paragraph 5(1) of the Leave Decision, the applicant’s case on the policy and the Lease Restrictions was premised on the three specific matters provided in the published policy which relate to exclusive possession, “managed services” being the dominant element of arrangement, and control of right of access.  See: [16] of the Form 86.

(2)  It is not any part of the pleaded case that there is an end-users limitation provided in the policy, nor is there any suggestion that any limitation on end-users has been published.

(3)  It is also worth noting that (a) the Feb 2010 Paper is an internal discussion paper of the BDAC recording previous deliberations; (b) it pre-dated the formulation and publication of the policies and was never published; (c) the Feb 2010 Paper stated expressly that the BDAC’s previous internal and unpublished view regarding “end-users limitation” was superseded after the respondent had considered further information, obtained further legal advice and further deliberated at its meeting on 9 February 2010; and (d) as noted in the paper at paragraph 21(d), the view on end-users limitation was then subsequently expressly rejected and replaced by the three matters specifically pleaded at [16] of the Form 86 as the appropriate criteria adopted in the policy promulgated by the respondent in 2010.

(4)  Given the above, the “end-users limitation” as recorded in the Feb 2010 Paper is not only just an unpublished factor discussed at the BDAC’s ongoing meetings but has also been expressly excluded and replaced by the three matters adopted in the published policy.  This once-considered but expressly excluded factor cannot be relevant to inform the court as to the proper meaning of the Policy and the Lease Restrictions.

37.  The Judge is therefore plainly right to refuse these amendments on the basis of irrelevance.[18]  Grounds 1 and 2 are without merit.

D2.3  Ground 3

38.  Under this ground, Mr Yu SC submits that the 2012 Document contains clear representations from Global Switch to the respondent that:

(1)  It intended to operate as a “wholesale” data centre;

(2)  It would grant licenses to its customers;

(3)  It was offering wholesale managed services which allowed its customers to offer to third parties, suggesting that its customers were not end-users.

39.  Mr Yu then further says, notwithstanding this intention of Global Switch which would indicate a breach of the Lease Restrictions, the respondent still proceeded to lease premises within TKOIE to the Global Switch.  Mr Yu contends that the 2012 Document thus shows that the respondent had misconstrued or misapplied its own policy and is thus directly relevant to the issues in dispute.  The Judge therefore erred in refusing this amendment.

40.  With respect, there is also no merit in this contention:

(1)  The proper meaning of the policy, including the Lease Restrictions, is a matter of construction for the court.

(2)  Once the meaning is properly determined, it is a matter of looking at what Global Switch has in fact been doing to determine whether there is any breach of the policy or the Lease Restrictions.

(3)  If Global Switch is in fact in breach, it is then necessary to determine whether the respondent in failing to enforce the policy or the Lease Restrictions and in allowing Global Switch to continue with the breach is by reason of its misconstruction of the policy.  It is not by reference to looking at whether by way of the 2012 Document, Global Switch has purportedly showed “an intention” to operate the data centre in breach of the Policy or Lease Restrictions as construed.  This is particularly so since, as noted by the Judge at [8] of the Leave Decision, the applicant has not by way of this judicial review challenged the respondent’s grant of the lease to Global Switch per se in 2012.

(4)  The 2012 Document is thus not relevant to the issue of whether the respondent has misinterpreted or misconstrued its own policy.

(5)  Further, given the above, the Judge is in any event correct to observe at [8] of the Leave Decision that the 2012 Document, even if relevant, can only be of very peripheral and limited value for the determination of this issue.  In the premises, it certainly cannot be said that the Judge is obviously wrong in exercising his discretion to refuse the amendment in the interests of procedural economy and proportionality: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at [30].

E.     CONCLUSION

41.  For the above reasons, the intended grounds of appeal are without merits and the intended appeal does not have any reasonable prospect of success.  We therefore dismiss the application for leave to appeal.

42.  There are no reasons why costs should not follow the event.  We order on a nisi basis that costs of this application be to the Corporation, with certificate for two counsel. We will assess costs summarily, and for that purpose, the Corporation shall file and serve its statement of costs by 10 December 2019 and SUNeVision shall file and serve its comments, if any, on the statement of costs by 17 December 2019.

43.  We are further of the view that this application is entirely without merit.  Pursuant to Order 59, rule 2A(8), we order that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.