CHENG KAR-SHUN AND ANOTHER v. HON LI FUNG-YING, BBS, JP AND OTHERS

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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BETWEEN

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JUDGMENT   (ON  COSTS)

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Application to vary costs order nisi

1.  On 24 September 2009, the Court handed down its judgment on the applicants’ application for judicial review: [2009] 4 HKC 204. The Court dismissed the application for judicial review. As for costs, the Court said (at pp 272 to 273):

“267.  I also make an order nisi that the costs of these proceedings be paid by the applicants to the respondents (with the exception of the 7th respondent), to be taxed if not agreed, with a certificate for two counsel.

268.  Prima facie, the unsuccessful applicants are only responsible for one set of costs. The points raised by the 7th respondent could have been raised by the other respondents and the same set of lawyers could have been instructed. The 7th respondent was of course entitled to be represented by counsel and solicitors of his own choice. But he cannot make the applicants responsible for the costs of that choice. As regards his costs, I make an order nisi that save for the costs of his affirmation (which had to be prepared by somebody in any event), the 7th respondent do bear his own costs; the costs of the affirmation be borne by the applicants.

269.  The Government is essentially involved in these proceedings because they raise issues concerning not only the Legislative Council but also its relationship with the Government. Government officials, like private citizens, are equally liable to be ordered to attend before the Council and its committees to testify or to give evidence under art 73(10) of the Basic Law and s 9 of the Ordinance.  The case also involves the interpretation of art 48(11) which concerns the Chief Executive’s power.  The question of what may or may not be inquired into by the Legislative Council is also one which is closely related to the work and function of the Government.  The participation of the Secretary for Justice in these proceedings has enabled the Court to understand the perspective of the Government on these issues, and, where appropriate, to take into account its position.  That being the case, the Secretary for Justice's involvement in the present proceedings is appropriate and necessary, and the applicants should pay to him his costs, with a certificate for two counsel.  I so order (by way of an order nisi).

270.  The foregoing represents my provisional view on costs which has been formed without having the benefit of hearing from counsel.  Any application to vary the above costs orders nisi must be made within l4 days after this judgment is handed down, failing which the same shall become absolute without further order upon the expiry of the 14-day period.”

2.  The 7^th respondent now applies to vary the costs order nisi, and asks that a separate set of costs be awarded to him, with a certificate for three counsel. He also asks for the costs of the present application.

3.  The applicants and the 7^th respondent have filed submissions on costs pursuant to directions given by the Court.

4.  The respondent essentially argues:

(1)  that he should not be “penalised” for defending the public interest as a Legislative Council member and one of the twelve members of the Select Committee in question;

(2)  that he has in the proceedings raised, by reference to extrinsic materials, a separate issue regarding the drafting history of the relevant articles of the Basic Law;

(3)  that his contention regarding the extrinsic materials has been accepted by the Court;

(4)  that he has been represented at the hearing by leading counsel (Mr Martin Lee SC) who is familiar with the drafting process of the Basic Law; and

(5)  that the present case is one of exceptional importance and complexity.

5.  The applicants seek to uphold the costs order nisi. They contend that the 7^th respondent has no separate interest in the proceedings to represent and his raising a “separate” issue is insufficient to justify a separate set of costs in his favour. The applicants also submit that the 7^th respondent is not “penalised” in costs for exercising his public duty, because that duty would have been just as effectively vindicated by the legal team representing the other respondents to the application. The applicants also argue that the fact that the 7^th respondent’s contention on the separate issue was accepted by the Court is neither here nor there, because it actually overlapped entirely with the submissions of the main body of the respondents and the Secretary for Justice. The applicants contend that Mr Lee’s familiarity with the drafting of the Basic Law is an entirely irrelevant consideration. As regards the fact that the case has been an exceptionally complex and important one, with a compressed timetable for hearing, the applicants submit that all this has been taken care of by the eminent counsel and their well-resourced supporting teams representing the other respondents and the Secretary for Justice. The respondents were, the applicants add, responsible for the compressed timetable.

Discussion

6.  As I observed in the recent case of Hong Kong Aircrew Officers Association v The Director-General of Civil Aviation, HCAL 96/2008 (4 September 2009), generally speaking, an applicant for judicial review should only be made to pay one set of costs, where his application has been successfully opposed by more than one respondent, or where the opposition has come from the respondent as well as an interested party. It is for the additional respondent or interested party to justify his participation in the proceedings. As I set out in paragraph 5 of that judgment, costs is always in the discretion of the court, and there can be no hard and fast rules. In a situation of the present type, there are several interrelated questions to bear in mind:

(1)  whether the separately represented respondent has any relevant or significant interest or reason to justify his participation in the proceedings;

(2)  whether that party raises (successfully) any separate or distinct, material issue for adjudication in the same proceedings;

(3)  whether that party can be represented by the same team of lawyers of his co-respondent for the proper protection of his interest or ventilation of the issue in question.

As the exercise of a discretion is involved, the court would of course be prepared to consider any other relevant matters.

7.  In the present case, I agree with the applicants that there is no question of “penalising” the 7^th respondent for discharging his public duty and defending the public interest. The issue here is whether he should have discharged his duty and defended the public interest by instructing the same team of lawyers as his co-respondents, who were also discharging their public duty and defending the public interest in opposing the present application for judicial review.

8.  Nor do I consider Mr Lee’s obvious familiarity with the drafting process of the Basic Law a relevant consideration. First, counsel is not instructed for the purposes of giving evidence from the bar table. Secondly, counsel instructed by the other respondents and by the Secretary for Justice respectively were more than capable of handling the relevant drafting history of the Basic Law.

9.  As regards the exceptional importance and complexity of the case and the compressed timetable, I do not consider that they alone provide any good reason for departing from the general principle that this Court stated in paragraph 268 of the judgment, namely that, prima facie, the unsuccessful applicants are only responsible for one set of costs. See Shiu Wing Steel Limited v Director of Environmental Protection, CACV 350/2003, 18 March 2005, para 158; applying Bolton Metropolitan District Council v Secretary of State for Environment [1995] 1 WLR 1176, 1178F-1179A. This is particularly so when the 7^th respondent does not claim that he had a separate interest from his co-respondents to represent, and when his co-respondents as well as the Secretary for Justice were already adequately represented by eminent counsel, who were backed by well-resourced teams.

10.  However, I am with the 7^th respondent on his submission that he has in these proceedings raised a separate issue about the drafting history of the Basic Law. The relevance of the drafting history and the limits or extent to which it may be useful as an aid to interpretation have been dealt with extensively in the judgment. It is factually correct that the issue was raised by the 7^th respondent for the first time after the close of evidence, it having received no mention in the Form 86 or the evidence that had been filed by the parties. The 7^th respondent actually obtained the leave of the Court, after a contested hearing, to put in the relevant evidence. It is also true that at the substantive hearing, as a result of a division of labour agreed upon between the 7^th respondent’s team and those representing his co-respondents, submissions on the relevant drafting history were made essentially by Mr Lee. (Mr Michael Thomas SC, for the Secretary for Justice, made separate submissions on this point for his client.)

11.  I also agree with the 7^th respondent that although he did not have a separate interest of his own to represent, the fact that he did raise a separate issue is a relevant consideration to bear in mind in the present context. In this regard, I reject the applicants’ argument that in addition to raising a separate issue, the 7^th respondent must also have a separate interest to protect in order to ask for a separate set of costs. That submission is not supported by what was said by the Court of Appeal and the House of Lords respectively in Shiu Wing andBolton, supra.

12.  However, the problem with the fact that the 7^th respondent did not have a separate interest to represent is that, prima facie, unless the separate issue could not have been raised by counsel representing the other respondents, because, for instance, they refused to raise the issue after they had been told about it, there was no reason why the same team of lawyers could not have been instructed to represent all respondents. By instructing two teams of lawyers, there was bound to be some duplication of costs, which the applicants should not be made responsible for. (If a separate interest had been involved, there might perhaps be a good reason for not retaining the same team of lawyers.)

13.  There is no evidence before me that the legal team for the other respondents was not prepared to run also the separate issue on the relevant drafting history of the Basic Law, once it had been properly raised by the 7^th respondent.

14.  To illustrate my point about duplication of costs, one simply needs to consider what actually happened in Court when the separate issue was argued by Mr Lee pursuant to the agreement on division of labour. When Mr Lee was on his feet making the argument, with his juniors and instructing solicitors fervently taking note of what leading counsel was submitting to the Court, the entire team of lawyers representing the other respondents were sitting in Court at the same time listening to the submission or taking note of the same. This was, to a substantial extent, a duplication of what Mr Lee’s juniors and instructing solicitors were already doing at the same time.

15.  All things considered, I take the view that the 7^th respondent should be entitled to his costs, subject to deduction therefrom all duplicated costs. As regards the amount of duplicated costs, I could leave it to taxation, but that would give the taxing master a difficult and unfair task. Taking a broad-brush approach, I regard a discount of 60% on the 7^th respondent’s costs on account of the duplication of costs to be fair and reasonable in the circumstances of the present case.

16.  I have considered the 7^th respondent’s argument on a certificate for three counsel. Having looked at the matter in the round, I refuse the application.

Outcome

17.  In conclusion, I order that the costs order nisi regarding the costs of the 7^th respondent be varied and made absolute as follows: That the applicants pay to the 7^th respondent 40% of his costs of these proceedings (including the present application to vary the costs order nisi), to be taxed if not agreed, with a certificate for two counsel.

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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J U D G M E N T

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1.  The most important consideration, from the Court’s perspective in the interest of the proper administration of justice, is that all relevant extrinsic materials that the Court can and indeed should look at in discharging its duty to construe the subject provisions in the Basic Law must be placed before it.  I think that is the most important matter that has arisen out of this morning’s hearing.

2.  To that end, the Court has to ensure that the parties have done their best to dig out the relevant extrinsic materials and place them before the Court.

3.  One of the respondents, Mr Leung, has apparently done so, and he now applies for leave to put in the materials that he and his team have managed to dig out to place them before the Court.  The Court is slightly concerned that the other parties have thus far not given this matter their most serious consideration.  The Court can only speak from its own impression.  It is not interested in finding out what has exactly happened –many of the matters may concern privileged advices and communications.  The Court does not want to go into those matters.

4.  Taking the situation as it is, the best the Court can do, apart from reminding the parties of the importance of placing all relevant extrinsic materials before the Court, is to allow the parties a further chance to produce them if they have not been included in the materials that Mr Leung now wishes to place before the Court, and the Court must give the parties time to do so.

5.  Having considered the original timetable, and having borne in mind the milestone dates, ie the hearing dates on the 17^th and 18^th of this month, the Court takes the view that it can afford to give all other parties, with the exception of Mr Leung’s side of course, until the morning of Monday, say 11 o’clock, to put in further relevant extrinsic materials by way of evidence.

6.  I emphasise the word “relevant” because not all extrinsic materials are relevant or admissible for the Court’s consideration, but the relevant principles have been clearly stated in a number of Court of Final Appeal cases, including Ng Kar Ling v Director of Immigration (1999) 2 HKCFAR 4, 28-29 and Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 223-225, and if there should be any dispute regarding whether any material is relevant or otherwise admissible, as it were, for the Court’s consideration, the matter can be debated at the substantive hearing.

7.  I mentioned putting in those materials by way of evidence.  That means setting out the necessary background of the extrinsic materials in the affidavit or affirmation evidence so that the Court can have the proper context when reading them.  But beyond that, the parties cannot go.  Particularly, no parties should seek to place any interpretation, expert or otherwise, on the contents of the relevant extrinsic materials in the evidence to be put in.  That would be the job of counsel at the hearing.

8.  In other words, the Court is giving all other parties leave until the morning, ie 11 am, on the 10^th, to put in evidence to that limited extent and on that specific basis.

9.  Now, some corresponding adjustments need to be made regarding the lodging of bundles and submissions, but before I deal with them, I need to deal with another application on behalf of the members of the select committee, apart from Mr Leung, to put in the second affidavit of Ms Pauline Ng.

10.  At this morning’s hearing a consensus has emerged regarding the relevance of the matters deposed to in the second affidavit as well as the exhibits exhibited to the affidavit.  It is now the consensus of all that the same is relevant to four and only four matters, namely:

(1) that the power to summons witnesses to appear before the Legislative Council has been exercised before on various occasions, both before and after the promulgation and coming into effect of the Basic Law;

(2) that on all these occasions when the power was exercised, the power was exercised to summons a witness to appear before a select committee, a panel or a sub-committee of the Legislative Council;

(3) that both civil servants and non-civil servants have been so summonsed to appear before a select committee, panel or sub-committee of the Legislative Council without any incident; and

(4) that the number of occasions when such power was exercised as alleged in the first affidavit of Ms Pauline Ng can be confirmed from the contents of her second affidavit as well as the exhibits to the same.

11.  Given that consensus, and on the basis of the consensus only, I am prepared to grant leave to the relevant respondents to put in the second affidavit of Ms Pauline Ng late, and on that basis, I do not see, at least as presently advised, any need on the part of the applicants to put in any evidence in reply, and Mr Pun has not suggested any.

12.  Returning to the adjustments to the original timetable for the lodging of written submissions and bundles, given that evidence will only be completed by 11 am on the 10th, Monday, I think it is only fair that the applicants should be given until the morning of Tuesday to come up with the bundles of documents, and there are quite a number of them.

13.  So I will give the applicants until 10 o’clock in the morning on the 11^th to lodge the bundles of documents and to serve the bundles on the other parties.

14.  In relation to the preparation of the bundles of documents, as indicated at this morning’s hearing, the voluminous exhibits to Ms Pauline Ng’s second affidavit should not be included in the bundles of documents with the exception of the first page of each of the exhibits relating to each of the inquiries in question, which summarises the summonses issued and sets out the identities of the witnesses concerned.

15.  But of course, if, in the unlikely event that somebody needs to refer to the actual exhibits during the course of the hearing, he or she may do so, and the Court does have its own court file to refer to, and certainly the parties have already been served with the second affidavit together with a full set of exhibits.

16.  Regarding the lodging of the applicant’s written submissions and authorities, I am minded to take a realistic approach.  If the extrinsic materials were only to be placed before the Court by 11 am on Monday, ie 10 August, I do not think it would be fair to ask the applicants to come up with their written submissions at any time earlier than the morning of the 12^th, although the applicants should have prepared a substantial part of their written submissions even before having sight of all relevant extrinsic materials from the other side.

17.  So I am giving the applicants until 10 am on the 12^th to lodge and serve their written submissions and authorities. 

18.  I accept that the position is not entirely ideal, and certainly the respondents and the interested party need time to look at the applicants’ submissions and to prepare their own, although again, even without sight of the applicants’ submissions, the respondents and the interested party should have prepared a substantial part of their respective submissions before.

19.  So I am giving the respondents and the interested party until 4 pm on Friday the 14^th to lodge and serve their respective submissions and additional authorities.  By additional, I am excluding those authorities that have already been included in the applicants’ list.

20.  The Court will be flexible with the hearing hours on Monday, ie the 17^th.  If the Court cannot finish reading all written submissions before 10 am on the 17^th, the Court may stand down the matter for an hour or so in order to enable the Court to be fully equipped before starting the hearing, but if the Court manages to read all written submissions by 10 am, the Court will of course start the hearing as scheduled.

21.  But in any event, it is not anticipated that commencement of the hearing on the 17^th will be substantially delayed, so the parties must attend Court at 10 am on the 17^th as scheduled.

22.  The only outstanding thing apart from the question of costs is to give Mr Leung formal leave to file his affirmation for the reasons I have explained in some length in the above judgment.

23.  I give Mr Leung leave to file his affirmation within today.  I dispense with the service of the affirmation on the other parties.

24.  I will give a similar direction in relation to the second affidavit of Ms Pauline Ng.  In other words, I give leave to file the second affidavit within today.  Service be dispensed with.

25.  In relation to Mr Leung’s affirmation, paragraphs 35 and 36 are really matters of submission.  To avoid unnecessary argument at this stage, in the exercise of my discretion, I would exclude those two paragraphs.  So the leave given to Mr Leung to file his affirmation does not include the matters deposed to in paragraphs 35 and 36.  Instead of asking Mr Leung to remake his affirmation, those two paragraphs need only be deleted, and I give leave to do so.

[Submissions on costs]

26.  I think the fairest order today, bearing in mind the court’s new approach to the question of costs, particularly in relation to case management matters, is costs in the cause.  I have borne everything urged upon me so ably by Mr Pun in mind, but in my view, taking a global view of the matter, the issues canvassed this morning are really in the nature of case management and pre-hearing directions.

27.  So I think the fairest and the most appropriate order is costs in the cause. 

28.  I am minded to grant a certificate for two counsel, given the very peculiar circumstances of the case and the exceptional importance of the case to the parties, and given the public interest in the matter as well.

29.  So costs in the cause, with a certificate for two counsel.  That applies to Mr Pun's team as well as to Mr Lee’s team.

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review to challenge certain orders of the Select Committee.  Those orders relate to the appearance of the applicants before the Select Committee at a hearing scheduled for 15 July 2009 at 9.30 am, in the LegCo Building, for which purposes summonses have been issued and notices to appear have been sent.  They also relate to the Select Committee’s requirement of the applicants to produce documents before or at the hearing.

2.  Altogether, six substantive items of relief are set out in the form 86, raising various matters of challenge.  The Court has heard the applicants, through counsel, Sir John Swaine SC (Mr Chow, Ms Wong and Ms Yeung with him), on the application for leave.  As is with usual practice and, indeed, such practice has been embodied in the relevant rules, the application for leave has been heard on an ex parte basis.  Apart from specific matters on which the Court has sought assistance from others who are present in Court today, the Court has essentially heard Sir John on an ex parte basis.

3.  So far as application for leave is concerned, the test is one of reasonable arguability.  It is not a particularly high threshold.  As the Court of Final Appeal, in setting the test, has explained, it is a test designed to screen out unmeritorious, frivolous, vexatious and purported challenges that are not reasonably arguable.

4.  The test does not mean that leave should be refused if there appears, on the materials before the Court, respectable counter-arguments to those relied on by the applicant.  The focus is really on whether the applicant has shown, by the materials he or she has chosen to place before the Court, contentions that are reasonably arguable.

5.  Bearing in mind firmly the threshold test just described, the Court is satisfied that items 1 and 2 in the relief sought set out in the form 86 do pass the test of reasonable arguability. 

6.  Those grounds, in a nutshell, argue that the power to summons persons to testify or give evidence before the Legislative Council in pursuance of the Legislative Council’s exercise of its powers and functions set out in Article 73(1) to (9) of the Basic Law, given under Article 73(10) of the Basic Law, is restricted to the Legislative Council itself as an entire body, as opposed to any Select Committee thereof, particularly when the number of members comprising the Select Committee falls short of 50% of the total membership of the Legislative Council.

7.  In my view, this is an important and serious constitutional challenge.  A reasonably arguable case has been shown and it must be dealt with at an inter partes substantive hearing.  Having said that, as indicated during counsel’s submission, the Court can readily see counter-arguments, and even significant counter-arguments, pointing to the contrary conclusion.  But that is really a matter for the substantive hearing.  At this stage, as I said, the Court is satisfied that a reasonably arguable case has been shown. 

8.  The Court is likewise minded to grant leave in relation to item 3 of the relief sought.  It is a challenge against the Select Committee’s so-called expanded focus at the scheduled hearing.  The complaint essentially is that the Select Committee has deviated from and gone outside the scope of inquiry set out under the relevant Legislative Council resolution which set up the Select Committee in the first place.  In other words, it is an ultra vires argument.

9.  Bearing in mind that the matters will be fully thrashed out at a substantive hearing, the Court would refrain from commenting on the strength of the arguments that have been presented by Sir John to the Court.  All I would indicate is that, having heard those arguments, the Court is just barely satisfied that a reasonably arguable case has been shown. 

10.  The Court can see quite a number of difficulties facing this challenge but, again, that is a matter for substantive hearing.  To be fair to the applicants, today’s hearing has been brief and, of course, the applicants will present their full arguments before the Court at the substantive hearing.

11.  Items 4, 5 and 6 of the relief sought deal with essentially four matters, namely, the constitutional right to privacy, the constitutional right to legal professional privilege, the constitutional right to have one’s dispute adjudicated by a court of law and the right under the Legislative Council (Powers and Privileges) Ordinance (Cap 382), section 13, to refuse answering questions or producing documents which relate to a subject matter of a private nature and does not affect the subject of the relevant inquiry.

12.  Very fairly, Sir John, in the course of his submission and after exchanges between the Bench and the Bar, has indicated to the Court that the points involved are not his best points and, at the end of the day, has indicated that his clients have no intention to pursue those points in these proceedings.

13.  In my view, the concession has been rightly made.  I do not think that, if pursued, those points would pass the reasonable arguability test.  In the circumstances, no leave is granted on those four points contained in paragraphs 4, 5 and 6.  In other words, 4, 5 and 6 do not attract the Court’s leave.

14.  Item 7 is simply a rolled-up item.  It is a consequential item premised on the previous six items.  I would let item 7 in on the basis of items 1 to 3 in relation to which I have granted leave.

15.  Item 8, likewise, is a consequential item, so on the basis of items 1, 2 and 3, item 8 is also allowed to be pursued at the substantive hearing.

16.  Likewise, the first part of item 10 is a consequential matter.  I will deal with the question of interim stay at the next stage, but the first part of item 10 is a consequential matter so it will go in as well. 

17.  That essentially disposes of the leave application but I would mention two things.  First, the Court has seriously considered the possible option of not deciding the leave application at this stage but, instead, ordering a rolled-up hearing.  In other words, the leave application and the substantive application will be rolled up into one hearing without the Court deciding first whether leave should be granted.

18.  It must be emphasised that that is an extraordinary procedure.  In recent memory, the only occasion that such a procedure had been resorted to was the occasion when somebody challenged the sale of car parks to Link REIT on the eve of the floatation of the relevant company.  Special and extraordinary circumstances call for extraordinary measures.

19.  In our present case, the Court acknowledges readily the fact that one is concerned with an ongoing LegCo Select Committee inquiry.  It is in the public interest that the inquiry be carried on to its logical conclusion within a reasonable period of time.  However, it does not entail the sort of urgency that would compel the Court to adopt the extraordinary procedure of a rolled-up hearing. 

20.  Moreover, the Court has been able to come to a decision on the question of leave, applying the standard test, after hearing the applicants’ counsel’s arguments, so there is no real need for deferring that decision to another date.

21.  That brings me to the second matter that I would like to mention before I conclude this part of the hearing today, and this relates to a matter raised by Mr Leung Kwok-hung, a Legislative Council member as well as a member of the Select Committee in question, ie the practical effect of the Court’s granting leave today – it would mean, in all probability, some delay in the work of the Select Committee.

22.  Unfortunately, that is a price to be paid in our society which is governed by the rule of law so much cherished by all members of society.  Adjudication of legal rights inevitably requires time and, very often, time means delay.  The Legislative Council is no exception in terms of having to tolerate the inevitable delay that the process of administration of justice entails. 

23.  However, it does not mean that there are no ways to minimise the delay and the Court would, at the next stage, when giving directions, see whether anything can be done to speed up the resolution of the substantive disputes. 

24.  Although I have mentioned that I only wish to raise two points, perhaps I should make one last point.  The Court is acutely and anxiously conscious of the fact that the Legislative Council is an important institution in the governmental and political structure set up under the Basic Law for the proper governance of Hong Kong. 

25.  Whilst this case raises some questions relating to the workings of the Legislative Council and the Court has given leave for some of those questions to be raised, it does not mean at all that the Court has lost sight of the fact that the Legislative Council plays a unique role of the utmost importance in Hong Kong.  In fact, the common law and the applicable law fully reflect that concern. 

26.  But on the other hand, the Judiciary of the Hong Kong SAR has been charged with the duty of applying the law, including the Basic Law, to resolve disputes between parties and individuals and the Court cannot shrink from its constitutional responsibilities. 

27.  Leave is granted on the above basis.  Costs of the ex parte application be in the cause.

28.  For the avoidance of doubt, although the body of the form 86 referred at length to allegations of bias, actual or apparent, against certain members of the Select Committee, as has been clarified by Sir John during today’s hearing, the allegations do not form a ground in support of the items of relief set out in the form itself and, in fact, they play no role in the three substantive items, namely, items 1, 2 and 3, in relation to which the Court has given leave. 

29.  The Court is not minded to ask the applicants to amend the form 86 to delete those references.  The Court will simply read and treat those references as part of the relevant background of the present challenge.  However, when one moves to the next stage, namely, the filing of evidence and, ultimately, the substantive hearing, no parties need be concerned by those references and allegations about bias, either in the evidence or in the argument, and the Court will not allow time to be expended on those matters at the substantive hearing. 

30.  So with those remarks, the ex parte application is completely dealt with.  I will now hear the parties on an inter partes basis.

[Submissions on hearing dates]

31.  I will not repeat myself.  The case raises a question of constitutional importance.  A LegCo Select Committee’s work is at stake.  Public interest is involved.  All this points towards fixing an early date; in fact, the earliest date for the hearing of the matter, so long as evidence can be filed by the parties to cover all necessary evidential grounds.

32.  The only counterbalancing consideration is the applicants’ wish for the specialist counsel practising in London to be accommodated in terms of his or her diary, so that the London silk involved can become a member of the legal team representing the applicants. 

33.  The debate is between holding the substantive hearing in the middle of August and holding it in the middle of September.  Superficially, the difference only relates to one month’s time, but it is no secret that the relevant inquiry has been going on for some time.  It is only right that it should be continued to its logical conclusion within a reasonable period of time.  Any delay is contrary to public interest.

34.  Mr McCoy SC, on behalf of the Select Committee, has informed the Court that the extant proceedings would inevitably have a knock-on effect on the hearing of other witnesses before the Select Committee.  On top, there is the question of possible appeal from the court’s judgment on the matter.

35.  Of course, one could say that that prospect makes the difference of one month quite irrelevant in the overall context.  On the other hand, each level of the court must do its best to contain the inevitable delay.  So far as this Court is concerned, its duty is to deal with the matter as soon as possible, given the public interest involved. 

36.  The court has not forgotten the very understandable desire on the part of the applicants to be represented by counsel of their choice.

[Further submission by counsel]

37.  I was on the question of the applicants’ desire to be represented by counsel of their choice.  But the Court sits for the administration of justice, as it has been said more than once, not for the convenience of counsel.  So far as London silks are concerned, I am sure there are more than one particular silk who would be available and competent to handle the case on behalf of the applicants.  Thus far, the applicants have only contacted one. 

38.  Now, it is said that the London silk has been advising the applicants since day 1.  That happens from time to time.  But the other side of the same coin is that the applicants must have obtained written opinions or advices from the London silk and the rest of the legal team of the applicants can work from those legal opinions or advices.

39.  Another point raised during the hearing is Sir John’s availability to conduct the case on behalf of the applicants.  But it has been very fair on the part of Sir John to accept that his prior engagement in the District Court in relation to a criminal matter may not necessarily stand in the way of the earliest dates, assuming that some indulgence could be obtained from the trial judge in that criminal case which is scheduled to last for some length.

40.  So having balanced all considerations, I am of the view – and this has not been a particularly easy decision – that the earliest dates should be made use of for the substantive hearing.  That is on the assumption that satisfactory directions for the filing of evidence and so forth can be given.  On that basis, on that assumption, I shall work on the premise that the substantive hearing will take place on the 10th.

[Further submissions on hearing dates]

41.  The dispute has been going on for some time.  The applicants must have been aware of their own intention, if worst comes to worst, to bring proceedings against the Select Committee, and they should have realised that the matter raises questions of some importance.  It concerns an ongoing LegCo inquiry.  They have got some time before today’s hearing to go into the law, do all the necessary research, look into the relevant cases in relevant jurisdictions and put in good order their arguments that they would like to present before the court.

42.  If anything, today’s hearing makes their task easier by eliminating no less than four matters they originally intended to pursue in these proceedings, thereby focusing the applicants’ attention on two real matters of dispute that should go to the substantive hearing.

43.  The applicants should also have realised that in a matter of this type, the court may very well decide not to accommodate the convenience of counsel.  In fact, in cases of lesser importance, convenience of counsel has very often been put to one side in order for cases to be dealt with without delay.  That simply reflects one of the underlying objectives of the recent Civil Justice Reform.

44.  So despite the eloquence of Sir John, which I appreciate, I am not minded to take into account the availability or non-availability of the London silk in the equation any more than what I had already done when I first gave my ruling, this being a request to reconsider that ruling.

45.  The only other matter is that, by my order, I would be imposing upon the District Judge and the client, whom Sir John will represent in the criminal case, to grant indulgence to Sir John to absent himself from the proceedings, or (as the case may be), to suffer the absence of Sir John from the proceedings while they are being carried on, in case no indulgence is given.  I bear in mind that that involves a criminal case.  Of course I said that on the assumption that the applicants will continue to be represented by Sir John.  I have heard no suggestion to the contrary, particularly when the London silk may not be available to appear before the Court.

46.  So the only matter that really merits my reconsideration in this regard is Sir John’s availability.  At this stage, there can be no guarantee.  Depriving the applicants of one counsel of their choice is one matter; depriving them of two leaders is a different one. 

47.  Bearing in mind all these matters, I am minded to move the hearing date from 10 August to 17 August, ie by one week.  That, of course, means a delay of another period of one week but having borne everything in mind, that is a delay that cannot be avoided in order to do justice to all parties.  Sir John will be available on the 17th because his criminal case is scheduled to finish by the 14th.

48.  As to preparation and so forth, I am afraid practice at the Bar is always busy, but one is assisted by juniors and so forth.

[Further submissions on directions]

49.  (1) Leave to the applicants to file and serve their originating summons on or before 17 July 2009.

(2) Leave to the respondents and interested parties opposing the application to file and serve their evidence on or before 24 July 2009.

(3) Leave to the applicants to file and serve evidence in reply on or before 31 July 2009.

(4) No further evidence be filed without leave of the court.

(5) Applicants do lodge with the court and serve on all other parties the bundles of documents and their written submissions on or before 7 August 2009.

(6) The respondents and all opposing interested parties do lodge with the court and serve on all other parties their written submissions on or before 12 August 2009.

(7) The substantive hearing of the application for judicial review be fixed for 17 and 18 August 2009, with the following date also reserved.

(8) Costs in the cause, with a certificate for two counsel (in relation to the ex parte application as well as the inter partes directions hearing).