Designing Hong Kong Ltd v. The Town Planning Board

HCMP 1890/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1890 OF 2015

(ON AN INTENDED APPEAL FROM HCAL NO. 49 OF 2014)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the decision of Au J in HCAL 49 of 2014 on 16 December 2014. By that decision, the learned judge refused to admit the 3^rd affidavit of Mr Zimmerman and the last sentence of paragraph 4 of his 4^th affidavit as evidence [“the Evidence”] in relation to the Applicant’s application for a Protective Costs Order [“PCO”]. The Judge proceeded to hear the application for PCO on 16 and 17 December 2014 and he handed down his judgment on 30 April 2015 refusing to grant a PCO.

2.The Applicant sought leave to appeal against the refusal of PCO and Au J granted leave to appeal on 28 July 2015.  That is the appeal in CACV 184 of 2015 and it will be heard in due course.

3.The Applicant did not seek leave to appeal before the Judge in respect of the refusal to admit the Evidence [“the Decision”]. The explanation was that the Applicant did not have sufficient resource on 16 December 2014 to do so and it might unnecessarily delay the progress of the PCO application.  The Applicant therefore decided to wait until the outcome of the PCO application.

4.The Applicant therefore seeks extension of time to appeal and leave to appeal against the Decision before this court.   

5.Having considered the submissions of the parties, we are of the view that the intended appeal is not reasonably arguable and leave to appeal and extension of time should not be granted.

6.As submitted by Mr Mok SC, there is a delay of more than 7 months and it is substantial.  We do not find the explanation for the delay in seeking leave satisfactory.  There was no suggestion that the Applicant had a change in its financial position since 16 December 2014.  We do not accept that the decision not to seek leave was made on account of resource consideration.  In respect of the desire to wait for the outcome in the PCO application, it should not have stopped the Applicant from making an application for leave to appeal against the Decision before the Judge.  If leave were granted, the Applicant could lodge the appeal without making an application to fix the date until after the outcome of the PCO.  If leave were refused, the Applicant could have lodged an application for leave to this court and requested the application to be withheld pending the outcome of the PCO.

7.This court has stressed repeatedly the importance of an application for leave to appeal being first made to the court below so that this court could have the benefit of the views of the court below on the merits and other implications arising from the leave application, see Jenho Development Ltd v Tse Tung Hoi HCMP 277 of 2013, 25 March 2013; Singh Arjun v Secretary for Justice [2014] 2 HKLRD 678; Kiddie China Ltd v Etech Fire Ltd HCMP 1673 of 2014, 16 Sept 2014; Lemanbrown Ltd v Union Trade Holdings Inc HCMP 977 of 2015, 17 June 2015.  The effect of the Applicant’s manoeuvre in this instance is to deprive this court of such benefit.    

8.Further, we do not see any merit in the substantive arguments.  Having read the Evidence and considered it in light of the PCO judgment as well as the transcript relating to the application for admission of the Evidence, and having given careful consideration to the submissions of counsel, we agree with the Judge that the Evidence is plainly not relevant for the proper determination of the PCO application.  Whether the Respondent would seek costs and whether the court would award costs at the end of the judicial review are not decisions which the Chief Executive could have interfered with.  Thus, whether the Chief Executive had uttered the statement said to have been made in the Evidence is of no moment.  It is also difficult to see how the willingness or unwillingness of the financial backers of the Applicant to fund the litigation should depend on such utterance.  They should assess the position by reference to how the court generally deals with the question of costs in cases of this nature and in that respect whatever statement made by the Chief Executive is not relevant.      

9.Further, as submitted by Mr Mok, the Evidence is not relevant to any issues to be considered in the appeal in light of the basis on which the Judge ruled against the Applicant in the PCO application. 

10.Neither do we see any other reason in the interest of justice to give leave. 

11.For these reasons, we refuse to grant the extension of time and dismiss the summons of 4 August 2015.

12.We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of the High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.

13.We order the Applicant to pay the costs of the Respondent in this application.  In the statement of costs submitted by the Respondent, it asked for costs in the total sum of $73,242 of which $37,900 is counsel fees.  We find the amount to be reasonable and we order the Applicant to pay the costs of the Respondent in the sum of $73,242.

Written submissions by Mr Nigel Kat SC and Mr Azan Marwah,instructed by Boase Cohen & Collins, for the applicant

Written submissions by Mr Johnny Mok SC and Ms Eva Sit, instructed by the Department of Justice, for the respondent