Yau Ka Po v. Town Planning Board

HCAL 67/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 67 OF 2015

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J U D G M E N T
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A. INTRODUCTION

1.This is the summons of the respondent (“TPB”) to set aside leave to apply for judicial review on the ground of material non‑disclosure; alternatively, to dismiss the judicial review on the ground of abuse of process. 

B.  BACKGROUND

2.On 13 February 2015, TPB made a decision rezoning the Green Belt (“GB”) sites under draft Tai Po OZP No. S/TP/25 (“TPB’s Decision”) and not to make the relevant amendments to the draft plan.

3.On 13 May 2015, the applicant filed Form 86 in the present case for judicial review of TPB’s Decision.  Form 86 was subsequently amended on 4 September 2015.  Seven days after the papers were placed before me, leave to apply for judicial review was granted on 14 October 2015 upon consideration of papers only.

4.On 12 June 2015, TPB amended the draft Tai Po OZP No.S/TP/25 and renumbered it as Tai Po OZP No.2/TP/25A (“DOZP”).

5.On 8 September 2015, the Chief Executive in Council (“CEIC”) approved the DOZP (“CEIC’s Decision”).  The DOZP was renumbered as S/TP/26 upon approval (“the Approved Plan”), which was gazetted on 18 September 2015.  It had the effect of rezoning a number of GB sites in Tai Po OZP for residential development in accordance with TPB’s amendment. 

6.On 18 November 2015, the applicant filed Form 86 in HCAL 221/2015 (“Yau Ka Po (No.2)”) seeking leave for judicial review of CEIC’s decision.  The grounds relied on included the breach of legitimate expectation (“the LE Ground”) in the present case.

7.By a decision dated 29 January 2016 (“the Judgment”), I dismissed the leave application in Yau Ka Po (No.2) in part.  Two paragraphs of the Judgment are relied on by TPB in the present application:

“38. ... The Approved Plan superseded the DOZP. Yau Ka Po (No.1) is liable to be dismissed on the ground that it is academic and that continuous pursuit of it might be an abuse of process: Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR 363, per Liu JA at 380G-I.”

“138. It appears to be an abuse of process to continue with the judicial review in Yau Ka Po (No.1): Kwan Kong. The fact that leave was granted on Ground 1 [ie the LE Ground] does not change the position.”

8.By a letter from his solicitors dated 5 February 2016, the applicant insisted on proceeding with the present case.

9.This summons is taken out by TPB as a result.  The material non-disclosure related to 6 sets of documents (“the undisclosed documents”):

(1) The CEIC’s Decision which was made on 8 September 2015, wherefore TPB’s Decision no longer subsisted and the then application for leave for judicial review against TPB’s Decision had become wholly academic (“UD1”);

(2) The blog message dated 24 November 2013 of the Secretary for Development (“SDev”) (“UD2”);

(3) The response of the SDev to LegCo’s questions on 16 October 2013 about a second stage review on GB sites (“UD3”);

(4) The explanation of SDev at a meeting of the Panel on Development of the LegCo (“the Panel Meeting”) held on 28 January 2014 in relation to the second stage of GB reviews (“UD4”);

(5) The blog post of SDev dated 6 July 2014(“UD5”);

(6) The fact that the 2-stage GB review was explained in 2 TPB papers before 3 specified TPB meeting sessions (“UD6”).

10.TPB contends that the LE Ground in the present case is not reasonably arguable.  Alternatively, the present case has become wholly academic and its continuation is an abuse of process.

11.The applicant’s grounds in opposition are as follows:

(1) 1^st ground: that the material non-disclosure related solely to the LE ground which he had abandoned by letter dated 22 February 2016. 

(2) 2^nd ground: that he only became aware of CEIC’s Decision towards the end of October 2015.

(3) 3^rd ground: thatthe non-disclosure was not deliberate and that he and his legal advisers never had the intention to suppress or withhold documents from the court.

(4) 4^th ground: that setting aside does not necessarily follow from material non-disclosure; the court retains discretion not to set aside leave.

C. MATERIAL NON-DISCLOSURE

C1. Legal principles on material non-disclosure

12.The court imposes a heavy burden on an applicant to make full and frank disclosure where an ex parte application for leave is made to the court.  The importance of this duty has been emphasized in Kan Hung Cheung v The Director of Immigration, HCAL 74/2007, 13 February 2008, A Cheung J (as he then was), at §§13, 14.

13.Materiality is not determined by asking if the judge had had before him the additional facts later disclosed would he have come to the same conclusion.  The right test is that the court must be fully informed of all facts that are relevant to the weighing question which the court has to make in deciding whether or not to make the order.  Or put another way, material facts are those which are material for the judge to know in dealing with the application before it.  Kan Hung Cheung,§§15, 43, 54.

14.Material facts do not only include those which would have a decisive effect on the outcome of the application, but also any additional facts which should be known if proper enquiries were made: Kan Hung Cheung §§16, 40; and matters like whether a judge should entertain an ex parte application on a Saturday morning: Kan Hung Cheung, §57.

15.Non-disclosure, where there is a duty to disclose, is tantamount to an implied representation that there is nothing relevant to disclose: Conlon & anor v Simms [2008] 1 WLR 484, §130.

16.Where there was material non-disclosure, the court can set aside leave.  This jurisdiction is disciplinary, indeed penal, in nature, quite irrespective of the merits of the application. It extends to cases in which permission would have been given on full disclosure in order to promote compliance with the duty of full disclosure.  The court would not assist an applicant to retain an advantage that he was not entitled to.  The court’s approach has been set out in Kan Hung Cheung,§19. 

C2.  Materiality of the non-disclosure

17.To put things in context, in Yau Ka Po (No.2), the applicant relied on statements of the government regarding its Green Belt review between 2012 and 2014 (§32 of the Judgment).  The same applies to the Amended Form 86 in the present case.

18.All the undisclosed items fell within that period.  The applicant does not really dispute that there was material non-disclosure.

19.The undisclosed items showed that the government had made numerous references to 2-stage reviews of Green Belt and fully wooded Green Belts.  Their disclosure would have rendered paragraphs 18, 19, 27 and 31 of the Amended Form 86 in this case untrue.  In fact, UD1, UD2 and UD5, ie the CEIC’s decision and the 2 blog posts of the SDev, were expressly relied on by this court in refusing to grant leave on the LE Ground in Yau Ka Po (No.2) (§§48, 49, 50 & 54 of the Judgment).  Disclosure of the undisclosed items would have caused this court to decline to grant ex parte leave in the present case.

C3.  1^st ground of opposition – that the material non-disclosure related solely to the abandoned LE Ground

20.In his written reply submission, Mr Dykes SC clarified that the applicant was not saying that the material non-disclosure issue was confined to the LE ground.  Nor was he saying that abandoning the LE ground would cure material non-disclosure retrospectively. Rather, the applicant said that no procedural advantage has been retained through material non-disclosure because that ground has been abandoned, and that in any event the Court ought to exercise its discretion to either uphold the grant of leave or re-grant leave if it is minded to set aside leave.

21.With respect, the procedural advantage was retained until the abandonment, which came only after handing down of the Judgment against the applicant.  The abandonment was even preceded by an insistence to proceed, which prompted the taking out of this summons.

22.The 1^st ground of opposition has no merits.  I will come back to the exercise of discretion not to set aside leave under the 4^th ground.

C4.  2^nd ground of opposition – applicant’s unawareness of the CEIC’s Decision

23.Mr Mok SC has analyzed the net effects of sections 8 and 9 of the Town Planning Ordinance, Cap.131 (‘the Ordinance”):

(a) The DOZP would have gone to CEIC for approval at some stage: section 8.

(b) There was a specific time frame for submission to the CEIC, ie 2 months from close of exhibition for public inspection (section 5) + 9 months for submission of the DOZP to CEIC for approval + another 6 months if there had been an extension: section 8. 

(c) The time for CEIC to give its approval would have expired on 11 September 2015.

(d) CEIC’s approval could have been checked from the gazette: section 9(4).  If that was done, the CEIC’s Decision would have been discovered.

24.Applying Kan Hung Cheung, §§16 & 40, the CEIC’s Decision was clearly something that the applicant should have known if proper enquiries had been made. 

25.An applicant has a duty to inform the court as soon as he becomes aware that the court has been mis-informed or given incomplete information at the time of the ex parte application.  There is also a duty to disclose any material change of circumstances while the proceedings remain on an ex parte basis.  Kan Hung Cheung, at §17.

26.CEIC’s Decision was gazetted whilst leave to apply for judicial review was pending in the present case.  Even if the applicant only became aware of CEIC's Decision towards the end of October 2015, he should have so informed the court in this case when he filed Form 86 for Yau Ka Po (No.2), at the latest.

27.The applicant tried to explain away his failure to inform the court in his 3^rd affirmation (“applicant-3^rd”):

“14. When the TPB submitted the Draft Plan to the CEIC for approval on 10^th August 2015, it was fully aware of Yau Ka Po (No. 1). (It appears that the date of submission of the Draft Plan is not available from any public documents, and I only got this date from paragraph 10(6) of the CEIC’s Skeleton Submissions in Yau Ka Po (No.2) dated 13^th January 2016.) I am not aware whether the TPB had told the CEIC that I had sought to seek judicial review of the draft Tai Po OZP No. S/TP/25.

15. When the CEIC approved the Draft Plan on 8^th September 2015, leave had not yet been granted in Yau Ka Po (No. 1).  Between 8^th September 2015 and 14^th October 2015 (the date when leave was granted), there was ample opportunity for the TPB to write to inform this Honourable Court of the fact that the Draft Plan had been approved by the CEIC – something, I repeat, which was known to the TPB but not to myself or my legal representatives.”

28.These explanations exposed a shameless shift of the duty of full and frank disclosure to the TPB.  The presence of a respondent at the hearing does not release an applicant from his primary responsibility not to mislead the Court and to place all material facts and information before it: Kan Hung Cheung §62.  It is more so where TPB was not served with the Amended Form 86 and relevant papers until after leave was granted, i.e. over a month after the CEIC’s Decision.

29.Further, the applicant deposed to the knowledge of his legal advisors, which was hearsay evidence, without stating the source of information: Hong Kong Civil Procedure 2016, Vol 1, PD/SL3/1(7), pg 2029.  Alternatively, if the relevant legal adviser was admitting part of the responsibility in drafting this affirmation for the applicant, there was no proper identification of who was responsible for what.

30.The 2^nd ground of opposition has no merits.

C5.  3^rd ground of opposition – no intention to suppress or withhold documents from the court

31.The applicant claims that the non-disclosure was not deliberate and that he and his legal advisers had no intention to suppress or withhold documents from the court.

32.This is no answer.  Material non-disclosure is not about the subjective intent of the applicant but the objective fact of non-disclosure. 

“In seeking ex parte relief an applicant must disclose to the judge any fact known to him which might affect the judge’s decision whether to grant relief or what relief to grant. It is no answer for an applicant who falls down on his duty to show that his breach of duty was committed in good faith and inadvertently, or to show that the relief would have been granted even had he complied with his duty. The courts have traditionally insisted on strict compliance with this rule, as affording essential protection to an absent defendant, and as applications for ex parte relief have multiplied so the importance of complying with this duty has grown.” [underline added] Fitzgerald & ors v Williams & ors [1996] QB 657, pg 667H-668C

33.I accept that the court should be careful about making findings of whether an act was deliberate based on affidavit evidence alone: Re Smith and Fawcett Ltd. [1942] 1 Ch 304 (CA), Lord Greene M.R. said (at 308-309):

“... I strongly dislike being asked on affidavit evidence alone to draw inferences as to the bona fides or mala fides of the actors. If it is desired to charge a deponent with having given an account of his motives and his reasons which is not the true account, then the person on whom the burden of proof lies shall take the ordinary and obvious course of requiring the deponent to submit himself to cross-examination. That does not mean that it is illegitimate in a proper case to draw inferences as to bona fides or mala fides in cases where there is on the face of the affidavit sufficient justification for doing so, but where the oath of the deponent is before the court, as it is here, and the only grounds on which the court is asked to disbelieve it are matters of inference, many of them of a doubtful character, I decline to give to those suggestions the weight which is desired.”

34.That does not mean that the court cannot make such findings where an affidavit sufficiently reveals a deliberate state of non-disclosure. An example can be found in Kan Hung Cheung, §§21-31.

35.In the present case, the applicant was not cross-examined even though he was willing to submit to it.  However, it will be useful to examine all the circumstances to ascertain his state of mind.

36.Firstly, the applicant resiled in part from his position in Yau Ka Po (No.2).  In paragraph 29 of applicant-3^rd, he stated,

“... my belief at the material time was that the Government’s representations made in the 2011-12 Policy Address and the 2013 Policy Address, as well as those made in between the two Policy Addresses ... were sufficient to give rise to the said ‘legitimate expectation’, and any subsequent review of non-DDF GB sites for the purpose of converting them into housing sites would be a breach of such ‘legitimate expectation’. This has, as I said, been proven to be incorrect by Au-Yeung J’s Decision.”

37.This was disingenuous.  I have alluded to the fact that the applicant’s case was based on Policy Addresses of 2011-2014.

38.Secondly, Mr Dykes SC submits that there was a lot of emphasis on blog views containing personal statements.  TPB has not pointed to the official statement of government policy. 

39.With respect, this is an attempt to play down the importance of blog posts as a modern, frequent and quick means of communication by the SDev with the public.  

40.Not only that.  In criticizing the SDev for “using such informal means to explain the drastic change of town planning policy”, the pleader refrained from setting out the contents of UD5, ie the blog post dated 6 July 2014 (§37 of the Amended Form 86). This criticism dodged the issue of material non-disclosure.  It was for obvious reasons – because this blog post contained materials disadvantageous to the applicant.  The applicant distorted the picture by alleging that it was an example of the government’s “denial of the change of policy”.

41.Thirdly, the 6 July 2014 blog post was material in a few aspects:

(a) SDev expressly stated therein that he had “talked about the details of the work many times in ‘My Blog’.  What we have been doing is open and transparent.” He explained again the procedures of and the initial results achieved in the 2 stages of GB review over the past 2 years.  There were numerous references to the 2 stages of review of vegetated GB areas. 

(b) SDev expressly mentioned a few blog posts, in particular UD2 dated 24 November 2013.

(c) The blog post referred to the SDev’s responses to LegCo on 2 occasions.  The one dated 16 October 2013 was UD3, close in time to UD2.  At §27 of the Amended Form 86, the applicant referred to an earlier response by SDev to a question raised by a LegCo member.  The applicant could not have missed UD3.

42.Hence, if the applicant or his counsel had looked at the contents of the 6 July 2014 blog post, they would have discovered materials that spoke against the “change of government policy” pleaded.

43.Fourthly, the applicant or his counsel could not have missed UD4, ie minutes of the Panel Meeting.  This is because paragraph 38A added to the Amended Form 86, showed that counsel had apparently trawled through papers in connection with Panel Meetings. Paragraph 38A cared to refer to a panel paper of SDev dated 5 days before but not UD4.

44.At page 40 of UD4, the SDev was directly challenged as to whether or not the Administration had changed its policy and cheated the public; and whether the Administration had claimed that only devegetated, deserted or formed sites would be rezoned for housing development.  The SDev expressly referred to the 2 stages of GB reviews in his response and that the second batch of GB sites was vegetated.

45.Fifthly, the applicant was in possession of the minutes and papers of TPB meetings (§108 of the Amended Form 86 and Annex 3).  He could not have missed UD6.

46.Sixthly, Mr Dykes SC submits that the applicant had a pre-disposition to look for materials advantageous to his case.  He had not been cross-examined as to whether or not the non-disclosure was material.  He was not tracking personal blogs of the SDev and the occasional statements to LegCo which revealed the change of policy.  He relies on bits and pieces in the press, formed his view consistent with his personal preferences. 

47.I am afraid that it was precisely to prevent such kind of biased presentation of evidence that the principles governing full and frank disclosure were laid down.

48.All of the undisclosed documents showed a consistent government policy on 2-stage reviews of GB sites which had been made known to the public, LegCo Panel and TPB representers/commentors.  There was no secret change of policy as the applicant and his lawyers would want the court to believe.

49.It was plain that the applicant or the pleader exercising some degree of prudence and who understood his duty of full and frank disclosure would not have failed to inform the court of so many documents that were consistently against the applicant’s case and presented a twisted picture to the court.

50.One begins to understand why counsel pleaded the legitimate expectation in the Amended Form 86 as an “impression”, which fell short the requirement of being a clear, unambiguous representation devoid of relevant qualifications: Ng Siu Tung & ors v Director of Immigration (2002) 5 HKCFAR 1, §§91-99. (§§32 & 58 of the Judgment).  It was quite clear that papers trawled through prevented counsel from pleading a true case of legitimate expectation.

51.I am of the view that the applicant had turned a blind eye to the obvious, to say the least, if his non-disclosure was not deliberate.  The leave application simply lacks credibility and integrity. 

52.The 3^rd ground of opposition has no merits.

C6.  4^th ground – exercise of discretion not to set aside leave

53.Even if there has been material non-disclosure or misstatement of fact, the court nevertheless has a discretion not to set aside an ex parte order. This discretion will very rarely be exercised in favour of a person seeking to uphold the ex parte order in cases of deliberate non-disclosure or misstatement of material facts, and with great caution even in cases where such non-disclosure or misstatement was not deliberate.  Normally a court will not assist a party to retain an advantage to which he was not entitled.  Kan Hung Cheung, §18.

54.The court has to bear in mind the disciplinary, indeed penal, nature of the discretion that it has to exercise.  There is a deterrent factor in the discretion.  The court should also bear in mind the gravity of the non-disclosures, particularly in relation to the misleading of the Court.  Kan Hung Cheung, at §79.

55.This is a serious case of material non-disclosure. It twisted the government’s position, presenting it as having breached a promise never made.  Not only did the applicant show disregard of his duty of making full and frank disclosure but he also shifted the responsibility to TPB. Huge legal aid funds (approximately $1 million for the present summons and Yau Ka Po (No.2) respectively) were spent relating to his pursuit of leave.

56.The further impact in the present case was a threat to stop the supply of land aimed at tackling shortage of housing.  Time of sale of land and the existence of an application for judicial review may affect the land price and hence public revenue. 

57.Exercising the penal jurisdiction, I set aside the leave completely and decline to regrant it.

D.  ABUSE OF PROCESS

58.Mr Dykes SC’s submits that the jurisdiction to set aside leave for abuse of process seems to be reserved for clearly hopeless cases that are subject to “strike out’ by the court.  See R (Nine Nepalese Asylum Seekers) v IAT [2003] EWCA Civ 1892 at §15; R (Kumar) v SSCA [2007] 1 WLR 536 at §65. 

59.I do not think the categories of abuse of process are closed. See Fordham, Judicial Review Handbook, 6^th ed, §63.1.4. Much depends on the nature of the grounds for judicial review.

60.In a nutshell, the remaining grounds in this case (“the non‑LE grounds”) are that the CEIC’s Decision was tainted by the unlawful or irregular process before TPB (§70 of the Judgment).

61.Two stages are kept distinct under Ordinance.  At the first stage, TPB does not make a final determination of the rights of anybody but conducts an administrative consultative process.  It may entertain objections.  Its decision is decisive on the question of whether the draft plan should go to the CEIC, amended or unamended (together with a schedule of the objections under the Ordinance), but it is not decisive of the question of the final form of the OZP.  See Kwan Kong Co Ltd v Town Planning Board [1996] 2 HKLR 363, at p 373G to 374C, Litton VP (as he then was); the Harbour Case, ie Society for Protection of the Harbour Ltd v Chief Executive-in-Council & ors (No.2) [2004] 2 HKLRD 902, §61, Hartmann J.

62.At the second stage, CEIC may approve the draft plan notwithstanding that any requirements under the Ordinance have not been complied with: Kwan Kong, Liu JA, at 380 G-I.  The accompanying documents submitted by TPB to the CEIC are to enable the CEIC to consider the draft plan in substance, independent of TPB’s own consultation process. Even if there were any errors in the administrative process of the TPB, they would not necessarily vitiate CEIC’s decision: §§76 & 78 of the Judgment, citing §§57-65 of the Harbour case.

63.Once the DOZP was approved by CEIC, it became an approved plan under s.9(3) of the Ordinance. The DOZP was superseded and ceased to have any force and effect: Kwan Kong; Turbo Top Ltd v Town Planning Board, CACV 255 and 256/2011, 18 January 2012, §5.

64.Accordingly, the present case is liable to be dismissed on the ground that it is academic and that continuous pursuit of it is an abuse of process: Kwan Kong, per Liu JA at 380 G-I. 

65.Mr Dykes SC submits that both TPB and CEIC’s decisions can be quashed.  An example can be found in Smart Gain Investment Ltd v Town Planning Board, HCAL 12/2006 & HCAL 12/2007, 6 November 2007, at §128, A Cheung J (as he then was).

66.If the judicial review in Yau Ka Po (No.2) is successful, the matter can be remitted back to the CEIC pursuant to section 9 of the Ordinance.  However, Mr Dykes SC submits that the CEIC cannot prepare plans himself and has no power to direct enquiries. He can only engage the process before the TPB to a limited extent.  On the other hand, if the judicial review in the present case is successful, the court can remit the matter to TPB to start the process all over again.  The challenge in the present case is therefore not “academic”. 

67.For 4 reasons, I reject the arguments. 

68.Firstly, Kwan Kong is binding on this court.  Smart Gain did not refer to Kwan Kong.  Similarly, Turbo Top is distinguishable in that the stay granted there was to prevent submission of the DOZP to the CEIC, unlike the present case where the DOZP had already been approved by CEIC.

69.Secondly, assuming I am wrong, leave was given in respect of the non-LE grounds in Yau Ka Po (No.2) on the ground that it was arguable that Smart Gain may not apply only to cases with errors of fact.  It was also possible that CEIC was not alive to the errors or unfairness in TPB’s decision or he was aware of them but nevertheless approved the draft plan, and failed to provide reasons: §§71, 74 & 79 of the Judgment.

70.There is now evidence that prior to CEIC’s Decision on 8 September 2015, CEIC was informed merely of the existence of a pending application for leave to apply for judicial review in the present case, but not the proposed grounds or the underlying documents.  Accordingly, the aforesaid possibility in Smart Gain did not apply, and there are no merits in applicant’s attempt to seek to quash both the decisions of the TPB and CEIC.

71.Thirdly, any remedy that the applicant may wish to get under this case can be sought in Yau Ka Po (No.2) since the non-LE grounds have been advanced there.  Should the judicial review in Yau Ka Po (No.2) succeed, I see no reason why the court cannot remit the matter to the CEIC with appropriate directions on specific aspects of TPB’s decision, instead of quashing TPB’s decision and compel TPB to rewind the entire consultative process.

72.Fourthly, with respect to Mr Dykes SC, the argument that the CEIC only has executive but no planning power has been rejected in the Harbour case, at §§60, 62 and 63:

“60. While I agree that the Ordinance does not give the power to the Chief Executive-in-Council to go about the business of preparing draft plans or modifying approved plans, I do not agree that the Ordinance prohibits the Chief Executive-in-Council from making what Mr Mok has described as 'planning decisions'. To the contrary, I am satisfied that the Ordinance obliges the Chief Executive-in-Council to make planning decisions, often of a detailed nature, in a variety of circumstances.

[reference to Kwan Kong]

62. It must be remembered that, when a draft plan is submitted by the Board in terms of s.8 of the Ordinance, that draft must be accompanied by schedules detailing objections made to the Board during the course of its preparation of the draft plan and any amendments that have been made by the Board. There can only be one purpose for the obligation to submit these schedules. It is to enable the Chief Executive-in-Council to consider the draft plan in substance. Unless he considers the draft plan in substance how can he decide whether it should be approved, not approved or returned for reconsideration and, if returned for consideration, returned in what respect?

63. Similarly, in my view, when the Chief Executive-in-Council exercises his powers pursuant to s.12 of the Ordinance to consider revoking an approved plan in whole or in part or referring the plan to the Board for replacement or amendment he is again under a duty to consider the substance of all relevant matters that are, or should be, placed before him. How else can he properly decide whether, for example, to revoke a plan in full or only in part and, if in part, which part?” (underline added)

73.As the only body which can make a substantive decision on whether a draft plan should or should not be approved, the CEIC does not have just the limited powers submitted by Mr Dykes SC. The Harbour case shows that the CEIC may consider matters that should be placed before him. In that case, the CEIC himself obtained an engineering report.

74.Mr Mok SC additionally reminds the court not to lose sight of the impact on the administration in the court’s exercise of its remedial jurisdiction: Sir Clive Lewis, Judicial Remedies in Public Law, 5^th ed, §§12-035:

“The courts now recognize that the impact on the administration is relevant in the exercise of their remedial jurisdiction. Quashing decisions may impose heavy administrative burdens on the administration, divert resources towards re-opening decisions, and lead to increased and unbudgeted expenditure. Earlier cases took the robust line that the law had to be observed, and the decision invalidated whatever the administrative inconvenience caused. The courts nowadays recognise that such an approach is not always appropriate and may not be in the wider public interest. The effect on the administrative process is relevant to the courts’ remedial discretion and may prove decisive. This is particularly the case when the challenge is procedural rather than substantive, or if the courts can be certain that the administrator would not reach a different decision even if the original decision were quashed. Judges may differ in the importance they attach to the disruption that quashing a decision will cause. They may also be influenced by the extent to which the illegality arises from the conduct of the administrative body itself, and their view of that conduct.”

75.In the circumstances of this case, I consider it best to leave considerations of that kind to the judicial review stage (if it should go ahead) rather than the leave stage. 

76.In summary, I find it an abuse of process to continue the present case. 

77.Assuming I am wrong, Mr Dykes has pointed out that, eg, the failure to members of TPB to declare their interests may not be curable by remitting the matter to CEIC. 

78.Even accepting that the applicant can pass the test for “striking out”, the decision to set aside leave entirely under Section C above would have prevented this case from going forward.

E.  DELAY IN THIS SUMMONS

79.Applications for setting aside leave should be made timeously or not at all: To Kin Wah v Tuen Mun District Officer & ors (No 2) [2003] 4 HKC 213 at §25(3), per Cheung JA.  And yet TPB has taken out this summons only 3 months after the Judgment. 

80.It was of course desirable for the summons to be taken out earlier.  However, TPB has given a chance to the applicant to withdraw the present case.  So has the Judgment.  Between October 2015 and February 2016, the present case has been put on hold pending determination of the leave application and interim injunction in Yau Ka Po (No.2).  I fail to see how any delay has caused prejudice to the applicant.  This is quite distinguishable from To Kin Wah where the application for setting aside leave was taken out virtually on the eve of the hearing of the judicial review and was heard on the day the judicial review was heard.

F.  CONCLUSION

81.I find that there was serious material non-disclosure on the part of the applicant.  Had there been full and frank disclosure, leave to apply for judicial review in the present case would not have been granted.  The applicant has turned a blind eye to the obvious, to say the least.  Responsibility was shifted to TPB and his unidentified lawyers.  He should not be allowed to proceed under the guise of wider community interests.  In exercise of the penal jurisdiction of the court referred to in Kan Hung Cheung, leave should be set aside in its entirety and not regranted.  Alternatively, this judicial review should be dismissed on the ground that continuation of it will amount to abuse of process of the court.

G.  COSTS

82.On costs, I make an order nisi that the applicant should bear costs of the respondent with certificates for 2 counsel summarily assessed (on the basis of one fee earner) at $900,000.

83.As the applicant has insisted on proceeding with this case despite a prior chance given under the Judgment and his material non‑disclosure, the applicant should show cause in writing within 21 days as to why he should not personally bear his own and the respondent’s costs.  For that purpose, I require the Director of Legal Aid to provide to the court a costs statement in relation to the costs incurred on the applicant’s side, enclosing counsel’s fee notes.  If appropriate, I shall also fix the quantum that the applicant has to bear if I am satisfied that he should personally bear costs.

84.I will fix a hearing, if appropriate, after having sight of the applicant’s written statement showing cause. 

85.I thank counsel for their assistance.

Mr Philip Dykes, SC leading Mr Valentine Yim, instructed by Yip, Tse & Tang, assigned by the Director of Legal Aid, for the applicant

Mr Johnny Mok, SC leading Mr Jenkin Suen, instructed by the Department of Justice, for the respondent