Tsang Kwong Kuen v. The Chairman of the Finance Committee of the Legislative Council

HCAL 44/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 44 OF 2015

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J U D G M E N T

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A.   Introduction

1.The Finance Committee (“the FC”) of the Legislative Council (“the LegCo”) at its 24^th meeting (“the Meeting”) held on 27 June 2014 discussed and debated the agenda item (“the Funding Item”) for the approval of funding for design and site investigation in relation to the development of residential areas in Kwu Tung North and Fanling North.

2.At one point of the meeting, Dr Fernando Cheung (a member of the FC) moved a motion (“the Motion”) pursuant to Rule 83(3A) of the Rules of Procedure of the LegCo (“the Rules of Procedure”)[1] asking for the withdrawal of Mr Ip Kwok-him (another FC member) from the meeting.  Dr Cheung’s basis for the Motion was that Mr Ip should not vote on the Funding Item according to Rule 84(1) as he had failed to disclose his alleged pecuniary interest in the subject matter.

3.The Chairman however decided not to put the Motion at that time to the FC for discussion and vote (“the Decision”).

4.Eventually, after further debates and discussions at the meeting, the Chairman put the Funding Item to vote, which was passed by a majority of 29 to 2 votes.  The Chairman declared that the FC approved the Funding Item.

5.This is now the applicant’s judicial review challenging the Decision.  The gist of the ground of judicial review as pursued at the hearing is that the Decision is unlawful since the Chairman, in refusing to put the Motion to the FC, had misdirected himself on the law that he had no discretion under the Rules of Procedure to deal with the Motion and propose the question under the Motion to the FC.

6.The applicant seeks a declaration that a motion under Rule 84(3A) for the withdrawal of a member of the FC on the ground of his failure to withdraw as required by Rule 84(1A) may be made without notice by any member of the FC after the Chairman has put the question of the original motion but before the vote is taken, and that under Rule 84(5), the Chairman has the discretion whether or not to propose the question upon the Rule 84(3A) motion.  The applicant has also sought an extension of time to apply for leave for judicial review since he was outside the statutory 3-month period under Order53, rule 4(1) of the Rules of the High Court (Cap 4A) when he made the leave application.

7.However, as emphasized by Ms Queenie Lau for the applicant, the applicant is not seeking any relief to disturb the result of the FC’s approval of the Funding Item.

8.The Chairman, represented by Mr Anthony Chan, opposes the judicial review.

B.   Background

9.The relevant background can be briefly stated as follows.[2]

10.The Funding Item was an agenda item entitled FCR(2014-15)2 “Recommendations of the Public Works Subcommittee made on 19 March 2014” for the Meeting.  The item was related to the paper PWSC(2013-14)38 on “Advance site formation and engineering infrastructure works at Kwu Tung North new development area and Fanling North new development area”.

11.On the day in question (ie, 27 June 2014), the FC held a total of three sessions of meeting starting at 4:00pm, 6:10pm and 8:40pm respectively.  The Funding Item was the first agenda item of the three meetings which was only voted on and approved at the third meeting.  After the vote, the Chairman adjourned the third meeting at 10:00pm.

12.The events relevant to the present application occurred during the second and third meetings.  In the second meeting, Dr Cheung moved a motion (“Dr Cheung’s Rule 83A Motion”) under Rule 83A[3] that Mr Ipshall not move any motion or amendment relating to a matter in which he had a pecuniary interest, whether direct or indirect, or speak on any such matter, except where he disclosed the nature of that interest.  Dr Cheung’s basis was that Mr Ip was a non-executive director of a company, which had worked on government projects before and had indicated that the North East development project would provide opportunity to the company to undertake further government projects.

13.In response to Dr Cheung’s Rule 83A Motion, the Chairman formed the view that it was up to the relevant member to declare any direct or indirect pecuniary interest.  The Chairman then reminded all FC members that they should declare their interest in accordance with Rule 83A, and that Rule 84 provides that if there is direct pecuniary interest involved, members should vote or otherwise according to the rule.  Dr Cheung and the Chairman had a further exchange on the matter during which the Chairman said he would not deal with Dr Cheung’s Rule 83A Motion because Rule 85[4] provided a mechanism to sanction members who failed to comply with Rule 83A.  During that exchange, the Chairman also mentioned that there was no available information to enable him to form any view that Mr Ip had violated Rule 83A.  Mr Ip himself also clarified that he did not have direct or indirect pecuniary interest in the item under consideration.  The Chairman’s dealing with Dr Cheung’s Rule 83A Motion is not under challenge in this application.

14.At the third meeting, Dr Cheung raised a point of order and then moved another motion under Rule 84(3A) (ie, the Motion) for the withdrawal of Mr Ip from the FC on the ground that Mr Ip had failed to declare his interest pursuant to Rule 84.  In relation to the Motion, the Chairman dealt with it as follows (as recorded in the official transcript):

“(00:30 :33)

...

張超雄議員：主席，我根據《議事規則》第84條(3A)款，我動議葉國謙議員沒有按照《議事規則》第84條申報利益，我要....要求他退席，是退席。

(00:30:59)

主席：我聽了你的這個意見，秘書可以拿回來，但是——先收回來吧，請工作人員收一收——但是，我很簡單告訴大家，剛才我已經處理過，亦希望大家不要再重複。

下一位發言的是何秀蘭議員，再下一位就是.......

毛孟靜議員：主席，未處理，有沒有搞錯啊？

李卓人議員：46條你沒理由不處理的。

(00:31:23)

主席：84呢，未到表決的時候，我們不會處理的，我現在再說一次，未到表決的時候，是未處理到84的。我們已看過了，我們現在告訴你，未到表決的時候，所以我已經先回覆你了。

下一位發言的是何秀蘭議員。” (emphasis added)

15.In other words, the Chairman did not act on the Motion on the basis that, as the meeting had not reached the juncture when the Funding Item was put to vote, a motion under Rule 84 would not be dealt with. This is the Decision now under challenge.

16.Later, when the Chairman put the Funding Item to vote, Dr Cheung did not seek to move the Motion again.  Eventually, the FC approved the Funding Item by a majority of 29 to 2 votes at the third meeting.

17.On 31 March 2015, the applicant applied for leave to judicially review the Decision.  At that time, the applicant was already six months beyond the maximum 3-month statutory period for making a leave application for judicial review against the Decision.

18.On 7 May 2015, the court granted leave on papers.  The ex parte leave was expressly stated to be granted without prejudice to the Chairman’s right to oppose the application also on the basis that extension of time should not be granted to the applicant.

19.The Chairman filed his evidence in opposition on 31 July 2015.  Pursuant to an order made by Chow J dated 14 July 2015, the applicant should by the latest applied for the fixing of the substantive hearing date of the judicial review by 28 August 2015.  However, the applicant did not do so.  The Chairman’s solicitors had by two letters respectively dated 2 November 2015 and 25 April 2016 sought the applicant’s confirmation as to whether he still intended to pursue the application.  The applicant’s solicitors did not respond to these letters.

20.By a letter dated 19 May 2016, the Chairman’s solicitors wrote to the court seeking further directions on the conduct of this matter and also asking the court to dismiss this application on the basis of the delay in prosecuting the proceedings.  The court then directed a directions hearing to be held on 17 June 2016 in relation to the future conduct of the matter.

21.On 14 June 2016, on the joint application of the parties, the court ordered by consent that, among others, the applicant shall by 17 June 2016 apply to fix the hearing of the judicial review in consultation with counsel’s diaries, failing which, the application shall be dismissed with costs to the Chairman.

22.This is the hearing of the judicial review.

C.   This judicial review

23.As I mentioned above, the applicant has only one ground of judicial review.  He says the Chairman in reaching the Decision had misdirected himself on the law that he had no discretion under Rule 84(5) to propose the question under the Motion to the FC before the Funding Item had been put to vote.

24.Relevant to the applicant’s ground of judicial review are Rules 84(1A), (3A) and (5), which provide as follows:

“84. Voting or Withdrawal in case of Direct Pecuniary Interest

(1) …

(1A) In the Council or a committee of the whole Council, a Member shall withdraw when a vote is taken on a question in which he has a direct pecuniary interest except where his interest is in common with the rest of the population of Hong Kong or a sector thereof or his vote is given on a matter of Government policy.

…

(3A) A motion for the withdrawal of a Member on the ground of his failure to withdraw as required by subrule (1A) may be moved without notice by any Member after the President or Chairman has put the question on the original motion but before the vote is taken.

…

(5) The President, Chairman of a committee of the whole Council or chairman shall have the discretion whether or not to propose the question upon a motion under subrule (3A) or (4); and in exercising such discretion he shall have regard to the nature of the question upon which the vote is taken and to the consideration whether the interest therein of the Member whose presence or vote is challenged is direct and pecuniary and not an interest in common with the rest of the population of Hong Kong or a sector thereof and whether the vote is on a matter of Government policy.

…”

25.Ms Lau’s submissions in support of this ground run as follows:

(1)   Dr Cheung was entitled to move the Motion pursuant to Rule 84(3A) even if without notice[5] as clearly provided therein.

(2)   Under Rule 84(5), the Chairman has a discretion to decide whether or not to propose the question upon the Motion made under Rule 84(3A).

(3)   The Chairman erred in failing to realise that he had such a discretion and had failed to consider how to exercise his discretion.

(4)   Accordingly, the Chairman acted in breach of Rule 84 by failing to properly deal with the Motion.

26.In my view, the ground is without merits for the following reasons.

27.It is now well established that under the non-intervention principle as applied in Hong Kong:

(1)   The court recognises that it is the exclusive authority of the legislature in managing its own internal processes in the conduct of its business, and that the court will not intervene on the regularity or irregularity of the internal process of the legislature but will leave it to determine exclusively for itself matters of this kind.

(2)   The court however will determine whether the legislature has a particular power, privilege or immunity, but it will not exercise the jurisdiction to determine the occasion on the manner of the exercise of any such power, privilege or immunity.

See: Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689 at paragraphs 27 - 43.

28.The same principle applies to the internal workings of FC’s meetings: Wong Yuk Man v Ng Leung Sing (HCMP 3217/2015, 22 January 2016, per Cheung CJHC and Lam VP) at paragraphs 11 - 28; [2015] 5 HKLRD 606, per Au J at paragraphs 30 - 56 and 59.

29.As submitted by Mr Chan for the Chairman, the Decision is one made by the Chairman regulating the FC’s meeting and hence, under the non-intervention principle, the court should not intervene on the Decision’s regularity or irregularity.

30.Ms Lau does not dispute the above propositions under the non‑intervention principle.  However, counsel argues that the present case is about whether or not there exists a discretion (and hence a power) for the Chairman to put the question under the Motion made pursuant to Rule 84(3A) and therefore falls within the exception to the non‑intervention as set out above. Counsel emphasises that this is not a case asking the court to decide whether the Decision was correctly made or not by the Chairman.  This is underlined by the declaratory relief sought by the applicant in this application.  The court therefore could and should determine the question raised.

31.With respect to Ms Lau, I am unable to agree.

32.Underpinning Ms Lau’s above contentions is the central argument that the Chairman in making the Decision was of the view that he had no discretion to deal with the Motion.  But that is incorrect.

33.As rightly pointed by Mr Chan, in making the Decision, the Chairman did not make any decision or come to any view that he had no power or discretion to propose the question under Rule 84(5).  What the Chairman decided when the Motion was put by Dr Cheung was that it was not the correct time to do it and it should be made after the Funding Item was put to vote.  This is borne out by the transcript of the meeting as quoted above.

34.In the premises, even assuming (without deciding) that the applicant’s case is correct that the Chairman did have a discretion under Rule 84(5) to propose the question under the Motion to the FC before the Funding Item had been put to vote, the explanations made by the Chairman as to why he decided not to deal with the Motion at that time is equally consistent with the position that the Chairman decided to exercise his discretion against proposing that question to the FC at that time.

35.In the premises, the Decision does not relate to any issue as to whether there exists a discretion for the Chairman to deal with a motion raised under Rule 84(3A) even before an original motion has been put to vote.  Whichever way one looks at it, the Decision concerns solely with the Chairman’s exercise of his power or discretion to regulate the FC’s proceedings.  The court under the non-intervention principle should and could not intervene on the correctness or otherwise of that exercise.

36.The ground of judicial review is without merit and should be dismissed.

37.Mr Chan for the Chairman has also advanced two alternative bases as to why the court should dismiss this application.  Given my above conclusion on the merits, I would only deal with these alternative grounds briefly.

38.First, Mr Chan submits that the court should not extend time for the applicant to apply for leave.  In this respect, effectively, the Chairman is seeking to set aside the ex parte leave granted to the applicant to apply for judicial review for reasons of delay.

39.Although it is now trite that any application to set aside an ex parte leave on the basis of delay should be taken out promptly and should best be disposed of before the substantive hearing of the judicial review, it is still a matter of case management for the court to decide whether or not to entertain such an application at the substantive hearing.  See: BI v Director of Immigration [2016] 2 HKLRD 520 (CA) at paragraphs 134 - 140.

40.In the present case, the applicant did not object to the court to deal with the Chairman’s application to set aside leave for delay at this substantive hearing, and in light of the fact that leave is granted expressly without prejudice to the Chairman to oppose it on the basis that leave should not be granted for delay, I think this is an appropriate case for the setting aside application to be dealt with at this hearing.  Cf: BI, supra, at paragraphs 134 and 140.

41.The explanation provided by the applicant for the delay is essentially that it had taken time for him to apply for and be granted legal aid.  However, it is now well recognised that time taken to apply for legal aid by itself generally does not amount to a good reason to extend time: Re Thomas Lai [2014] 6 HKC 1 at paragraph 48(1) and (2) and the cases cited therein.

42.When this lack of a good explanation for the delay is considered together with my above conclusion that the applicant’s ground of judicial review is without substantive merit, on this basis alone, I would refuse to grant an extension of time.  I therefore would alternatively set aside the ex parte leave previously granted to the applicant to apply for judicial review.

43.Second, the Chairman also contends that the judicial review should in any event also be dismissed on the basis that the applicant lacks the necessary locus in bringing it.

44.In this respect, I agree with Mr Chan’s following submissions that the applicant lacks the necessary locus in this application:

(1)   The locus of an applicant is relevant both to the leave stage as well as the substantive hearing.  At the leave stage, the court will only need to be satisfied that the applicant is prima faciea person with the necessary sufficient interest, ie, it is a threshold question.  The prima facieview so formed, if favourable to the applicant, may alter on further consideration in the light of further evidence that may be before the court at the substantive hearing.  See: IRC v National Federation of Self Employed and Small Business Ltd [1982] AC 617 at 642F-H, perLord Diplock and at 645F, perLord Fraser.

(2)   Moreover, the question of sufficient interest cannot be considered in the abstract or as an isolated point.  It must be taken together with the relevant legal and factual context: the IRCcase at 631C-D, perLord Wilberforce, and at 653B, per Lord Scarman.

(3)   In Re Wong Chi Kin(unreported), CACV 80/2014, 26 September 2014, per Lam VP (giving the judgment of the Court of Appeal) explained at paragraph 11 the relevant principles on locus in public law as follows:

“Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Pic [1986] 1 WLR 763 at p.773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.”[6] (emphasis added)

(4)   As emphasized by Ms Lau for the applicant, the decision under challenge in the present case is not the FC’s approval of the Funding Item.  What is being challenged is the Chairman’s decision not to deal with the Motion under Rule 84.

(5)   Accordingly, even bearing in mind that the applicant was born and continues to live and work (and own properties) in the area affected by the works,[7] it is difficult to see what direct or obvious interest does the applicant have in challenging the Decision and seeking the declaratory relief.

(6)   Looking at it from another way, supposing that the Chairman did propose the question upon the Motion and supposing that the Motion was passed and Mr Ip withdrew from the meeting as a result, the FC would still have approved the works as there were 29 votes in favour (including Mr Ip’s vote) and 2 votes against. At any rate, the applicant is not challenging the voting result.  Tested in this way, it is thus readily apparent that the applicant has no direct or obvious interest to challenge the Decision and seek the declaratory relief.

(7)   Insofar as the applicant is saying that he has an alleged public interest in seeing that the procedures for the debate in the FC be observed, this is in my view insufficient to found him the necessary locus (when considered at this substantive stage) in light of the existence of Dr Cheung as a challenger who clearly has a much greater and better interest in bringing the judicial review, and the lack of merits in any event in the ground of judicial review.

45.In the premises, I would also dismiss the judicial review on the basis that the applicant lacks the necessary locus to bring it.

D.   Conclusion

46.For all the above reasons, I would dismiss this judicial review.  Further, I would in any event also refuse to grant an extension of time to the applicant and therefore would set aside the ex parte leave granted to the applicant for delay.

47.There is no reason why costs should not follow the event.  I make an order nisi that costs of this judicial review be to the Chairman to be taxed if not agreed.  The applicant’s own costs be taxed in accordance with legal aid regulations.  This costs order shall become absolute 14 days from today, unless any of the parties applies to vary it by summons.

Ms Queenie Lau, instructed by Ho, Tse, Wai & Partners, assigned by Director of Legal Aid, for the applicant

Mr Anthony Chan, instructed by Lo & Lo, for the respondent