Hong Kong Telecommunications (Hkt) Ltd v. Secretary for Commerce and Economic Development and Another

HCAL 448/2018

[2018] HKCFI 2385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 448 OF 2018

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DECISION

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INTRODUCTION

1.This is the Applicant’s application for leave to appeal against the court’s order dated 3 October 2018 dismissing the Applicant’s application for disclosure or production of various documents referred to in its summons dated 24 April 2018 (“the Disclosure Application”).

APPLICABLE PRINCIPLES

2.The test for deciding whether to grant leave to appeal under Section 14AA of the High Court Ordinance, Cap 4, is well established.  Leave to appeal shall not be granted unless (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interest of justice why the appeal shall be heard.  For this purpose, a reasonable prospect of success involves the notion that the prospect is more than “fanciful”, without having to be “probable” (see SMSE v KL [2009] 4 HKLRD 125, at paragraph 17 per Le Pichon JA).

3.Further, “even if the threshold test of reasonable prospect of success is satisfied, the court still retains a discretion whether to grant leave, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion.  The court may refuse leave to appeal in the interests of procedural economy and proportionality” (see Waddington Limited v Chan Chun Hoo Thomas and Others, HCMP 1327/2017, 18 October 2017, at paragraph 9 per Kwan JA (giving the judgment of the Court of Appeal)).

DISCUSSION

4.The background facts relevant to the Disclosure Application were set out in the court’s decision dated 3 October 2018 (“the Disclosure Decision”), to be read in conjunction with an earlier decision of the court dated 24 August 2018 relating to the Applicant’s application for interim relief, and will not be repeated here.  For the purpose of this decision, I shall adopt the expressions and abbreviations as defined in the Disclosure Decision.

5.A total of 6 intended grounds of appeal are raised in the Applicant’s draft Notice of Appeal.

6.Grounds 1 to 3 in the draft Notice of Appeal relate to the scope of the duty of candour on the part of the Respondents.  At paragraph 20 of the Disclosure Decision, the court held, following the decision of the Court of Appeal in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77, at paragraph 11(6) and (7), that the scope of the duty of candour is limited by reference to the issue or issues before the court, the determination of which must be based on the grounds of judicial review as raised in the Form 86.  This view is consistent with the recent decision of the English Divisional Court in R (Hoareau) v Secretary of State for Foreign and Commonwealth Affairs [2018] EWHC 1508 (Admin), at paragraph 20, where Singh LJ stated the following –

“The duty of candour and co-operation which falls on public authorities, in particular on HM Government, is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide.”

7.On behalf of the Applicant, Mr Benjamin, SC argues that the duty of candour is not limited by or confined to the issues raised in the Form 86, but extends to the relevant facts and reasoning underlying the decision challenged.  In support of this proposition, Mr Yu relies on various general statements of principle, including R v Lancashire County Council, ex p Huddleston [1986] 2 All ER 941, at 945 per Sir John Donaldson MR, Belize Alliance v Department of the Environment [2004] UKPC 6, at paragraph 86 per Lord Walker of Gestingthorpe; Tweedes v Parades Commission for Northern Ireland [2007] 1 AC 650, at paragraph 4 per Lord Bingham of Cornhill; AHK v Secretary of State for the Home Department [2012] EWHC 1117, at paragraph 22 per Ouseley J; as well as a discussion paper prepared by Cranston and Lewis JJ for the Lord Chief Justice of England and Wales, Defendant’s Duty of Candour and Disclosure in Judicial Review Proceedings, at paragraphs 9 to 13, which I do not propose to set out in this decision.  In my view, the scope of the duty of candour in the public law context is a matter of considerable public importance.  The proposition advanced by Mr Yu has a “reasonable prospect of success” for the purpose of seeking leave to appeal, which is not a high threshold.  Also, I consider that authoritative guidance from the Court of Appeal on this matter would be helpful to judges at first instance, and thus leave to appeal ought to be granted.

8.I should add that even if the Applicant is correct in law in relation to the scope of the duty of candour, it does not necessarily follow that the Applicant will be entitled to disclosure of a full, unredacted, version of the Plum Report, because the Applicant will still have to demonstrate that the relevant facts and the reasoning underlying the Decision have been obscured by the redaction of the Plum Report, and that disclosure ought to be made notwithstanding the issue of confidentiality.  These matters will, however, only arise if the Court of Appeal should agree with the Applicant’s contention regarding the scope of the duty of candour.

9.Grounds 4 to 5 in the draft Notice of Appeal relate the complaint of “irrationality” (Ground 2 in the Form 86) and the complaint that the Authority failed to carry out a full “refarming” cost-benefit analysis under paragraph 4.4 of the SPF (Ground 3 in the Form 86).  For the reasons given in paragraphs 21 to 23 of the Disclosure Decision, I am not convinced that the redacted parts of the Plum Report are relevant to either of those complaints, and I do not consider that the proposed grounds of appeal are reasonably arguable or have reasonable prospects of success.

10.Ground 6 in the draft Notice of Appeal relates to the adequacy or sufficiency of the proposed Confidentiality Ring.  As earlier mentioned, this matter will become relevant if the Applicant is correct in its contention regarding the scope of the duty of candour.  In the circumstances, I consider that leave to appeal should also be granted in respect of this ground.

11.I appreciate that, depending on the timing of the hearing of the appeal, the outcome of the appeal, and (assuming that the appeal shall be successful) the information which may be derived from the full, unredacted, version of the Plum Report and possibly other documents to be disclosed, the Applicant may apply to amend the Form 86 and further evidence may have to be filed by the parties, with the consequence that the hearing in February 2019 may be derailed.  This will be regrettable.  There are, however, a number of different possible scenarios which it is not possible to predict at this stage with any degree of accuracy.  I do not consider that I should refuse to grant leave to appeal on the mere possibility that the substantive application may not be able to be heard in February 2019.

DISPOSITION

12.For the foregoing reasons, I grant the Applicant leave to appeal limited to Grounds 1, 2, 3 and 6 of the draft Notice of Appeal.  The costs of this application shall be in the cause of the appeal, with certificate for 2 counsel.

13.Lastly, it remains for me to thank counsel for their assistance rendered to the court.

Mr Benjamin Yu, SC and Mr Roger Beresford, instructed by Ms Baker & McKenzie, for the Applicant

Mr Abraham Chan, SC and Mr Joshua Chan, instructed by Department of Justice, for the 1^st Respondent

Mr Abraham Chan, SC and Mr Joshua Chan, instructed by Ms Eversheds Sutherland, for the 2^nd Respondent