Designing Hong Kong Ltd v. The Town Planning Board

HCAL 49/2014

[2018] HKCFI 2641

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 49 OF 2014

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D E C I S I O N

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A. INTRODUCTION

1.This is an application by Madam Ho Loy to join as an applicant in these proceedings.

2.This judicial review was commenced more than four years ago in May 2014 by the applicant Designing Hong Kong Ltd (“Designing Hong Kong”) to challenge the decision (“the Decision”) of the Town Planning Board (“the TPB”) made in February 2014 not to amend the Draft Outline Zone Plan No S/H24/8 (“the Draft OZP”) in relation to a 150-metre strip of land along the north shore of the Hong Kong Island (“the Site”).  The Site has been marked for the planned Central Military Dock.

3.This court granted leave to Designing Hong Kong to apply for judicial review on 21 July 2014.  Upon granting leave, the court also ordered an interim stay of the submission of the Draft Plan to the Chief Executive in Council for approval.

4.From the time after leave was granted to May this year, the judicial review has not progressed because the parties were involved in Designing Hong Kong’s application for a protective costs order (“PCO”).

5.Designing Hong Kong’s PCO application was however refused by the courts:

(1)   By a judgment handed down on 30 April 2015 (“the CFI Judgment”), this court refused the application.  Designing Hong Kong appealed the refusal to the Court of Appeal.

(2)   By a judgment handed down on 16 February 2017 (“the CA Judgment”), the Court of Appeal dismissed Designing Hong Kong’s appeal and upheld the refusal to grant the PCO.  Designing Hong Kong appealed the CA Judgment to the Court of Final Appeal.

(3)   By a judgment dated 15 May 2018 (“the CFA Judgment”), the Court of Final Appeal also dismissed the appeal and upheld the refusal to grant the PCO.

6.It should be noted that in support of the PCO application, Designing Hong Kong has filed evidence to confirm under oath that (a) other than Designing Hong Kong itself, there were no other individuals and organisations which had intended or had the resources to bring a judicial review against the Decision, (b) if the PCO was not granted to it, it would not and did not have the means to continue the judicial review to an end.  In the evidence,[1] it was specifically mentioned that Madam Ho did not “feel able” to bring the judicial review since she was “already involved in other substantial litigation (including facing a criminal charge).”  She also said she did not have “the legal assistance she would need either to draw the papers to initiate a judicial review or to support an application for legal aid to enable her to do so”.

7.Upon the dismissal of the appeal by the Court of Final Appeal, Madam Ho however then applied for legal aid on 21 May 2018 (that is about a week after the handing down of the CFA Judgment) to join as an applicant in this judicial review.  When the TPB refused to consent to the joinder, Madam Ho issued the summons for joinder on 20 July 2018.

8.After the joinder summons was taken out by Madam Ho, Designing Hong Kong agreed to the making of a consent order dated 30 August 2018 ordering that Designing Hong Kong do cease to be a party to the judicial review and, subject to the dismissal of the summons by the court upon determination, leave be granted to it to discontinue this judicial review.

B.    THIS JOINDER APPLICATION

9.There is no dispute that the court has jurisdiction to order a joinder in judicial review.  In the context of the usual 3-month time limit for commencing leave for judicial review and the obvious lateness in this application in this case, it is also common ground that, analogous to an application for extension of time to commence a judicial review,[2] the court should consider the following discretionary factors in determining this application:

(1)   Length of delay

(2)   Explanation for the delay

(3)   Merits of the substantive application

(4)   Prejudice

(5)   Question of public importance.

10.I will therefore look at these factors in turn as follows.

B1.   Length of delay

11.There is no question that there is a significant delay of some four years in this application.  This is a substantial delay, in particular in light of the three months’ time limit imposed under our rules.

12.In this respect, accepting that four years is a very long period, Mr Pao SC for Madam Ho has however urged this court to view this length of delay in the particular context that the four years were indeed spent on Designing Hong Kong’s PCO application.  In gist, the delay is not an unreasonable or improper one, and effectively has nothing to do with Madam Ho. In particular, says Mr Pao, Madam Ho indeed acted promptly to apply for legal aid and seek to join in this judicial review after the handing down of the CFA Judgment.

13.I am unable to agree.  It must be firmly borne in mind that it is always open to Madam Ho to apply for judicial review herself or join in these proceedings much earlier, in particular after the PCO application was first dismissed by this court in April 2015.  Madam Ho is no stranger to judicial review applications and she must be fully aware of the 3-month time limit imposed by the law to apply for judicial review.

14.In the premises, one must turn to look at Madam Ho’s explanations, if any, for the delay.

B2.   Explanation for the delay

15.Madam Ho has filed an affirmation in support of this joinder application.  In relation to the delay, all that Madam Ho has offered in evidence is at paragraphs 5 - 9, and 16 as follows:

“5. Firstly, I have had a keen interest in having the Issue under Challenge reviewed by the Court.

6. The Issue under Challenge will affect the public’s right to use and enjoy the Central Harbourfront. Being a Hong Kong permanent resident, I verily believe that it is in my interest to have an impartial body, i.e. the Court, to determine the Issue under Challenge.

7. Secondly, I was involved in these proceedings in a capacity other than as an Applicant.

8. On 12 March 2014, I attended a meeting of the Central Harbourfront Concern Group (‘CHCG’) to discuss the Issue under Challenge. During the meeting, we discussed the possibility of my launching the judicial review in these proceedings but I was not able to do so because I was occupied with other substantial litigation at the time and I was unable to obtain legal assistance to seek legal aid or apply for relief from the Court. Now produced and shown to me marked exhibit ‘HL-1’ is a copy of the Seventh Affirmation of Paulus Johannes Zimmerman dated 22 October 2016 under CACV 184/2015, where the deponent discussed my participation in the said meeting at paragraphs 5 to 7.

9. Although I was not able to launch the judicial review, I tried to support the judicial review by seeking funds from the public for the current Applicant for the purpose of these proceedings. Now produced and shown to me marked exhibit ‘HL-2’ is a copy of the letter from Mr. Martin Turner, Chairman of the Hong Kong Cycling Alliance dated 14 June 2018 in relation to my fundraising efforts for the current Applicant.

…

Necessity of my application to be joined as an Applicant

16. Following the publication of the Court of Final Appeal’s decision in FACV 4/2018 (15 May 2018), I learnt that the current Applicant intends to withdraw from and/or discontinue these proceedings due to the absence of a PCO. I made inquiries with my current solicitors and counsel, seeking preliminary advice on the status of these proceedings. I was advised by my solicitors and verily believe that without an Applicant, these proceedings will be discontinued. In order to ensure that the Issue under Challenge will be effectually and completely determined by the Court, I sought and obtained their pro bono assistance to make an application for legal aid to make an application to be joined as an Applicant in these proceedings.”

16.As pointed out by Mr Mok SC for the TPB, there are effectively no explanations made by Madam Ho as to why she did not consider making an application earlier during the course of these four years.  Worse still, Madam Ho’s evidence is indeed that:

(1)   She made a conscious decision on her own for her own reasons not to apply for judicial review to challenge the Decision even before Designing Hong Kong had commenced this judicial review.  This decision was made as early as March 2014 (ie, only a month after the Decision) and well before Designing Hong Kong took out this judicial review.[3]

(2)   She was fully aware of Designing Hong Kong’s judicial review as she sought help raising funding for it.[4]

17.In the premises, I agree with Mr Mok that Madam Ho cannot be better off by riding on Designing Hong Kog’s present judicial review:

(1)   On her own case, regardless of whether Designing Hong Kong had commenced this judicial review or not, she would not have applied for judicial review herself in 2014.  As mentioned above, it is indeed Designing Hong Kong’s evidence that it had to apply for judicial review because no one else (including Madam Ho) would be prepared to do so to challenge the Decision.

(2)   Further, other than providing for reasons for not commencing proceedings in March 2014, she has not provided explanations as to why she did not come forward to apply for substitution during 2014 to 2018. This is particularly telling as, while fully aware of the existence of Designing Hong Kong’s present judicial review, it is not her evidence that she is not aware of the refusal of Designing Hong Kong’s PCO application in April 2015 and May 2017 respectively by this court and the Court of Appeal.  In the premises, one can take it that Madam Ho simply does not have any explanations, let alone valid and reasonable explanations, as to why she did not come forward to apply for substitution earlier during 2014 to 2018.

18.In the premises, there are no satisfactory explanations for the significant delay.

19.The lack of a satisfactory explanation together with the significant delay in this case must weigh heavily against granting the joinder application.

B3.   Merits of the judicial review

20.I have granted leave to apply for judicial review on the grounds as set out in the Amended Form 86.  On that basis, I accept that at the leave stage where the TPB has not filed its substance evidence, the judicial review is reasonably arguable with a realistic prospect of success.

21.But as Kwan JA observed in AW at paragraphs 33 and 35, in an application for extension of time for delay, the court is entitled to delve more deeply into merits than that at an ex parte leave stage to determine whether the indulgence sought should be granted.

22.In the present case, I would not say the merits of this judicial are so strong that it should overwhelm the significant delay in the present application, coupled with the lack of any satisfactory explanations for the delay, in favour of granting the application.  In particular, it is trite that merits is by no means the sole criterion in determining whether extension of time should be granted.[5]

B4.   Prejudice

23.Under this Mr Pao submits that the respondent suffers no prejudice if the joinder application is allowed.  Unlike an entirely fresh application for judicial review out of time, there is already on foot Designing Hong Kong’s judicial review, and the Decision has since 2014 been subject to a challenge.  Allowing Madam Ho to join as an applicant replacing Designing Hong Kong is effectively no different from Designing Hong Kong continuing the judicial review.  This would be the same as if (a) Designing Hong Kong decided to continue to participate in this judicial review without a PCO, or (b) Designing Hong Kong was successful in obtaining a PCO in the CFA.

24.With respect, I accept Mr Mok’s submissions that this is misconceived.

25.First, it would be an abuse of process if Designing Hong Kong were allowed to retract from its professed stance that it could not (and would not) continue with the judicial review in the absence of PCO.[6]  In any event, as a matter of fact, Designing Hong Kong has decided not to continue with the judicial review.

26.Second, I am also satisfied, as submitted by the TPB, that there is prejudice caused to good administration if the joinder application is allowed at this stage after a four-year delay:

(1)   As a result of the judicial review, the court ordered an interim stay of the submission of the Draft OZP to the Chief Executive in Council since 23 July 2014.  This has resulted in a delay of over four years in handing over the Site to the Hong Kong Garrison for military use after the requisite legislative procedure.[7] Such delay of the handover and the use of the Site as the Central Military Dock must, on any count, be detrimental to good administration.

(2)   Madam Ho’s belated joinder application would significantly prolong the judicial review since other representers or commenters could also make similar joinder application, whether at this point or some time in future.  This would be prejudicial to good administration and governance for the judicial review proceedings and add uncertainties to the plan-making process.

(3)   The above delay begs the question as to when Madam Ho was in a position to come forward to apply for substitution of Designing Hong Kong.  As submitted, Madam Ho has adduced no evidence in this respect.  It is obvious that if Madam Ho came forward earlier, the TPB would not have incurred substantial costs and time in dealing with Designing Hong Kong’s PCO application and appeals, and the judicial review would have been resolved much quicker.  To allow Madam Ho to be belatedly joined in these circumstances would thus occasion material prejudice to the TPB and the public interest at large.

(4)   Finally, the TPB had incurred substantial costs in defending the PCO application and appeals on the basis that, unless a PCO is granted, the judicial review will be discontinued.  The picture as presented by Designing Hong Kong (with Madam Ho’s support) was that, despite the widely publicized proceedings, nobody (including Madam Ho) had come forward to offer to replace Designing Hong Kong.  If this had not been the case (as presented by Designing Hong Kong), such that someone else (particularly Madam Ho) would have come forward, the TPB would not have been put to the time and considerable expense of having to fight Designing Hong Kong’s PCO application all the way to the CFA.  In this respect, it must be noted that Designing Hong Kong would not have been in a position to (or continue to) apply for a PCO if there is another person (such as Madam Ho) who has applied for judicial review or to join in this judicial review.

B5.   Question of general public importance

27.This is as I see it the fundamental point relied on by Mr Pao in support of this joinder application.  Leading counsel submits that the courts at all levels have consistently accepted in the PCO application that this judicial review is a public interest litigation, in that it raises issues of general public importance, and that these issues should be resolved by the court.[8]

28.It is not disputed that the existence of questions of general public importance or matters of public interest can often constitute good reasons for an extension of time and are relevant in the present circumstances:  Fordham QC, Judicial Review Handbook (6^th edn) at paragraph 26.3.9; Lewis, Judicial Remedies in Public Law (5^th edn) at paragraph 9-040; R v Secretary of State for the Home Department, ex p Ruddock [1987] 1 WLR 1482 at 1485G; R (on the application of the Law Society) v Legal Services Commission [2010] EWHC 2550 at paragraphs 126 - 127.

29.However, it must also be noted that this is but one of the factors that the court should take into account in considering whether to grant an extension of time (or, as in the present case, to allow joinder out of time).  Depending on the circumstances of each case, this factor may be a very important factor, but the court still has to engage in a balancing exercise by weighing all the factors to decide whether or not to grant an extension of time.  The court must also respect and have regard to the statutory time limit imposed, for obvious good reasons in public law, in making an application for judicial review expeditiously.

30.In the present case, given the very significant delay of some four years in the application coupled with the absence of any satisfactory explanations for the delay, and the prejudice caused to good administration, I do not think the fact that this judicial review raises questions of public importance alone would amount to such “good reason” to overbear these other factors in favour of granting the joinder now.

C.   CONCLUSION

31.For all the above reasons, having taken into account all the relevant factors into consideration, Madam Ho has failed to satisfy me that there is good reason for me to exercise the discretion to allow her to join as an applicant in this judicial review.[9]

32.I would therefore dismiss her joinder application with costs to the TPB, to be taxed if not agreed, with certificate for two counsel.  Madam Ho’s own costs be taxed in accordance with legal aid taxation.

Mr Jin Pao SC, leading Mr Wilson Leung, instructed by Daly, & Associates, assigned by Director of Legal Aid, for Ms Ho Loy

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