Sunevision Holdings Ltd v. Hong Kong Science and Technology Parks Corporation

HCAL 1890/2018

[2019] HKCFI 1569

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1890 OF 2018

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Before: Hon G Lam J in Chambers

Dates of Written Submissions: 3, 6 and 11 June 2019

Date of Decision: 18 June 2019

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D E C I S I O N

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1.This is an application for leave to appeal against that part of the Decision I handed down on 9 May 2019 which refused leave for SUNeVision to amend its Form 86 by adding (i) paragraphs 17A, 17B and 73A in relation to the February 2010 Paper for BDAC (see paras 46‑49 of the Decision), and (ii) paragraph 37A in relation to a document submitted by Global Switch to the Corporation in April 2012 (see paras 51 & 56 of the Decision).

2.Pursuant to guidance given by the Court of Appeal in ZJ  v  XWN [2018] HKCA 436 at para 66 and Tsang Wing Kwai v Tsang Wing Fai [2018] HKCA 759 at para 24, and there being no objection from the parties, I directed that the application be dealt with on consideration of papers alone without an oral hearing.

3.The principles governing leave to appeal are not in dispute.  Under s 14AA of the High Court Ordinance, SUNeVision has to show that the intended appeal has a “reasonable prospect of success” or that there is “some other reason in the interests of justice” why the appeal should be heard.

4.Grounds 1 and 2 of the draft notice of appeal relate to the BDAC paper of February 2010. 

5.In my view, Ground 1 is not valid:

(1)   The words in parentheses in the proposed paragraph 17B are not about a policy of end‑users limitation.  They are an allegation that tolerating the acts of the grantees in serving customers who are not end‑users is a breach of the Policies (including the Lease Restrictions).  The Policies, as promulgated, do not refer to the issue of end‑users at all but to matters such as possession, control and services.  Whether the activity in question is a breach depends on the interpretation and application of the Policies as laid down, not on certain internal thinking on the part of the Corporation at one stage which was superseded and not adopted in the promulgation of the Policies.  The attempt to seize upon certain words in an internal paper will obfuscate rather than bring focus on the real issues.

(2)   SUNeVision’s reliance on paragraph 37C of the amendments, which was allowed, is misplaced.  In the Decision at §53, it was made clear that no complaint can be made about a non‑existent decision. Further, although “end‑users” is mentioned in paragraph 37C, the breach of policy is expressed in terms of possession, control and services, which are accepted to be concepts used in the Policies.

(3)   It is not correct to say the Decision handed down provided no reasons for not allowing the averment in parentheses in paragraph 17B, which was, and was put forward in argument as, part of the group of amendments included in paragraphs 17A, 17B and 73A.

(4)   SUNeVision has not sought to challenge the Data Centre Policy itself, which was promulgated after the BDAC paper of February 2010, and which did not include any reference to “end-user”.

(5)   See also the reasons in the next paragraph.

6.Ground 2 is also invalid:

(1)   The BDAC decided expressly to remove the words relating to “end‑users” which were used at a previous meeting.  The adoption of those words was therefore clearly a “temporary position” which was rejected subsequently.

(2)   SUNeVision has not been able to demonstrate why and how the BDAC paper would be relevant to what SUNeVision itself has submitted to be a question of law as to the proper interpretation of the Corporation’s own policies.  The suggestion that the BDAC paper “revealed” that the Corporation adopted an erroneous view of its own policies simply begs the question of what its policies properly mean.  SUNeVision’s contention that the BDAC paper “assists” in showing the Corporation misconstrued its own policies is a mere forensic point, without real legal basis.

(3)   The argument that there is “no prejudice” for the amendment to be allowed misses the point.  It is for SUNeVision to show analytical relevance of the proposed amendments.  In these vigorously contested judicial review proceedings with very voluminous affidavit evidence and exhibits, inclusion of what is really a distraction is itself prejudice, both to the other parties and to the court, and would be inimical to the resolution of these proceedings as expeditiously as is practicable.

(4)   SUNeVision’s alleged legitimate expectation is based on the promulgation of the Corporation’s Policy (see paragraph 27 of the Form 86).  There can be no expectation arising from a temporary internal position which is not alleged to have been promulgated or known to SUNeVision at the time.

(5)   SUNeVision’s skeleton raised certain substantive allegations not in the draft notice of appeal, including a suggestion that the Corporation had removed the end‑users limitation because of “difficult monitoring problem” (para 9(2)).  This is not borne out by the BDAC paper, which had summarised JSM’s advice which was to the effect that the factors to be considered in deciding whether the Lease Restrictions have been breached include the issues of possession, services and right of access, and that restricting the customer “level” as such would be difficult to monitor.  The “level” of the customers served was expressly not adopted as a touchstone under the policy.

(6)   It was also said in SUNeVision’s skeleton para 9(3) that the Corporation’s evidence in these proceedings presented the BDAC paper as the basis for the Corporation’s present position.  The affirmation of Siu Chik Hung Patrick §§47‑49 set out the history of how the Data Centre Policy was adopted.  But it was the position after the BDAC paper, with the reference to end‑users removed, which became the policy.  SUNeVision has not demonstrated how this is relevant to its existing case. 

7.I do not consider that there is any reasonable prospect of success in the intended appeal in relation to the BDAC paper.

8.Ground 3 relates to paragraph 51 of the Decision, which rejected the proposed paragraph 37A of the amendments.  This concerns part of the submission made by Global Switch to the Corporation in its lease application in April 2012.  It is important to recall that SUNeVision has not challenged the Corporation’s grant of the lease to Global Switch in 2012.  The present proceedings are concerned with the alleged failure to enforce the policies afterwards and the alleged wrongful inaction on the part of the Corporation in light of subsequent events.  It should also be noted that the proposed amendments in paragraphs 37D, 73B(1), 80A and 90A(1), which concern the pro forma services agreement provided by Global Switch to the Corporation (as the form of agreement to be entered into by Global Switch with its customers) and actually approved by the Corporation in November 2012, were allowed (see para 55 of the Decision). In the circumstances, paragraph 37A of the amendments seems to me quite peripheral.  Amendments are generally permitted to allow real questions in controversy to be determined: Natamon Protpakorn v Citibank NA  [2009] 1 HKLRD 455, §25; I do not think that in reaching the Decision, I disregarded the established principles on amendments.  I do not see any arguable error in para 51 of the Decision.  Overall I do not consider that there is reasonable prospect of success in the intended appeal on this point either.  Further, as has been submitted on behalf of the Corporation, leave should also be refused in the interests of procedural economy and proportionality: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, §30.

9.Accordingly, the application for leave to appeal is dismissed, with an order nisi that SUNeVision is to pay the Corporation’s costs with a certificate for 2 counsel.

Written submissions by Mr Benjamin Yu SC, Ms Sara Tong and Ms Bianca Yu, instructed by Woo, Kwan, Lee & Lo, for the Applicant

Written submissions by Mr Wong Yan Lung SC, Miss Eva Sit and Ms Esther Mak, instructed by Wilkinson & Grist, for the Respondent

The Interested Party did not take part in this application