Shared (Asia Pacific) Limited v. Zn v. Secretary for Justice and Others

FACV No. 4 of 2019

[2019] HKCFA 35

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2019 (CIVIL)

(ON APPEAL FROM CACV NO. 14 OF 2017)

_________________________

_________________________

_________________________

D E T E R M I N A T I O N

_________________________

The Appeal Committee:

1.By summons dated 2 September 2019, Shared (Asia Pacific) Limited applies, as Intended Intervener, to be joined as a party to this appeal and to be heard at the hearing.  The substantive appeal by ZN against the Secretary for Justice and three other parties is due to be heard by the Court on 4 December 2019.

2.Directions were given that the Intended Intervener’s summons be determined by a single permanent judge on paper without an oral hearing unless otherwise directed and a timetable was fixed for the exchange of affirmations and/or submissions by the parties to the appeal and the Intended Intervener.

3.The Intended Intervener’s summons was supported by an affirmation.[1] Pursuant to the directions referred to, written submissions have been filed on behalf of respectively the appellant, ZN, and also the respondents dated 25 September 2019.  Further, written submissions in reply have been filed on behalf of the Intended Intervener dated 2 October 2019.

4.At the direction of a single permanent judge,[2] the summons has been placed before the Appeal Committee for determination on the papers.

5.The Intended Intervener has not taken part in the proceedings to date.  It was not a party before the judge who heard the appellant’s application for judicial review.[3] Prior to the hearing in the Court of Appeal on appeal from the judgment of Zervos J (as he then was), the Intended Intervener applied to intervene in the appeal hearing.  That application was refused by the Court of Appeal[4] and the appeal hearing took place without the participation of the Intended Intervener as a party.

6.The Intended Intervener’s present application for joinder is opposed by the respondents.  The appellant takes a neutral stance on the joinder application.

7.The principles governing the Court’s exercise of its power to grant leave to a party to intervene in an appeal are set out in QT v Director of Immigration (Leave to Intervene) at [10] to [18].[5] The parties are in agreement that those principles are the applicable principles by which the Intended Intervener’s application is to be determined.

8.Having considered the parties’ respective submissions on this application, we are satisfied that counsel respectively representing the appellant and the respondents will be able to present full and comprehensive submissions on the issues arising on the appeal and we are not satisfied that the joinder of the Intended Intervener is necessary to give the Court a more rounded picture than it will otherwise obtain.  It is telling that the appellant takes a neutral stance on the application and is unable to opine on whether the Intended Intervener’s submissions will be merely repetitive of submissions that will be made in any event.  In all the circumstances, we decline to exercise our discretion to order the joinder of the Intended Intervener as a party to this appeal.

9.Accordingly, we dismiss the Intended Intervener’s summons.

Written Submissions by Mr Kay K. W. Chan and Ms Jaime C. H. Lam, instructed by Khoo & Co., for the Intended Intervener

Written Submissions by Mr Raza Husain QC and Mr Azan Marwah, instructed by Patricia Ho & Associates, assigned by the Director of Legal Aid, for the Appellant

Written Submissions by the Department of Justice, for the 1^st to 4^th Respondents