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

HCAL 1890/2018

[2019] HKCFI 3051

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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D E C I S I O N

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1.Now there are parts of three affirmations or affidavits that are in issue before me which the respondent seeks to rely on and adduce for the purpose of the substantive judicial review hearing but which the applicant opposes.

2.In relation to the second affirmation of Mr Patrick Siu which was filed some time ago (on 29 January 2019), the paragraphs in question are 24, 25 and 26.  They are objected to on the basis that they contain argument and submissions.  It is, in my view, to some extent true that the paragraphs contain arguments and submissions, particularly paragraphs 24 and 25.  But in relation to paragraph 26, there are also matters of fact mingled with language that may be said to be argumentative, and in an application such as this, at such a stage of the proceedings, it is not profitable to conduct a microscopic analysis.  I will therefore allow paragraph 26 to be relied upon.  

3.The same, I think, applies to paragraphs 14 and 15 of Mr Siu’s third affirmation which was made in March 2019.  It seems to me there are matters of fact there although there are also words or sentences that may be said to be submissions in nature.  In the circumstances, it is again inappropriate to go into a detailed dissection exercise, and therefore those two paragraphs are also to be admitted.   

4.In respect of the fifth affirmation of Mr Siu, the paragraph in issue is paragraph 11.  The applicant takes the position that for that paragraph to be admitted, the respondent should be required to make disclosure of the complete chain of correspondence between MBJSM and the solicitors of HKCOLO.NET Limited as well as the records referred to in paragraph 11(7) of the affirmation based on which Mr Siu said the breach identified had been remedied to the Corporation’s satisfaction in July 2014. 

5.Mr Wong SC argued that the paragraph was adduced to deal with the new evidence in Mr Raymond Tong’s third affidavit which refers to certain emails in 2013 in particular, based on which he alleges there was an “on‑the‑run” (走鬼) practice by the grantees or the occupiers of the premises in question in the light of the inspection procedures of the respondent.  Mr Wong submitted that the allegation must be looked at in context and that seen in context, the complaint was about the alleged lack of reaction or lack of action on the part of the respondent in relation to the six specific incidents mentioned in the Form 86 despite that the respondent’s attention had been drawn by the applicant to them.    

6.It seems to me that the action that eventually led to the respondent being satisfied that the breach had been remedied is a relevant matter and that was specifically adverted to by Mr Siu as early as in his first affirmation. This is elaborated upon in the fifth affirmation on the basis of the respondent’s records which show, according to Mr Siu, that the breach had been remedied to the respondent’s satisfaction in July 2014.  As Miss Tong submitted, in relation to such an averment, one would normally expect the documentary source of the information to be disclosed.  It seems to me the document is also potentially discoverable under Order 24 rule 10.  Therefore, I think that the respondent should disclose the records referred to in paragraph 11(7) evidencing the basis on which the respondent was satisfied that the breach had been remedied.  

7.I do not, however, think that there is justification for requiring the complete chain of correspondence to be disclosed.  The fact that the applicant has obtained leave for judicial review does not mean that it has an entitlement to get a detailed account from the respondent of each and every step and each and every aspect relating broadly to the decision challenged.  One must have regard to the issues in question and be astute to prevent a fishing expedition.  It seems to me that for the reasons submitted by Mr Wong, there should not be a requirement for the disclosure of the complete chain of correspondence.

8.There was some complaint of lateness on behalf of the applicant.  We are indeed getting quite close to the substantive hearing of the judicial review but I am satisfied that the investigations referred to by Mr Siu would have taken time.  Bearing in mind that the respondent is normally entitled to the last word in judicial review proceedings and that the matters in paragraph 11 relate to the dealings between the Corporation and a third party to which the applicant was not privy, I consider that the evidence should go in.

(Submissions on costs)

9.Having regard to the late stage of this application and the fact that each side has had some measure of success in upholding the position they contend for, I think costs should be in the cause.  That applies to both the costs of the application and the hearing.

Ms Sara Tong, instructed by Woo, Kwan, Lee & Lo, for the Applicant

Mr Wong Yan‑lung SC and Ms Esther Mak, instructed by Wilkinson & Grist, for the Respondent

The Interested Party was excused from attendance