Lo Kin Hei Chairman of the Southern District Council v. The Secretary of the Southern District Council

HCAL 1827/2020

[2021] HKCFI 1920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1827 OF 2020

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Before: Hon Chow JA (sitting as an additional judge of the Court of First Instance) in Chambers (Open to Public)

Date of Hearing: 30 June 2021

Date of Decision: 30 June 2021

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DECISION

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1.There are 4 matters to be dealt with under the Applicant’s summons filed on 9 June 2021. There is also an application to amend that summons by the Applicant’s further summons filed on 24 June 2021.

2.The first matter concerns the Applicant’s application for leave to amend the Form 86.  Mr Kat, SC has confirmed this morning that the Applicant no longer pursues the proposed amendment to add paragraph 44A, and Mr Yu, SC has confirmed that the Respondent does not object to the rest of the amendments.  I therefore grant leave to the Applicant to amend the Form 86 in the form of the draft attached to the Applicant’s summons dated 9 June 2021 save that paragraph 44A shall be omitted.

3.The second matter concerns the Applicant’s application for discovery or disclosure of Civil Service General Circular No 4/2020 (“GC 4/2020”), which it is said documented the new “non-cooperation” policy of the Government vis-à-vis District Councils. Regardless of whether the application is treated as one for discovery under Order 24 of the Rules of the High Court, Cap 4A, or pursuant to the Respondent’s duty of candour, it is clear that the obligation to make discovery or disclosure depends on the facts, the issues before the court and the basis of the challenge mounted in the judicial review (see Hong Kong Telecommunications (HKT) Ltd v Secretary for Commerce and Economic Development [2019] 1 HKLRD 833, at §57).

4.In this regard, it is important to note that the present challenge is not that the Respondent failed to act in accordance with a policy or established practice or procedure of the Government.  It is also not a case where it is said that a Government’s policy, practice or procedure is contrary to law.  In such cases, it is plain that production of the original policy, or the best evidence of the policy, is essential to enable the court to properly deal with the challenge.

5.The challenge in the present case is a narrow and specific one, namely, that the Respondent failed to carry out her duty to circulate papers for, and keep, record, prepare and uphold the minutes and audio recording of, the proceedings of the 5^th Meeting of the Southern District Court held on 2 July 2020 relating to Agenda Item No 10.  It is not said that the Respondent had a discretion to exercise, and failed to exercise the discretion properly.  What is said is that she had a legal duty, but failed to perform her duty.  That being the position, it does not in fact matter whether she made the decision herself, or simply acted upon the direction or dictation of someone else when making the decision in question. Either she has, or has not, performed her legal duty.  The question for determination by the court is a short, albeit not necessarily a simple, one.

6.As is now clear from the evidence filed by the Respondent, as well as the exposition of the Respondent’s case by Mr Yu, the Government takes the position that it is no part of the functions of a District Council to advise the Government on territory wide issues under s 61 of the District Council Ordinance, although the Government may choose to consult a District Council on such matters under BL 97 and 98.  In relation to the facts of the present case, the Government says that the Agenda Item in question concerned territory wide issues with no particular district angle, and therefore falls outside the ambit of the functions of the Southern District Council and was ultra vires.  Whether the functions of a District Council are limited or confined as contended by the Respondent is an issue of law and depends on the true interpretation of s 61 of the District Council Ordinance.  I do not see that the precise terms or provisions of the Government’s policy or practice on how it handles District Council affairs is relevant to that question.  Neither would such policy or practice be relevant to the question of whether the Agenda Item in question concerned territory wide issues with no particular district angle.  In other words, production of the relevant policy in accordance with which the decision was made in the present case would not, in my view, be relevant to the determination of the scope or boundaries of the duty of a secretary to a District Council, which is the central issue to be determined in this application for Judicial Review.

7.Furthermore, GC 4/2020, promulgated in August 2020, came after the relevant decision of the Respondent, which was made in June 2020.  Logically, that document could not have been relied upon by the Respondent in making the decision.

8.In all, I am not satisfied that a sufficient case has been made out for the disclosure of GC 4/2020.  The same reasoning applies to the documents sought under the proposed amended paragraph 2 of the summons, namely, “the document(s) containing or evidencing the policy and directions provided to the Respondent and the District Officer (South) between January and 23 June 2020 as to the ‘arrangement/practice’ for handling matters raised for discussion in the District Councils.”

9.Mr Kat has confirmed that the Applicant will not pursue paragraph 3 of the summons filed on 9 June 2021.

10.Lastly, in respect of paragraph 4 of the summons, I consider that the few paragraphs in the Affirmation of Howard Yam dated 26 May 2021 objected to by the Applicant merely set out the position of the Home Affairs Bureau in respect of the Government’s power or practice regarding consultation with District Councils on matters relating to district administration and territory-wide issues, as well as the powers, functions and duties of a District Council under s 61.  They form the background of the Respondent’s answer to the present challenge, and is not objectionable.  In any event, it has not been suggested, or shown, that the Applicant is prejudiced or embarrassed by those paragraphs.  It cannot be right that the court should be asked to strike out a few paragraphs or parts of an affidavit whenever it is possible to say that they are not strictly matters of fact, but contain matters of opinion or submissions.  The position is of course different if an affirmation contains lengthy submissions on law or opinion, which is not the present case.  The court must look at such application from a practical point of view and ask whether any useful purpose will be achieved by the proposed striking out.  I do not consider that any useful purpose will be so achieved.

11.In all, I dismiss the two summonses of the Applicant, save and except that I would grant leave to the Applicant to amend the Form 86 as indicated above.

12.I shall reserve the question of costs to be dealt with at the substantive hearing of the application for judicial review.

Mr Nigel Kat, SC and Mr Azan Marwah and Mr Josh Baker, instructed by Ho, Tse, Wai & Partners, for the Applicant

Mr Benjamin Yu, SC, instructed by Department of Justice, and Ms Jess Chan, Senior Government Counsel, for the Respondent