China Concrete Company Ltd v. Secretary for Justice
Read the full judgment text of HCA 997/2022 on BabelCite. This High Court CFI judgment was delivered on 13 December 2023.
1. This is one amongst several pieces of litigation involving the Applicant (“CCC”) and its disputes with the Environment Protection Department (“EPD”).
Cited by 3 cases · Cites 10 cases
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HCA 997/2022 [2023] HKCFI 2282 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 997 OF 2022 ________________________ BETWEEN
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_____________ D E C I S I O N _____________ A. Introduction 1.This is one amongst several pieces of litigation involving the Applicant (“CCC”) and its disputes with the Environment Protection Department (“EPD”). 2.CCC has operated a concrete batching plants at 22 Tung Yuen Street, Yau Tong, Kowloon (“CBP”) since 2000. The operation was carried out under a ‘Specified Process Licence’ (“SPL”) as granted by EPD since the inception of the business and as renewed from time to time, but which was not further renewed beyond 31 December 2019. By lodging a statutory appeal under the Air Pollution Control Ordinance Cap 311 (“APCO”), the non-renewal of the SPL only took effect on 27 January 2022, on the date CCC’s appeal was rejected by the Appeal Board. 3.Central to the present dispute is CCC’s contention that it has modified the operation at 22 CBP since 10 February 2022, such that a SPL would no longer be required, which contention is disputed by EPD. 4.The APCO criminalises the carrying out of a ‘specified process’ in any premises without a SPL: see section 13. ‘Specified process’ is defined as a process specified in Schedule 1: see section 2. Of relevance amongst those processes listed in Schedule 1 is ‘Cement Works’, which is defined as “works in which the total silo capacity exceeds 50 tonnes and in which cement is handled or in which argillaceous and calcareous materials are used in the production of cement clinker, and works in which cement clinker is ground”: see §3 of Schedule 1. 5.CCC contends that it has modified the operation of 22 CBP by reducing the total silo capacity to below 50 tonnes, such that the process now carried out by the plant is no longer ‘Cement Works’ and thus no SPL is required. The EPD does not dispute that work of the sort of which the total silo capacity is less than 50 tonnes does not require a SPL. But it disputes CCC’s interpretation of ‘total silo capacity’ and insists that the work carried on at 22 CBP after 10 February 2022 still has a total silo capacity exceeding 50 tonnes on proper construction of the term. 6.In the generally endorsed Writ originally filed on 8 August 2022, CCC summarized its claim against EPD at §3 of the general endorsement:
7.But damages are not the only remedy CCC is seeking. §§1 and 2 of the endorsement set out in some detail a series of declarations the intended effects of which are that (a) the EPD’s interpretation of total silo capacity is wrong, (b) CCC’s interpretation is right, and thus (c) no SPL is required for the operation of 22 CBP since 10 February 2022. CCC later made some cosmetic changes to the Writ in the same month and filed a Statement of Claim (“SOC”) on 5 October 2022. 8.By a Summons filed on 28 October 2022, the EPD applied to strike out CCC’s SOC on the basis that: it discloses no reasonable cause of action; it is scandalous, frivolous or vexatious; and/or it is an abuse of the process of the Court. After the striking-out Summons had been fixed to be heard before me on 6 June 2023, CCC also filed a Summons on 31 May 2023 for the amendment of the Writ and the SOC. There is also a Summons filed by the EPD on 24 May 2023 for leave to file and serve a further affirmation. 9.The three Summonses all came to be heard before me on 6 June 2023. But at the beginning of the hearing, I was informed by parties that they would be happy for CCC’s draft amended SOC (“ASOC”) and the EPD’s further affirmation to be considered on a de bene esse basis in the context of the striking out application. Obviously, if the ASOC (considered on de bene esse basis) is struck out, the other two summonses will fall away. 10.At the hearing, CCC was represented by Mr Rimsky Yuen SC, leading Mr Anthony Chan SC and Mr Enzo Chow and Ms Jennifer Fan of Counsel. The EPD was represented by Mr Johnny Ma SC leading Mr Gary CC Lam of Counsel. At the conclusion of the hearing, I reserved my decision to be handed down later. 11.This is my Decision. B. Further Factual Background B.1 The starting point 12.CCC’s application to renew its SPL for 22 CBP beyond December 2019 was rejected by the EPD by letter dated 29 April 2021. CCC’s appeal to the Appeal Board (“Board”) under the APCO against the EPD’s refusal to renew was rejected by the Board on 27 January 2022. By operation of section 31(3), the effect of the SPL granted to 22 CBP formally lapsed thereafter. 13.By letter dated 28 January 2022, the EPD demanded CCC to cease all cement works at 22 CBP with immediate effect. 14.By letter dated 10 February 2022, CCC, via its solicitors, submitted a certificate (with a report 40-odd pages long) issued by a Mr Vincent Cheung, an Authorised Person, to the effect that the operation of 22 CBP had been modified such that its total silo capacity became less than 50 tonnes. In gist, amongst the 8 cementitious silos on site, 6 of them have been isolated from the plant’s concrete batching equipment system and the capacity of the remaining two have been restricted by the installation of a warning system. 15.By letter dated 15 February 2022, the DOJ, acting for the EPD, disputed CCC’s position that the total silo capacity of 22 CBP had become less than 50 tonnes or that it would no longer require a SPL. §11 of the letter reads (sic, original emphasis):
16.In the same letter, it is also stated that the staff of the EPD observed that works requiring a SPL were still on-going on 29 January 2022, which constituted an offence under section 13 of the APCO. The EPD required CCC to cease all works prohibited under the APCO, failing which the PD would initiate prosecution. The EPD also drew CCC’s attention to section 28, which permits the EPD to enter premises without warrant to inspect any polluting process. 17.By letter dated 18 February 2022, CCC (via its solicitors) requested for evidence showing works carried out on 22 CBP which would require a SPL and said that the DOJ’s interpretation as stated in §11 of its 15 February 2022 letter has unilaterally extended the definition of the terms ‘silo’, ‘silo capacity’ and ‘total silo capacity’ under the APCO, the meaning of which are plain and simple. 18.By letter dated 28 February 2022, the EPD itself also issued a letter to CCC’s solicitors, repeating the DOJ’s interpretation of total silo capacity, and reminded CCC to cease all works contravening the APCO. It was also stated that the EPD had inspected 22 CBP on 29 January 2022, 7 February 2022, 14 February 2022 and 15 February 2022 and observed that the plant continued to conduct polluting process while excessive dust emission and the deposition of dusty materials were noticed. A statutory notice (“Air Pollution Abatement Notice”) to abate air pollution under section 10 of the APCO had thus been issued against CCC on 17 February 2022. Failure to comply with such notice is an offence under section 10(7). 19.By letter dated 4 March 2022 issued to the EPD, CCC’s solicitors continued to dispute the DOJ/EPD’s interpretation of total silo capacity and requested (further) evidence of the EPD’s allegations that 22 CBP had produced air pollution in its operation. 20.As reflected in the correspondence, the EPD’s objections to the operation at 22 CBP after 27 January 2022 (or 10 February 2022) are two-fold: (1) the process carried out in the plant continues to require a SPL, and when such licence is absent that is in contravention of section 13 (“the SPL Issue”); and (2) the process has continued to produce air pollution in contravention of section 10 (“the Air Pollution Issue”). 21.On the SPL Issue, CCC said (a) the DOJ/EPD’s interpretation of ‘total silo capacity’ is wrong and (b) the DOJ/EPD produced no or insufficient evidence to show that 22 CBP has a total silo capacity over 50 tonnes as a matter of fact. On the Air Pollution Issue, CCC disputed or was not satisfied that the EPD had produced sufficient/valid evidence to show that 22 CBP had produced air pollution in a manner prohibited by the APCO. 22.Since towards the end of March 2022, these disputes have escalated from correspondence to litigation in both the civil and criminal spheres, including the present action. 23.But before turning to the present case, it is convenient to set out other sets of litigation first, since what transpired there is now relied upon by CCC in its SOC/ASOC in the present action. B.2 HCA 403/2022 – the EPD’s claim against CCC for public nuisance 24.On 13 April 2022, the EPD (suing in the SJ’s name and represented by the DOJ) commenced HCA 403/2022 claiming against CCC for public nuisance in relation to its operation of 22 CBP, and obtained on the same day an ex parte injunction restraining CCC from carrying on with pollution process in 22 CBP until the return date on 22 April 2022. 25.On the return date, the DOJ’s application for interlocutory injunction was resolved by its withdrawing the Summons upon CCC’s undertaking not to allow the emission of air pollutant from the operation of 22 CBP. The public nuisance claim underlying the injunction application was left to be determined on a date to be fixed. 26.CCC said what transpired in the exchange between the DOJ and DHCJ Leung at the return date hearing has evidenced an ‘acceptance’ or an ‘undertaking’ by the EPD/DOJ that it would be lawful for 22 CBP to operate without a SPL provided that no public nuisance was caused. As will be seen below, this is a key plank to CCC’s various tortious claims. B.3 Criminal Prosecution 27.Since April 2022, by the information laid by the EPD, a total of 20 Summonses were issued in the Kwun Tong Magistrates’ Courts against CCC. In 9 of the Summonses, CCC was accused of failing to comply with the Air Pollution Abatement Notice in contravention of section 10. The other 11 Summonses accused CCC of operating 22 CBP without a SPL in contravention of section 13. The proceedings for these Summonses are on-going. I was informed that CCC is represented by Mr Tony Li SC in these criminal matters. 28.The Kwun Tong Magistrates’ Courts had brought up all the 20 Summonses for mention on 4 May 2023, on which date it was further directed that all Summonses were to be adjourned to 28 July 2023 for argument of whether the criminal trial should be heard before the ‘civil case’ is concluded. At the hearing, it seems that parties assumed that the reference to ‘civil case’ refers to the present case, albeit now upon reflection it seems that it may also refer to or include the public nuisance action in HCA 403/2022. B.4 Judicial review leave application in HCAL 241/2022 29.After the Board had, on 27 January 2022, refused CCC’s statutory appeal against the non-renewal of its SPL, CCC applied for leave to challenge both the EPD’s refusal and the Appeal Board’s decision by way of judicial review in HCAL 241/2022. The leave application was heard by me on 22 August 2022 and I dismissed it in my Judgment dated 20 January 2023, [2023] HKCFI 211. 30.The relevance of HCAL 241/2022 – at least from the EPD’s perspective – is that, there, CCC also relied on conduct which is relied upon by CCC in the present action in support of one of its arguments that the EPD was motivated by an improper or ulterior purpose. Mr Ma sought to derive assistance from my reasoning in rejecting that argument in HCAL 241/2022, in support of EPD’s current striking out application. B.5 The present action in tort: HCA 997/2022 31.Turning to the present action, the original Writ was filed in August 2022 (and slightly amended in the same month) and the SOC was filed in October 2022. The current amendment Summons, seeking leave to amend both the Writ and the SOC by reference to the draft ASOC and draft further-amended Writ annexed, was filed on 31 May 2023. As said, I will deal with the draft amended pleadings on a de bene esse basis. 32.The SOC contained two causes of action in tort, being: (a) wrongful interference with contracts (which CCC has agreed to be referring to the tort now known as ‘procuring breach of contracts’); and (b) causing loss by unlawful means, both of which are said to have arisen from the wrongful allegations/messages made by the EPD concerning CCC. 33.The amendments seek (1) to add further particulars to the two original causes of action and (2) to add two more causes of action, being: (c) malicious falsehood and (d) targeted malice (which Mr Yuen referred to as ‘misfeasance in public office’). 34.The ASOC contains four broad categories of wrongful conduct which CCC alleges to have been committed by the EPD:
35.The first broad category of conduct – wrongful dissemination of messages – was already in the SOC but the other three categories were only added to the ASOC. CCC pleaded that such messages have become widely circulated in the industry and have caused various companies who had contracted with it for supply of concrete to suspend or terminate or breach the relevant contracts, as well as causing other parties who were in the process of negotiating supply contracts with CCC to break off the negotiation. C. Alleged Wrongful Conduct 36.The conduct which CCC alleges to have given rise to the tortious claim spanned from April 2022 to May 2023. The stage has not yet come for the EPD to plead its case against that conduct in which CCC says the EPD had engaged. But, as I understand it, broadly speaking, the EPD does not seriously dispute that the impugned conduct did occur, but Mr Ma, as might be expected in advancing a striking out application, argued that what is pleaded (assuming the alleged conduct to be true) would not be sufficient to support the causes of action on which CCC seeks to rely. To put it in another way, assuming that conduct occurred in the circumstances as pleaded in the ASCO, it is not ‘wrongful’ in the sense of amounting to a tort. 37.I will refer to the conduct by the shorthand of ‘wrongful dissemination of messages’, ‘illegal immigrant operation’, ‘raids’ and the ‘unloading attempts’. Amongst them, it is clear that the first category is the main wrongful conduct relied upon by CCC. 38.CCC says the dissemination started in April 2022 and has continued to May 2023 (as shown by the last incident pleaded in the ASOC). The content of the messages is pleaded as follows: (a) the EPD has noticed frequent serious dust emission from 22 CBP due to improper plant design and management, malpractices in operation and inadequate maintenance, causing nuisance to the surrounding areas, (b) the situation has not improved despite the EPD’s warning, and (c) 22 CBP cannot operate lawfully because either it has no SPL or it has problems related to the SPL. 39.The pleas referring to air pollution were already in the SOC but the last item concerning the SPL was only added to the ASOC. However, it has become clear that the messages concerning SPL are those mainly relied upon by CCC now. As I understand it from the pleadings, the content of the messages is said to be wrong because (a) it is wrong, untrue, and/or without proper legal basis to allege that 22 CBP cannot operate with a SPL, and (b) the EPD deliberately failed or omitted to disclose the fact that the EPD has already accepted in the 22 April 2022 hearing in HCA 403/2022 that 22 CBP can lawfully operate without a SPL. It was also said the dissemination of such messages (alongside other conduct) is “highly unusual, totally unprecedented and unheard of, and is plainly beyond the proper ambit and purpose of his lawful powers”. 40.CCC has set out various incidents of such ‘wrongful dissemination of messages’ in the ASOC and the relevant documents are also provided to the Court. By way of example, CCC provided to the Court a copy of a letter dated 5 December 2022 sent by the EPD to Leigh & Orange, the Authorized Person of one of the construction sites which were using concrete supplied from 22 CBP, informing the latter that 22 CBP was suspected of operating without a SPL in breach of section 13 of the APCO and invited the latter to attend an interview with the EPD to assist the investigation. 41.CCC also attached various written correspondence in which those directly sourcing concrete from CCC made direct enquiry with CCC about 22 CBP’s licensing situation or questioned the legitimacy of its operation. There was also correspondence to similar effect not addressing CCC directly, but between those sourcing concrete from CCC or 22 CBP and their counterparties further up the chain in the construction industry. 42.As to the ‘illegal immigrant operation’, what is pleaded in the ASOC is that upon the complaints lodged by the EPD, a team of immigration officers together with a considerable number of police officers (including the Police Tactical Unit) attended 22 CBP (and another CBP operated by CCC on the same street) on 15 March 2023, looking for suspected illegal immigrants working in the plants. No such immigrants were found. CCC pleaded that the complaint made by the EPD was “totally groundless and clearly malicious as there was no reason or ground for the EPD to suspect that there were illegal immigrants or illegal workers working in the plants”. 43.The ‘raids’ refers to the inspections carried out by the EPD on 22 CBP (and another CBP operated also by CCC on the same street “20 CBP”) on 20 September 2022, 29 September 2022, 8 November 2022, 15 December 2022 and 22 February 2023. CCC’s pleaded case is that those raids were done on the ‘pretext’ that “they suspected 22 CBP was operating with SPL when they knew or ought to have known there was absolutely no basis for the so-called “suspicion” … because EPD officers knew or ought to have known that the Director accepts, or does not dispute that 22 CBP may continue to operate lawfully without a SPL and that the Court has accepted the Undertaking”. 44.The last category of conduct, i.e. the ‘unloading attempts’, is that on multiple occasions the EPD officials followed mixer trucks from 22 CBP to construction sites and then attempted to stop the mixer trucks from unloading concrete on site. These occasions were said to have occurred on 22 July 2022, 28 July 2022, 5 August 2022 and 19 August 2022. 45.With respect, it is not effortless to decipher from the pleadings which category of ‘wrong conduct’ is said to have formed the basis of which cause of action. But, with the assistance from the written submissions for the amendment Summons settled by Counsel, it appears that:
46.But whilst the illegal immigrant operation, the raids, and the unloading attempts were not relied upon as the “conducts” forming the tortious acts of the causes of action except targeted malice, I was under the impression that Mr Yuen did intend to derive assistance from the entirety of the events to explain why CCC would say that conduct was ‘wrongful’ in general, or to provide the necessary factual background to infer that the requisite intent or mental state elements for the various causes of action did exist. 47.Mr Yuen invited this Court to take a realistic view in assessing the effects of the EPD’s conduct on other players in the construction industry. The EPD is the powerful regulatory authority in the industry. He referred to the 5 December 2022 letter issued by EPD to Leigh & Orange, drafted on its face as an invitation to enlist Leigh & Orange’s assistance for investigation of breach of the APCO, but in truth to convey the accusation against CCC. Mr Yuen said those receiving the messages circulated would only react by withdrawing from doing businesses with CCC. He further said that such reaction must have been contemplated by the EPD. He said the effects of the unloading attempts were the same. 48.But the objective effect or harm on CCC’s business (assuming they were true) on its own is not sufficient to explain why the EPD’s conduct was wrongful, or unlawful in the sense of amounting to actionable torts. 49.Mr Ma said all instances of the alleged wrongful conduct were but legitimate efforts on the part of the EPD to take law enforcement actions against what the EPD genuinely saw and believed to be unlawful conduct in contravention of the APCO, including unlicensed operation and process generating air pollution. The so-called raids all resulted in prosecution under the APCO. The unloading attempts were attempted enforcement against unlicensed operation. There is no plea that the EPD did not have genuine belief that there were illegal immigrants working in the CPBs. The messages disseminated were but the position taken by the EPD as the enforcing authority of the APCO. 50.Mr Ma said central to CCC’s complaints about the so-called wrongful conduct is simply its disagreement with the EPD’s interpretation of the APCO. But the EPD is entitled to rely on the DOJ’s interpretation of ‘total silo capacity’ and to view the continuous operation of 22 CBP without a SPL as illegal. The EPD has already initiated criminal prosecution against CCC for contravention of section 13 (and section 10) of the APCO. It is not the position of CCC that those criminal proceedings are vexatious or frivolously instituted. 51.Mr Ma said the EPD, as the enforcing authority of the APCO, is entitled to take further enforcement actions to contain the damage brought by 22 CBP’s continuous breach of the law, before the criminal proceedings are fully ventilated. It could not be right that the EPD could not take any enforcement actions once those subject to the APCO take a different view on the law from the enforcing authority, until and unless there is an authoritative declaration from the Court affirming the enforcing authority’s view. 52.Mr Yuen sought to dissuade me from seeing the EPD’s conduct as legitimate law enforcement actions, and said they should be regarded as actionable torts. As said, CCC’s key complaint is the ‘wrongful dissemination of messages’. To make those messages ‘wrongful’, I think Mr Yuen suggested (or at least insinuated) that the EPD did not have honest or genuine belief in its or the DOJ’s interpretation of ‘total silo capacity’. This is obviously a very serious allegation, in light of the criminal prosecution already instituted. But Mr Yuen did not expressly say so in submissions, let alone pleading so in the ASOC. The ASOC (at §28) does contain a plea that the EPD and its staff’s conduct was ‘beyond the proper ambit and purpose of his lawful powers’. That plea is consistent with the undertone in Mr Yuen’s submissions that what EPD did was not for real law enforcement purpose but some other purposes, but the exact purposes were never expressly spelt out either in Mr Yuen’s submissions or in the pleadings. 53.Mr Yuen’s insinuation that the EPD had no genuine or honest belief in its interpretation or had some improper purposes behind those conduct appears to have been based on the following. 54.First, Mr Yuen, said on its face, CCC’s interpretation about ‘total silo capacity’ is a reasonable one. Facing CCC’s argument that its interpretation is consistent with not only the industry’s understanding or even the EPD’s own practice in the past, the EPD has never tried to engage in a rational discussion with CCC to explain the former’s rationale in its now alleged interpretation. Nor were there any efforts to take measurements about those silos as a matter of fact. However, whilst one may criticise such response from a government authority as high handed or for want of what may call ‘government governance’, I do not think a refusal to discuss can be elevated into a lack of genuine belief of what the government authority has put in black-and-white letters or reflected in a criminal prosecution. 55.Second, key to Mr Yuen’s argument is the so-called ‘stance’ which Mr Yuen said the DOJ had taken in the return date hearing on 22 April 2022 in the public nuisance action in HCA 403/2022. The hearing transcript was provided to the Court, and the relevant excerpt between Mr Liu (of the DOJ, representing the EPD) and the Court was as follows:
56.Mr Yuen’s reading of the above exchange is that the DOJ/EPD had taken the stance (or conceded to Court, or accepted) that it would be lawful for 22 CBP to continue to operate without a SPL as long as the operation does not produce what might amount to public nuisance. Therefore, the subsequent assertions made by the EPD to the effect that 22 CBP could not lawfully operate without a SPL was somehow ‘wrongful’ in light of what had transpired at the 22 April 2022 hearing. 57.Mr Ma said that the correct interpretation of the APCO is a matter of law. It is not a matter of exercise of discretion by the EPD. Nor is the EPD in a position to make a concession in relation to the correct statutory construction of the relevant provisions. That is obviously correct. 58.But I think Mr Yuen did not suggest that the stance he said the DOJ/EPD had taken on 22 April 2022 had any real bearing on the correct interpretation on ‘total silo capacity’. Mr Yuen’s intended use of the so-called stance is a little more opaque. But he was either suggesting that the ‘stance’ then taken by EPD/DOJ in the return date hearing suggests that the EPD had no genuine belief in its current interpretation of the APCO or that it was somehow wrongful for the EPD not to act according to that ‘stance’. 59.But whatever use Mr Yuen intended to make of the so-called ‘stance’ must be premised on such a stance having actually been taken. I have already indicated in the oral hearing that I do not read the court transcripts the way Mr Yuen had invited me to do. There was simply no reference to the requirement of SPL in the excerpts at all. The ‘certain manner’ or ‘allowable extent’ DHCJ Leung was referring to, as he had expressly made himself clear in the exchange, was ‘nuisance’, the very cause of action relied upon by the EPD in the public nuisance action. 60.Mr Yuen agreed that there was no reference to SPL. But he said that is a classic example of what was not said being even more important than what was said. He pointed out that the correspondence between EPD and the CCC disputing the need for 22 CBP to operate with a SPL pre-dated the 22 April 2022 hearing. There were clearly two grounds which the EPD could have relied upon to stop the 22 CBP from continuing to operate, namely the absence of a SPL and public nuisance. One may even argue that the lack of a SPL would be a simpler ground to achieving the same end. Yet, the DOJ/EPD chose to rely on public nuisance solely. 61.I remain unpersuaded that the DOJ/EPD had taken any stance at all about whether 22 CBP could operate with or without a SPL. What was not said was simply not said. In any event, it is simply a statement of the obvious that CCC can operate the 22 CBP to a certain extent even without a SPL. But, there can be no doubt that the EPD was saying throughout that it did not agree with CCC that the extent operated by it could lawfully be carried on without a SPL. As Mr Yuen himself said, that was already clear from the correspondence. It was up to EPD, with advice from its lawyers, as to what bases or grounds they would rely upon in HCA 403/2022, the injunction application or the undertaking that CCC should give in exchange for the withdrawal of the injunction Summons. There could be all sorts of reasons why a party might choose not to deploy all the legal arguments they could think of in a particular piece of litigation. Knowing that CCC already disputed the proper interpretation of section 13 might, contrary to what Mr Yuen suggested, be a factor pointing against the inclusion of the lack of a SPL as a ground in the HCA 403/2022. 62.The third argument or observation relied upon by Mr Yuen was also pleaded at §28 of the ASOC – that the conduct of EPD and its staff was ‘highly unusual, totally unprecedented and unheard of’. Mr Yuen posed as a rhetorical question whether the EPD’s conduct was what would normally be expected from enforcement authorities. He asked why EPD would not simply let the criminal proceedings run their course to settle the disputes as to whether 22 CBP would need a SPL to operate, but had chosen to adopt all the ‘unusual’ practices. There is perhaps some truth in the allegation that the course of action adopted by EPD against CCC was unusual. Mr Liu also recognized at the return date hearing the unusualness for a government department to apply for an injunction against a business entity like CCC. But the unusualness or unexpectedness of such course of action, without more, cannot be elevated into an actionable tort. Nor can I see how it could be inferred, from the unusualness of the course of action adopted, that the EPD’s conduct was not done for law enforcement purposes, or that it was motivated by some improper purpose, or that the EPD had no genuine belief in DOJ’s interpretation of the law. 63.More specifically to the conduct of ‘wrongful dissemination of messages’, having found that the DOJ/EPD did not take the ‘stance’ on the 22 April 2022 hearing as alleged by CCC, there is no factual basis for CCC to assert that it was incumbent on the EPD to ‘disclose’ such a ‘stance’. Nor is there any factual basis to insinuate that the EPD had no genuine or honest belief in its interpretation of ‘total silo capacity’ in the APCO. I am not persuaded that the EPD was disentitled to assert or intimate that it was a contravention of the APCO for 22 CBP to operate without a SPL, or that it was incumbent upon the EPD to mention that the so-called ‘stance’ taken by the EPD at the 22 April 2022 hearing. Given the content of those messages were not ‘wrong’, I cannot see why it would be wrong for the EPD to circulate those messages. 64.There was barely any focus in the hearing on the air pollution issue which was also pleaded as part of the content of those messages. The air pollution issue is consistent with the issuance of the Air Pollution Abatement Notice and the prosecution under section 10. In the circumstance, it is hard to see what was wrong with the messages concerning air pollution. I also fail to see why it would be tortious for the EPD to disseminate such messages. 65.For the sake of completeness, I would also briefly cover §80 of my Judgment refusing to grant leave to CCC to apply for judicial review in HCAL 241/2022. Mr Ma sought to rely on that paragraph as supporting his argument that whatever had been done by EDP was but law enforcement action, and no improper motives or bad faith could be inferred. In HCAL 241/2022, CCC applied for leave to challenge both the EPD’s refusal to renew the SPL for 22 CBP and the Appeal Board’s decision. One of CCC’s proposed grounds – Ground 5 – was the EPD’s refusal was motivated by improper/ulterior purpose in the sense that the decision was materially influenced by political pressure brought by politicians or developers with residential estate projects in the area. 66.It cannot be disputed that the facts relied upon by CCC in the pleadings of the two actions are substantially the same: how CCC indicated that it had modified its total silo capacity to below 50 tonnes after the SPL effectively lapsed, but EPD/DOJ disputed the statutory interpretation; how DOJ/EPD all of a sudden applied for an injunction against CCC on ex parte without notice basis in April 2022; how DOJ/EPD took a ‘stance’ on the return date hearing that CCC may to certain extent and in a certain manner continue to operate the CBP without a SPL; and how the EPD started to circulate to various public authorities and government departments those (wrongful) messages, etc. 67.I refused to grant leave and dismissed all the proposed grounds (including Ground 5) as not reasonably arguable. Mr Ma relied on some of my reasoning in dismissing Ground 5, as stated in §80 of the Judgement (Mr Ma’s emphasis):
68.The parties spilt considerable ink to argue whether the point now raised by CCC in the present action has or has not already been decided in me in refusing Ground 5 of the application in HCAL 241/2022. I do not think much profit could be derived from that discussion. As the Court seized now with the argument advanced in the present action, I can make my finding based on what is now available to me, without referring to or being constrained by my earlier decision in HCAL 241/2022. D. EPD’s Arguments for Striking Out 69.Mr Ma relied on three grounds to strike out CCC’s ASOC, set out in descending order of their importance as reflected in Mr Ma’s oral submissions:
70.The law on striking out is well-settled. Striking out is a draconian remedy. Pleadings should be struck only in clear and obvious cases. The power to strike out should only be exercised in plain and obvious cases, where the claim is obviously unsustainable. A claim must be so obviously unsustainable, the pleadings unarguably bad, and it must be impossible, not just improbable, for the claim to succeed before the Court would strike it out. E. Whether the pleadings disclose any reasonable cause of action E.1 The Approach 71.Insofar as the application is premised upon the proposition that there is no reasonable cause of action, a reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleadings are considered. So long as the pleadings disclose some cause of action, or raise some questions fit to be decided by a court, the mere fact that the case may be weak, and not likely to succeed, is no ground for striking out. 72.Further, the Court should ‘generally’ proceed on the basis that the facts alleged in the statement of claim will be established. No evidence is admissible, and the Court must address the matter simply on the basis of what is pleaded. I have qualified the position by the word ‘generally’ because it is also well-established that the Court is not obliged totally to suspend its critical faculty and to accept what the plaintiff pleads as a fact something which can clearly be shown to be false. The Court is not bound to accept an allegation as true and to proceed on a fictional basis when the plea clearly has no factual basis: see for example, Lam Kit Sing v Chungshan Commercial Association, Hong Kong (unreported, HCA 2011/2014, 29 June 2016). 73.Adopting this tempered approach, I will reject the plea in the ASOC that the EPD/DOJ had accepted at the 22 April 2022 hearing that it would be lawful for 22 CBP to continue to operate without a SPL. 74.I shall deal with each of the four causes of action in turn. E.2 Procuring breach of contract 75.The tort which was once known as ‘wrongful interference with contract’ has settled into what is now called ‘procuring breach of contract’ with the following requisite elements: (1) there is a contract between A and a third party, (2) B has knowledge of that contract, (3) B does an act which induces or persuades the third party to breach the contract (4) with the intent to cause the third party to breach contract, either as an end in itself or a means to an end, (5) which leads to an actual breach of the contract (6) resulting in A suffering from pecuniary loss. 76.These principles represent the current state of law in Hong Kong, and have recently been recognised and applied by our Court of Appeal in Xiamen Xinjingdi Group v Eton Properties Ltd [2016] 2 HKLRD 1106, at 204.3. 77.Mr Yuen did not dispute that what is stated above represent the law. But specific to the requisite elements of the pre-existence of a contract and the actual breach of that contract, Mr Yuen suggested in his written submissions that wrongful interference with pre-contractual negotiations is also actionable, citing a footnote in a textbook ‘The Law of Tort in Hong Kong’ 3rd Ed by DK Srivastava & AD Tennekone. But, as pointed out by Mr Ma, the footnote cites as authority for that proposition the case of Quinn v Leathem [1901] AC 495, [1900-3] All ER Rep 1, which is over a century old and contains law which has become outdated long ago. I agree with Mr Ma that CCC must plead an actual breach of contract to establish this tort. 78.It is not difficult to see why Mr Yuen might have been compelled to draw support from authority referring to pre-contractual negotiation. Whilst Mr Ma also criticized the ASOC for lacking pleas for the other requisite elements, central to his complaints is that CCC has barely identified any existing contracts, let alone the breach of them. 79.In the ASOC (which was filed on 31 May 2023, plainly as a response to the striking out application), CCC sets out at §26B in the form of a table 15 ‘contracts’ which were said to be affected by the ‘wrongful dissemination of messages’. But it must be admitted that most of the ‘contracts’ identified in the table were not existing contracts which had already been entered into with CCC but were ‘potential contracts’ which CCC was at the stage of negotiating with other companies. The often-mentioned effect said to be brought by the wrongful dissemination of messages, as pleaded in multiple places in the ASOC, is the termination of negotiation for those potential contracts. The loss or damage is particularized in a table headed ‘loss of potential contracts’ at §27D. Mr Ma drew my attention to the qualification of those contracts as being only ‘potential’. 80.Mr Yuen did identify, amongst the 15 contracts set out in §26B, two contracts in his written submissions and one more in his oral submissions which he said were pre-existing contracts, which had been breached as a result of the messages disseminated by the EPD. I set out these three contracts for easy reference (sic) (my emphasis):
81.It is plain that there is no plea of “breach of contract”. The contract with Tyson (item 1) refers to suspension of concrete supply. The contract with Kin Chiu (item 6) refers to termination of contract. Suspension or termination of contract does not necessarily amount to a breach of contract. There is also no plea anywhere else in the ASOC that the suspension or termination was wrongful. Nor am I able to deduce such meaning by reading §26B with any other paragraphs of the ASOC, as Mr Yuen invited me to do at the hearing. 82.As to the contract with Able Engineering (item 2), Mr Yuen invited me at the oral hearing to consider as the usual practice of the industry that each contract would specify a particular plant for supplying concrete. I think what he suggested was that, thus, the request for the concrete to be supplied from the Sha Ling Plant rather than from 20 CBP and 22 CBP could amount to a breach of contract. But Mr Yuen also admitted that there is no such plea of facts in the ASOC, let alone any such evidence filed. I am not prepared to entertain such submissions from the bar table as sufficient pleas for breach of contract. I would also note that Able Engineering was apparently not of the view that its request to switch to another plant was a breach of contract. Rather, it seemed to think it would be entitled to claim as the innocent party against CCC for any insufficient output in concrete delivery. 83.The ASOC was settled by two Senior Counsel and two junior Counsel, and the draft was prepared with the knowledge that one of the main grounds relied upon by the EPD for striking out is disclosing no reasonable cause of action. It would be surprising that, had there been sufficient instructions from the client capable of supporting a plea of breach of contract, the team of Counsel would fail to plead it. Indeed, my overall impression of the ASOC is that Counsel were careful not to plead breach of contract by reference to any specific identified contract. 84.Even though, in the written submissions also settled by the same team of Counsel, the termination of the contract with Kin Chiu is described as “wrongful termination” and the one with Tyson is said be to “repudiatory breaches”, Mr Ma said pleadings cannot be amended by way of submissions. That must be right. 85.I also agree with Mr Ma that the absence of pleas for breach of contract cannot be salvaged by suggesting that further and better particulars could be supplemented, or be attributed to the need to conduct further investigation to uncover further details. The complaint is not the lack of particulars but that there is no plea of breach at all. No particulars could be sought from an non-existent plea. Also, CCC being one of the contracting party to the contracts which it says have been breached would be in the position to tell if its contracts have been breached by its counter parties. A party should not institute a civil action first and then hope that subsequent investigation will reveal sufficient facts to support the hoped for claim. 86.The lack of a plea for breach of contract is sufficient to strike out the claim for procuring breach of contracts. 87.For completeness, I would also mention that Mr Ma also argued that there are defects in the pleas regarding other necessary elements. He argued that there is no sufficient plea that the EPD knew about the existence of such contracts, and actually realized that it was inducing a breach of contract. He pointed to §39 of OBG Ltd v Allan [2008] 1 AC 1, which stated that it is not enough that a defendant knows that he is procuring an act which, as a matter of law or construction of the contract, is a breach or that he ought reasonably to have known that it is a breach. He also relied on JT Stratford & Sons Ltd v Lindley [1965] AC 269, at 332, in arguing that the defendant must have sufficient knowledge of the terms (even though not with exactitude of all the terms) to know that he was inducing a breach of contract. There is no plea of the requisite knowledge in the ASOC, whether directly or by way of inference. 88.Mr Yuen did not argue that there is a direct plea of the requisite knowledge. But he said there is a sufficient pleading of facts for such knowledge to be inferred. He submitted that it could be inferred that the EPD knew that the supply of concrete by CCC or 22 CBP to its customers was done pursuant to contracts. If necessary and taking a generous reading of the ASOC, I am inclined to conclude that there is sufficient plea from which the requisite knowledge about the existence of such contracts could be inferred. For example, from the plea at the introduction to §26B that EDP staff and officers have wrongfully disseminated messages to “directly and indirectly urge or demand the Plaintiff’s customers not to obtain concrete supply from China Concrete and to stop procuring concrete from the Plaintiff notwithstanding such customers have contracted to acquire concrete from the Plaintiff exclusively for the relevant construction works and the Plaintiff is able and willing to supply concrete lawfully from 20 and 22 CBP”. 89.Mr Ma also argued that there is no sufficient plea of the requite intention to cause the third party to breach the contract with CCC. Mr Ma’s argument concerns some fine distinction as to whether the EPD, as pleaded in the ASOC, intended the breach of contract as a ‘means’, an ‘end’ or barely as a ‘consequence’. There is no need to delve into this argument in view of my analysis above. 90.In conclusion, I agree with Mr Ma the pleas for procuring breach of contract are defective and the relevant pleas could be struck out for disclosing no reasonable cause of action. E.3 Causing loss by unlawful means 91.The essential elements of causing loss by unlawful means are that: (1) A uses unlawful means against a third party (2) which interfere with that third party’s freedom to deal with B, (3) with an intention to cause loss to B and (4) actually causing damages to B: see the OBG v Allan case. 92.Mr Ma’s main complaint concerns the unlawful means element and the requisite intention. 93.On the element of unlawful means, the majority view in OBG (supra) was that such unlawful means used by A against the third party must be actionable by that third party except where the only reason why it is not actionable is because the third party has suffered no loss: OBG (supra), §49 (Lord Hoffmann), §302 (Lady Hale), §§319-320 (Lord Brown). 94.Mr Ma said there is simply no plea in the ASOC that what the EPD had done would give rise to an actionable civil wrong by the third parties against the EPD. That is impliedly conceded by Mr Yuen. But, in so far as the element of unlawful means is concerned, Mr Yuen urged this Court to consider the minority judgment of Lord Nicholls who took a more expansive view of what constitutes ‘unlawful means’ than the majority. 95.Lord Nicholls’ view was set out in §§143-162. He recognised that although the need for ‘unlawful means’ is well established, there is some controversy about the scope of this element. One view is that this concept comprises acts which a person is not permitted to do or has no legal right to do, covering common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence and so on. The other view is that unlawful means in this context is much narrower and comprises mainly civil wrongs. Lord Nicholls favoured the more expansive view. He said the law seeks to provide a remedy for intentional economic harm caused by unacceptable means and it would be passing strange that the breach of contract should be proscribed but not a wrong. Mr Yuen also pointed to the observation of Lord Walker who at §269 recognised that this is a difficult and important area of law and neither the view of the majority nor that of the minority is likely to be the last word on this area. 96.Mr Yuen said the positions in the OBG case regarding the law on causing loss by unlawful means have not yet been tested in higher courts in Hong Kong and this Court should not strike out a claim based on developing areas of law. He cited in support §§16-17 of Shenzhen Futaihong Precision Industry Co Ltd v BYD Co Ltd [2012] 3 HKLRD 736 where the Court of Appeal affirmed the decision below not to strike out pleas of causing loss by unlawful act where the pleader relied on Lord Nicholls’ minority view in the OBG case. There, the pleaders relied on conduct which they said amounted to crimes (albeit not civil wrongs) as constituting the unlawful means element. 97.I do not think the minority view in the OBG case or the Shenzhen Futaihong case can assist CCC. Whilst Lord Nicholls’ expansive view covers more than civil wrongs, the impugned conduct has still to be capable of being a ‘wrong’ in the sense that it is something that the defendant has no legal right to do so against the third parties. The impugned conduct in Shenzhen Futainhong was said to be a crime which would fall within Lord Nicholls’ expansive view. Mr Yuen has never articulated how the dissemination of messages by the EPD could fit into any type of the ‘wrongs’ as identified in Lord Nicholls’ expansive view or otherwise. He did not say the conduct would give rise to a civil claim by those third parties. Nor did he say the conduct was a crime. I have already explained above that there is nothing wrong with either the content of the messages or their circulation (as could be shown by the pleadings). 98.In the circumstances, Mr Yuen has failed to persuade me why the ‘wrongful dissemination of messages’ as pleaded in the ASOC was ‘wrongful’ in the sense that it would be capable of meeting the unlawful means element even in Lord Nicholls’ more expansive view. I agree with Mr Ma there is no plea of the ‘unlawful means’ element. 99.Turning to the intention element. On the element of intention, A must intend to cause loss either as an end in itself or as a means to some further ends. However, it is insufficient that such loss is neither desired and not a means of attaining it but merely a ‘foreseeable consequence’ of one’s action: see OBG at §62, §164-166. 100.As Mr Ma observed, CCC inserts into various places in the ASOC phrases like “with specific intent to injure”. But Mr Ma said there is no plea of facts from which such a specific intent to injure could be inferred. I have already found that the EPD/DOJ did not accept that it would be lawful for 22 CBP to operate without a SPC on the 22 April 2022 hearing. In the absence of any facts to suggest that the EPD had no genuine and honest belief in its interpretation and its position that 22 CBP was operating unlawfully in the absence of an SPL, I cannot find any facts pleaded in the ASOC capable of implying that the EPD disseminated those messages with the intention to cause loss to CCC either as a means or as an end in itself. 101.I am of the view that the pleas for the claim in causing loss by unlawful means are defective and this claim should be struck out as disclosing no reasonable cause of action. E.4 Malicious falsehood 102.The requisite elements for establishing this tort are as follows: (1) the defendant published a statement concerning the claimant’s property or economic interest which was untrue; (2) the publication was made maliciously, and (3) the publication caused special damages to the claimant as a direct and natural result of the publication. 103.On the element of malice, I will take the law from Hong Kong Wing On Travel Services Ltd v Hong Thai Citizens Travel Services Ltd [2001] 2 HKLRD 481, which is also heavily referred to in the excerpt cited to me by Mr Yuen from ‘The Law of Tort in Hong’ Kong 3rd Ed at §§28.12 to 28.26. The essence of the law of malicious falsehood is that there is some dishonest or improper motive. Malice could be proved by two alternative limbs: either (a) the defendant knew when he published the words that they were false or he was reckless as to whether they were true or not; or (b) he made the publication for the purpose not of advancing his own interest but injuring the plaintiff. The latter limb is often put in shorthand as an “improper motive to injure”. To establish this limb, the publication must be done with the direct object of injuring that other person’s business. The mere fact that the publication would injure another person’s business as an incidental consequence is no evidence of malice: see 493. 104.The malice element (being dishonesty or improper motive to injure the claimant) is a high threshold to cross. 105.Mr Ma invited me to revisit the pleading requirement for dishonesty in the the Court of Appeal’s judgement in Peconic Industrial Development Ltd v Yu Ka Hong (CACV 285/2005, 30 May 2006, §33) which cites Three Rivers District Council v Governor and Company of the Bank of England (No 3) [2003] 2 AC 1 at §§184-186 (pp291-292) (emphasis added):
106.I have explained above why there is an insufficient plea of facts to support any assertion that the EDP did not believe, or was reckless as to the truth of what it asserted in, those messages it disseminated. 107.I would also strike out the claim in malicious falsehood for disclosing no reasonable cause of action. E.5 The elements of Misfeasance in Public Office 108.The landmark case is the Three Rivers DC case (supra) at 191 which was endorsed by the Hong Kong Court of Appeal in Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324, at 326-328 and 廣州市鄰港貿易有限公司 v Secretary for Justice [2022] HKCFI 2438, at §§74-78 109.The elements for this tort are: (1) the defendant must be a public officer, (2) conduct by a public officer specifically intended to injure a person or persons, or done intentionally with the purpose of causing loss to the claimant, being a person who is at the time identified or identifiable, or with intent to harm the plaintiff or a class of which the claimant is a member; (3) the conduct was done by that public officer in the exercise of power in that capacity, (4) the officer acted in the knowledge that his act will probably injure the claimant, and (5) the conduct caused material damage to the claimant. 110.The requisite intention or mental state can take either one of the two forms, hence the description sometimes of two forms of this tort: ‘targeted malice’ or ‘untargeted malice’. Targeted malice involves conduct specifically intended to injure a person or person. This type of cases involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. Untargeted malice is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the claimant. It involves bad faith inasmuch as the public officer does not have an honest belief that his act is lawful. 111.Whilst the ASOC refers to the tort as “targeted malice”, the pleadings also refer to both alternative ways of establishing the requisite mental element, and Mr Yuen referred to “misfeasance in public office” in his submissions. I shall treat it as a plea for the tort of misfeasance in public office in the context of this striking out application. 112.Mr Ma’s major complaint about this cause of action is that there is insufficient pleading of facts from which the requisite intention could be inferred. He said the general references to ‘specific intent to injure’ or ‘improper or ulterior motive’ cannot make good the pleadings, unless such intention is supported by factual particulars from which the requisite mental state could be inferred. 113.The pleading requirements set out at §§184-186 of the Three Rivers case (see above) are of course applicable to misfeasance in public office. That is the very cause of action Lord Millett was directing his comments at in Three Rivers. For the same reasons as I have already set out above, I do not think there are factual particulars in the ASOC to support the inference that any of the impugned conduct relied upon by CCC was done with the requite ‘specific intent to injure’, ‘bad faith’ or ‘improper or ulterior motive’. Mr Yuen said, in relation to the illegal immigrant operation, CCC does plead that there were no reasons or grounds for the EPD to suspect that there were illegal immigrants working in the CBPs. But, in view of the excerpt from the Peconic case cited above, this is insufficient. 114.Since I have come to the view that all of the four causes of actions in the ASOC are defective in pleadings, I agree with Mr Ma that the ASOC discloses no reasonable cause of action. This reason alone is sufficient to strike out the pleading in its entirety. Naturally there is no need to consider if leave should be granted to amend the SOC as per the amendment Summons or to permit the filing of further evidence. F. Declaration of Non-criminality 115.The plea targeted by this argument is the declaratory relief sought. 116.The original SOC sought seven forms/items of substantive relief, the first six of which are declaratory relief and the last is damages flowing from the alleged torts. The first two items are a declaration as to what CCC said is the proper interpretation of the meaning of ‘total silo capacity’ in §3 in Schedule 1 to the ACPO. The third and fourth items are declarations to the effect that the EPD/DOJ’s interpretation is wrong in law. The fifth item is that the EPD should adhere to the interpretation as declared by the Court. The first five items are reproduced below:
117.The sixth item is a declaration to the effect that applying the proper interpretation to the facts, the operation of 22 CBP since 10 February does not require a SPL:
118.The amendment also sought to add a further form of declaratory relief (as Item 6A) which would, in effect, operate as an injunction pending the resolution of this action prohibiting the EPD from doing what CCC describes as ‘wrongful dissemination of messages’ – i.e. asserting that 22 CBP cannot lawfully operate without a SPL:
119.The overlap between the declaratory relief and what has to be resolved in the criminal prosecution is self-evident. Items 1 to 4 concern the proper construction of section 13, which certainly will have to be determined in the criminal proceedings based on contravention of section 13. Item 6 is but a declaration that as a matter of law and fact, 22 CBP could continue to operate lawfully without a SPL. Item 6A seeks to restrain the EPD, pending trial of this civil action, from taking the stance it is now taking in the criminal prosecution. 120.Whilst Mr Yuen, at the oral hearing, said that he would dispute that the declaratory relief sought by CCC amounts to a declaratory of non-criminality, with respect, I cannot see how such a contention could be maintained insofar as item 6 is concerned. 121.At the hearing, Mr Yuen attempted to advance his arguments by separating Items 1 to 4 into one category and Items 5 to 6 into another category, but he did not eventually explain why the second category is not a declaratory of non-criminality. I shall deal with Item 6 and then come back to other items of declaratory relief. 122.Mr Ma said Item 6 (which I agree is tantamount to a declaration of non-criminality under section 13 of the APCO) could not be entertained by this Court. As a matter of chronology, it is important to note that some of the criminal proceedings founded on section 13 had already been instituted (by reference to the date of the summonses) before the Writ in the present action was issued in August 2022. All the criminal proceedings are pending. 123.Mr Ma relied on the House of Lords’ decision in Imperial Tobacco Ltd v AG [1981] AC 718. There, the plaintiff tobacco company, upon legal advice, carried out a spot cash advertisement scheme where free tickets with prize chances would be given with cigarettes. The scheme was hugely successfully. But a criminal prosecution was initiated against the company and its employees, accusing the advertisement scheme of amounting to an ‘unlawful lottery’ under the relevant statute. The tobacco company then issued an originating summons seeking a declaration that the scheme was lawful and did not contravene the relevant statute. It was held that when criminal proceedings which are not vexatious and have been properly instituted, it will not be a proper exercise of the civil courts’ powers to grant to the defendant in the criminal proceedings a declaration that the facts being alleged by the prosecution do not in law prove the offence charged. The consensus in the House of Lords was that that would amount to an impermissible intrusion into the domain of the criminal courts rendering the administration of justice chaotic, even though technically the decision made by the civil courts would not be binding on the criminal courts as to how the criminal proceedings are to be resolved. 124.At p741B-G, Viscount Dilhorne said:
125.Lord Lane said at p752:
126.The material facts of Imperial Tobacco are on all fours with the present action, insofar as the declaratory relief at Item 6 is concerned. 127.But Mr Yuen emphasized that the civil courts, however, do have jurisdiction to grant a declaratory of such effect even after criminal proceedings have been instituted. He pointed to p750F-G of Imperial Tobacco, where Lord Lane said that “there is no doubt that there is jurisdiction to grant a declaration in these circumstances”. Lord Fraser of Tullybelton said at p746E-F said that in his opinion such declaration “ought not to be permitted except possibly in some very circumstances”. 128.Mr Yuen relied on Re A [2020] HKCFI 493, where Marlene Ng J after reviewing the Imperial Tobacco case and other authorities came to her view at §113 that (emphasis in original):
129.Mr Ma was happy to accept the proposition that the civil courts do have jurisdiction to make such a declaration even after criminal prosecution has been properly instituted. But he emphasized that this course should only be taken only in very exceptional circumstances. He said the Mr Yuen has never identified any such exceptional circumstances. 130.I note that in CCC’s written submissions, fleeting reference was made to the fact that the DOJ/EPD had taken a ‘stance’ in the 22 April 2022 hearing to the effect that it would be lawful for 22 CBP to operate without a SPL. But I have already rejected that any such ‘stance’ had been taken by the DOJ/EPD in April 2022. Putting that aside, there are no other ‘exceptional circumstances’ put forward by CCC, in either its written or oral submissions, to invite this Court to exercise its discretion to grant such a relief. 131.Mr Ma further drew my attention to another House of Lords case in Regina (Rusbridge) v A-G [2003] UKHL 38, where their Lordships clarified the criteria applicable to determine whether a case falls in the ‘exceptional category’. There, the plaintiff was an editor of ‘The Guardian’ which had been publishing materials advocating the replacement of the Crown by a republic government, by peaceful and constitutional means. He sought a declaration that the publication of such materials would not fall foul of the Treason Felony Act 1848 (which proscribes the publication of materials advocating replacement of the Crown) after the Attorney General had refused to confirm the same thing. 132.The House of Lords, at the invitation of the Attorney General, seized the opportunity to consider a more structured approach to what may constitute exceptional circumstances. At §§20-24, Lord Steyn considered the criteria for a case to fall within the exceptional category:
133.Rusbridger is a case when no prosecution had been instituted or intimated when the declaration was sought. The first criterion reinforces that a higher threshold has to be crossed for a case to fall within the exceptional category when a prosecution has already been instituted. 134.Most significant to Mr Ma’s argument is the second criterion. The declaration of non-criminality sought in Item 6 is not a question of pure law. It involves not only the proper construction of ‘total silo capacity’ but also the factual measurement of such capacity applying that legal construction. This is a strong factor militating against placing the present case in the exceptional category. Nor do I see any cogent public or individual interest which could be advanced by the grant of the declaration sought in Item 6. 135.I have no hesitation in striking out the declaratory relief sought in Item 6. I also have no hesitation in striking out Item 6A. It would plainly prejudice the criminal proceedings to declare that the EPD should refrain from asserting the position it is now taking in the criminal proceedings. 136.Turning to other items. Item 5 could be ignored and, in any event, it does not carry any effect in and of itself. 137.As for Items 1 to 4, at the oral exchange, I indicated that the usual remedy for torts will be damages, and damages only. The proper statutory construction of ‘total silo capacity’, even if needed for the proper disposal of the case, would only be set out in the judgment as part of the Court’s reasoning in reaching its conclusion. The Court is not expected to ‘declare’, by way of granting declaratory relief, each and every step of its reasoning process. Mr Yuen said that the advantage for this Court, sitting as the High Court, to grant declaratory relief on the proper interpretation of ‘total silo capacity’ is that this would provide a ‘guidance’ to ensure ‘consistency’ in the Magistrates’ Courts seized with the multiple summonses under section 13 of the APCO. Mr Yuen said the judgment in the present action, including the declaratory relief if granted, would function just as any other case authority which may shed light on the legal question the Magistrates’ Courts will have to determine in the criminal prosecution. He said the impact on the Magistrates Courts should be seen as some positive assistance rather than some negative influence or prejudice to the administration of justice. I disagree. 138.First, this ‘advantage’ is premised on the assumption that the present civil action would be concluded before the criminal proceedings, which sequence could only be guaranteed if the criminal proceedings are to be stayed pending the present civil action. 139.Secondly, it is important here that the criminal proceedings had already been instituted by the time the Writ was issued. The Magistrates’ Courts have to construe the meaning of the offence creating provision day in day out in the discharge of their duties. As Mr Ma pointed out, a defendant being prosecuted in the Magistrates’ Courts should not be allowed to ‘hive-off’ the proper construction of the statutory provision to be determined by some higher court. This would be the exemplar of what is considered in the Imperial Tabacco case as an impermissible intrusion into the domain of the criminal courts, and would render the administration of justice chaotic. The so-called advantage of ‘consistency’ as suggested by Mr Yuen could be no compensation. Besides, as Mr Ma said, the criminal courts have their own procedures or rules to handle the situation when multiple cases would require the interpretation of the same statute. The fact that the 20 Summonses had been fixed to be heard together on 4 May 2023 and 28 July 2023 showed that the Magistrates’ Courts were well aware of the commonality shared by the Summonses. 140.But I am not asked to stay the criminal cases pending the resolution of the present civil action and I doubt if this Court has the power to do so. Whether the criminal cases should be stayed pending the resolution of the present civil case is obviously a matter for the Magistrates’ Courts and, as I was informed, that was the very subject for the hearing fixed on 28 July 2023. 141.If necessary, I would also strike out the declaratory relief sought at Items 1 to 4, which could serve no useful purposes. G. Whether the Action is a Public Law Claim in Disguise 142.It is not disputed that litigating on public law issues by way of a writ action could be struck out as an abuse of process of the court. This is because permitting a claimant to proceed with a writ action on what should have been pursued by way of judicial review would allow the claimant to evade the time limit of three months and the threshold for obtaining leave as required by RHC Order 53. These principles, often considered to be authoritatively laid own in O’Reilly v Mackman [1983] 1 AC 237, were applied by the Hong Kong courts, for example in Next Digital Ltd v Commissioner of Police [2021] HKCFI 1677 at §§23-24, Wong Fuk Tim v HKSAR Government [2011] 5 HKLRD L3 at §§6-10. 143.Mr Ma submitted that the true nature of CCC’s case is a challenge to public law decisions made by the EPD based on public law grounds. The targets of challenge are the EPD’s decision on 28 January 2022 to call for cessation of all cement works at 22 CBP and its actions taken since February 2022 in relation to and consequent from that decision. The grounds for CCC’s challenge are that the EPD’s interpretation of ‘total silo capacity’ is erroneous in law and that its conduct was ‘plainly beyond the proper ambit and purpose of his lawful powers’. These complaints are reminiscent of the usual grounds of judicial reviews couched in terms of ‘errors of law’ or ‘ultra vires, abuse of power and/or improper motive’. Thus, Mr Ma submitted, it is an abuse of process of the court for CCC to litigate the present action by way of a writ action. 144.Mr Yuen did not dispute that a challenge to a public law decision or act based on public law grounds should be litigated by way of judicial review. But his submission was that CCC is claiming private law relief based on private law causes of action. He said the fact that the present action shares some overlapping factual background with HCAL 241/2022 is no basis to strike out the present action. Further, even if there are some public law issues incidental to the resolution of the causes of action relied upon by CCC, that is not a reason to strike out those causes of actions. 145.He sought to analogize CCC’s claims with the position in Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 AC 624, where the House of Lords held that a litigant possessed of a private law right could seek to enforce that right by ordinary action notwithstanding that the proceedings may incidentally involve the examination of a public law act or decision. 146.In the Roy case, a doctor’s remuneration was partly withheld by the public authority on the basis that his practice or service failed to meet a certain statutory requirement. The doctor’s relationship with the authority including his remuneration was governed by statutory provisions. The doctor claimed against the authority for payment of his services provided, by way of an ordinary civil action. The authority applied to strike out the claim as an abuse of process on the ground that its findings (leading to the remuneration being withheld) were a public law decision which ought to be challenged by way of judicial review. The House of Lords decided that it was apt for the doctor to proceed by way of writ action. The doctor’s claim was a claim for remuneration for the services he provided, whether or not it could be said to be contractual. The doctor possessed a private law right to be paid and to claim remuneration for the works he provided, and a claim based on such private law rights could be brought by way of writ actions: see Lord Bridge Harwich at 628H-629D and 630D-H, and Lord Lowry at 649H-650F. 147.Mr Yuen said the operation of cement works below 50 tonnes is not prohibited by any legislation. It follows that CCC has a private law right to operate 22 CBP as long as its total silo capacity is below 50 tonnes. He compared this with an individual’s constitutional right to choose his own occupation or profession. He said CCC’s claim is made based upon its private law right to operate 22 CBP with a total silo capacity below 50 tonnes and thus should be permitted to proceed by way of a writ action. 148.Mr Ma demonstrated some analytical rigour in his approach to the concept of ‘private law rights’. Legally speaking, an individual only has a ‘private law right’ which is capable of being enforced by way of litigation if the infringement of such right could be formulated into a cause of action recognized by the private law. Otherwise, there is no such private law right. He gave by way of example an individual who is prosecuted but is eventually acquitted. He said other than some ex gratia compensation scheme administered by the government, the acquitted defendant has no legal recourse to compensation for the ordeal through which he went. I might add to this example a qualification, namely unless the acquitted defendant could fit his circumstances into the tort of malicious prosecution. But Mr Ma has made his point. 149.In the Roy case, the plaintiff doctor indeed sued for his remuneration as damages for breach of the contract he entered into with the authority. The Court of Appeal found that such contractual relationship existed, and the doctor’s claim was a claim for damages for breach of contract. The House of Lords did not come to a definite view on this point but both Lord Bridge at 630D and Lord Lowry at 649D-G were of the view that the statutory terms were just as effective as contractual terms in conferring on the doctor an enforceable right to receive remuneration for services provided or that there were ‘contractual echoes in the relationship’. 150.Had I only had to consider the SOC without the amendments, I would be much more inclined to take Mr Ma’s view that the present action is a public law claim in disguise. Whilst the SOC makes a fleeting reference to ‘wrongful interference with contracts and/or the Plaintiff’s business’ and ‘causing loss by unlawful means’, it is certainly not easy to decipher from the SOC the facts which CCC intends to rely upon in proving each and every of the constituting elements of those torts. There is no attempt to set out in the SOC the usual factual particulars as would be expected in pleadings of those torts, such as identifying the specific contracts affected or the particulars that would be relied upon to prove the necessary intent or mental state. Nor is there any attempt to particularize the damages, the usual remedy for torts. Nor could I decipher why the dissemination of messages is said to be tortious except because that the EPD made an error of law in interpreting ‘total silo capacity’. The overall impression from a reading of the SOC is that the claim is that the EPD erred in its interpretation of the law and had been mis-using its public authority for improper or ulterior purposes. 151.However, with the substantial amendments in the ASOC, albeit still not without difficulties, one can start to see the shape of the four causes of action. It is well settled that it is possible for tortious claim in civil law to arise in the course of the public authority’s exercising of public law function and duties. I would not, therefore, strike out the ASOC on the basis that it makes only public law claims and should be struck out as an abuse of process. 152.Nevertheless, I have already explained above why, even after amendments, the ASOC is still defective in pleading the four causes of action such that it should be struck out in its entirety as disclosing no reasonable cause of action. H. Result 153.For the reasons set out above, I have come to the view that the entirety of the SOC/ASOC should be struck out for disclosing no reasonable causes of action and the declaratory relief should also be struck out on the additional ground of abuse of process or being scandalous or vexatious. The whole action falls away, and it is dismissed. 154.The amendment summons naturally falls away and is also dismissed. Insofar as it may be necessary, I make an order to allow the EPD’s summons to file the further affirmation. 155.I see no reason why costs should not follow the event. Therefore I order CCC to pay the EPD’s costs of the action (including the costs of these summonses and argument), to be taxed if not agreed with certificate for two Counsel.
Mr Rimsky Yuen SC, Mr Anthony Chan SC, Mr Enzo Chow and Ms Jennifer Fan, instructed by Lim & Lok, for the plaintiff Mr Johnny Ma SC and Mr Gary CC Lam, instructed by the Department of Justice, for the defendant | |||||||||||||||||||||||||||||||||||||
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