Yau Fook Hong Co Ltd and Others v. Attorney General

HCMP001622/1984

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: The Hon. Mr. Justice Hunter in Chambers.

Date of Hearing: 11 June 1984

Date of Delivery of Judgment: 11 June 1984

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JUDGMENT

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1. This is an application made by the Crown seeking the discharge of Orders made by Mr. Justice Garcia as amended. Those orders were dated 24th and 25th May and were amended on 1st June. The basis of the application is that the orders were made ex parte and therefore are reviewable before me under the provisions of Order 32 rule 6.

2. Mr. Kaplan for the applicants submitted initially that I had no jurisdiction to hear this because Order 53 creates its own code and that there is some implicit qualification upon the full breath of Order 32 rule 6. I ruled against that at an earlier stage. I was comforted in reaching that conclusion by the observations of Sir John Donaldson, M.R. in W.E.A. Records v. Vision Channel 4 (1983) 2 A.E.R. 589 where at page 593, the Master of the Rolls emphasised that all ex parte orders"are essentially provisional in nature". The judge making an order, he says, "expects at a later stage to be given an opportunity to review his provisional order in the light of the evidence and argument adduced by the other side. In so doing he is not hearing an appeal for himself, and in no way feels inhibited from discharging or varying his original order." The same principle applies to another high court judge if the initial judge is not available. That is frequently the position in Hong Kong where these orders are often made by the duty judge, and then return dates are given before one or other of their colleagues. It seems to me that I am in the position, so described by Donaldson M. R. I cannot see any difficulty about hearing this matter at all. In England, a common procedure when an application was made under Order 53 was to adjourn the original ex parte application on notice to the other side. I can see no difference between the procedure before me today and the substance of that procedure. So what I am really being asked to do is to look again at this order in the light of certain new facts which were put before me.

3. Now the orders were these. First that the applicants should have leave to make an application for judicial review for an order of prohibition. That order was made on 24th May. Second, on the 25th May, there was an order giving leave to make an application for judicial review for an order of certiorari to remove into this court and quash the decision of the Director of Lands made on 24th May. The order went on in paragraph 2 "And that all proceeding in consequence and as a result of the said decision be stayed until after the hearing of the motion of further order."

4. Now what has been put before me which was not before Mr. Justice Garcia in this. On 24th May the Director of Lands did not simply reject the applicants' tender, he accepted another person's tender. That acceptance was communicated to the successful applicant that same day. It is plain from the tender documents that have been put before me that if those facts are correct the effect was to bring into existence a binding contract between the Director of Lands and that successful tenderer. It is in those circumstances that it seems to me essential to look again at' the orders which Mr. Justice Garcia made.

5. The first relates to prohibition. I cannot see that he (or I if I had been in the same position) would have made that order on 24th, if I had then known what I know now, that this other successful tenderer's application had been accepted. Second was the application for certiorari. At the present moment I can see no basis whatever upon which this court can quash, the acts of the Director of Lands on 24th May. It is an event which has happened. The contract has been made. This court cannot put the clock back. If as a result the Director of Lands has put himself in the position of a man who has sold his car to two different people, then only one person can get specific performance. The other person can only get damages. I can see no basis on which this court can now grant an order of certiorari to quash the decision which does not simply affect this applicant, but directly affects some third party.

6. Equally I do not understand upon what basis sub-paragraph 2 of this order was made. If this is an echo of Order 53, rule 3(10), the word "proceedings" which is used there seems to me to relate to judicial proceedings or at least quasi judicial proceedings. I cannot begin to describe what may have gone on in the Director of Lands' office where these tenders were tabled as constituting proceedings: It does seem to me' somewhat embarrassing for the Crown to be faced with paragraph 2 of the Order, of 25th May as it stands, when injunctions cannot be granted against the Crown, Crown Proceedings Ordinance S.16. So that my conclusion on this is that in the light of this fresh fact there is simply no prospect of this judicial review for either certiorari or prohibition being granted.

7. In those circumstances Mr. Kaplan had sought leave to amend the existing notice of motion. To explain that application I should refer to another set of proceedings. On 9th June, last Saturday, another summons was taken out, an originating summons claiming certain relief by way of declaration. There are three different declarations being sought. The first is that on the true construction of certain documents that have been put before me, the plaintiffs were within the description of "registered owners of certain land exchange entitlements". The second is that upon the true construction of those documents, that when they submitted their deposits, Hong Kong government was contractually bound to consider the application on a certain basis, coupled with a declaration that Hong Kong government was contractually bound to award the land to a particular qualified applicant i.e. the applicant in this matter. Finally a declaration that in the premises the government of Hong Kong was liable for breach of contract, and for damages to be assessed.

8. I pause to point out that all those declarations are claimed upon the basis of the law of contract as applied to certain documents emanating from the Director of Lands. This was a straight application of the law of contract; a matter of private right being invoked by these applicants.

9. That application was launched last Saturday, coupled with a summons seeking an abridgment of time so that the whole matter could be tried by Mr. Justice Jackson-Lipkin on 27th June. The application which was made in the course of the hearing was this. The notice of motion originally issued pursuant to the orders of Mr. Justice Garcia was sought to be amended by adding to it precisely the same declarations as are claimed in the originating summons.That was sought to be justified it this way. It was said that the originating summons raised issues of private right. That is plainly true on its drafting. Then it is said that the proposed amendment to this notice of motion should be permitted to raise questions of public law and public right, which could only be ventilated in proceedings for judicial review. I have listened to Mr. Kaplan's submissions upon that with such attention as I can, but I am regret to say that I simply have not understood them. As I have indicated what is sought to be lifted, almost verbatim from one set of proceedings into the other, are declarations which are founded simply and solely upon the law of contract applied to particular documents. I can see no actual, potential or possible application of public law or public right in this context at all. Therefore it seems to me to be a pointless exercise to grant the leave to amend the notice of motion in the manner sought.

10. The notice of motion, at the moment, claims first of all an order for prohibition, which I have already indicated must in my view fail. Secondly it claims an order for certiorari which again I have already indicated in my view must fail. I think that the proper answer to these proceedings for judicial review is to say that they were misconceived, and that on the light of the present facts they simply must fail.

11. It by no means follows that the claim based upon private law fails. That is the claim at the moment which is raised in the second originating summons. The only issues on that before me are, should that claim proceed by way of originating summons or should it not and if it does proceed by way of originating summons should it proceed upon the very much reduced time-table put forward in the subsidiary summons?

12. Now one of the matters sought in that time-table is discovery. I have been told that discovery of the documents which have passed between the Director of Lands in relation to this particular town lot is essential to the applicant's claim. I have likewise been told that the matter involves going into the history of Letters B, which is fairly extensive. I have likewise been told that there will be a need here, or a probable need, for cross-examination of witnesses, because there could well be an issue of fact. Two things seem to me to stand out from that. First of all the time-table advanced, which would involve the originating summons from the starting point of last Saturday being tried on 27th June, it is simply quite unreal. I very much doubt if the court could ever abridge a time-table to this extent. under Order 3 rule 5 without consent. The second thing is that if there is any substance in the need for discovery, the potential need for cross-examination of witnesses and so on, this is a matter which ought to proceed in the ordinary way by writ. Because once one gets rid of the public right point, once you get rid of the judicial review point, (which if I am right on the first point in this application you do) one simply has a claim for damages for breach of contract, I cannot really see reason why that claim should not proceed in the ordinary way by writ.

13. So that in my judgment, what should happen here is this. I should accede first to the Crown's application and direct the discharge of the two orders which had been made in this matter by Mr. Justice Garcia. Secondly upon the originating summons dated 9th June I should direct that those proceedings shall proceed as if they were commenced by writ under Order 28 rule 8.

Representation:

Mr. N. Kaplan, Q.C., Mr. Sujanani instructed by Ip, Ku & Stoppa for Applicants.

Mr. N. Strawbridge, A.P.C.C., Mr. Osborne, C.C. for A.G./Defendant