Chung Ying Kwai v. Tsuen Wan Rural Committee and Another
Read the full judgment text of HCAL 2485/2000 on BabelCite. This High Court CFI judgment was delivered on 6 February 2001 before Cheung J.
Constitutional and administrative law – judicial review – leave to apply for judicial review – village representative elections in the New Territories – summons to set aside leave to commence judicial review – alleged undue delay and detriment to good administration – whether summons should be dismissed – whether there was a clear agreement that hearing was for directions only – held: no clear agreement reached, applicant entitled to proceed on summons – no affidavit filed in support of summons – judicial review should be dealt with as quickly as possible – issues of delay and prejudice to the Administration can be raised again at the substantive hearing – summons dismissed – leave granted to applicant to serve and file notice of motion within three days.
Legal issues: Whether summons to set aside leave for judicial review should be dismissed · Whether there was a clear agreement that the hearing was for directions only
Outcome: Summons dated 21 December 2000 issued by the 2nd respondent dismissed; leave granted to the applicant to serve and file the notice of motion within three days.
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HCAL002485/2000 HCAL2485/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW -----------------------------
--------------------------- Coram: Hon Cheung J in Court Date of hearing: 6 February 2001 Date of decision: 6 February 2001 --------------------- D E C I S I O N --------------------- 1. The parties attended before me today on a summons issued by the applicant. The applicant asked for the following relief :
2. The orders I had made were to dismiss the summons of 21 December 2000 and granted leave to the applicant to serve and file the notice of motion within three days. 3. This is a matter concerning the election of village representatives in the New Territories. On 30 November 2000, I granted leave to the applicant to commence judicial review against the respondents but stayed the application until the Court of Final Appeal had rendered its decision in two similar cases. The Court of Final Appeal delivered its decision on 23 December 2000. Two days before the decision, on 21 December 2000, the 2nd respondent, issued a summons, without any supporting affidavit, asking for an order that my earlier order granting leave be set aside. The hearing of that summons is fixed for 4 May 2001. The basis for setting aside my earlier order is, according to the summons, "on the evidence to be filed by the 2nd respondent herein, the undue delay on the part of the applicant in applying for leave for judicial review is detrimental to good administration". 4. Although Ms Fung, counsel for the 2nd respondent, claimed that an agreement had been reached with Mr Yam, counsel for the applicant, that today's hearing was for the purpose of obtaining directions only, this was disputed by Mr Yam. In the absence of a clear agreement to seek directions only, the applicant was entitled to proceed on the summons today. An oral hearing was granted for the application for leave. The 2nd respondent was represented by counsel at that hearing, in which I had specially asked the parties to address me on the question of delay in bringing the application. Irrespective of the nature of that hearing, i.e. whether it was an ex parte or an inter parte hearing, the fact is that counsel for the 2nd respondent had made submission on the questions of delay in bringing the proceedings and prejudice to the Administration. Furthermore, these issues can clearly be raised again when the judicial review is heard. Until now, no affidavit has been filed for the summons to set aside my earlier order. Judicial review should be dealt with as quickly as possible. To wait until May 2001 or relist the hearing date of the summons to an earlier date would only cause further delay in this matter. The appropriate orders that should be made were the ones that I had given.
Representation: Mr Stephen Yam, instructed by Messrs Littlewoods, for the Applicant Ms Jenny Fung, SGC of Department of Justice, for the 2nd Respondent 1st Respondent, in person, absent |