Re Hui Kwok Hung, Terence Christopher Mountain, Michael Reid Scott
Read the full judgment text of HCAL 151/2004 on BabelCite. This High Court CFI judgment was delivered on 16 December 2004.
1. This is an application made pursuant to RHC Ord. 53 r. 3(10)(a) (“ this application ”). The material parts of that rule provide:-
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HCAL 151/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS NO. 151 OF 2004 ____________
____________ Before: Hon Chung J in Court Date of Hearing: 10 December 2004 Date of Handing Down Judgment: 16 December 2004 _______________ J U D G M E N T _______________ Introduction 1.This is an application made pursuant to RHC Ord. 53 r. 3(10)(a) (“this application”). The material parts of that rule provide:-
2.The application for judicial review was taken out on 29 November 2004 (“this JR application”). Leave to apply was granted by Hartmann J. on 1 December 2004 who also directed that this application be heard on 7 December 2004. For reasons which are irrelevant for present purposes, this application was transferred to me subsequently. 3.This JR application is brought by the applicants, all of whom are serving civil servants who have been allocated, and reside with their families in, domestic units at one of the non-departmental quarters (“NDQ”) at Mount Nicholson Gap (“ the Mt. Nicholson NDQ”). 4.In a letter dated 28 August 2004, the respondent gave the residents of the Mt. Nicholson NDQ (including the applicants) notice that they are required to deliver vacant possession of their quarters by 31 August 2005 (“the said notice”). The reason for such notification was given therein:-
5.The other relevant parts of the said notice state:-
6.The applicants seek to challenge the said notice “and the associated decision (confirmed by [the said notice]) to dispose of the quarters in 2005/2006” on several grounds including:-
The respondent denies the above and contends the said notice was validly given and the decision to dispose of the Mt. Nicholson NDQ was validly made. Applicable Legal Principles 7.The legal principles relevant to this application are undisputed. The respondent sums them up in its skeleton submissions as follows:-
Exercising the Discretion in This Application 8.The major dispute between the parties is whether the applicants’ interest will be prejudiced by the refusal of an interim relief pending the outcome of this JR application: the applicants contend they would be whereas the respondent contends they would not. 9.The essence of the applicants’ argument is as follows. No date has yet been fixed for the hearing of this JR application. Accordingly, it is unknown when this JR application will be heard (and determined). They need an interim order to stay (at least) the said notice so that, if the hearing of this JR application should be later than 31 August 2005, the applicants would not be required to deliver vacant possession of their respective domestic units. 10.The respondent argues, on the other hand, that in view of the importance of this JR application, it is likely that the court will give the parties an early hearing date, perhaps sometime in January or February 2005. In that case, there will hardly be any need for an interim order. 11.Further, the respondent argues that in any event, an interim order will not serve any useful purpose for the applicants (except for the limited purpose set out below). This is because (so the respondent submits) the nature of an interim order is “to hold the ring”, that is, to maintain the status quo pending the determination of the substantive matter. Such an order lapses with such a determination. 12.Therefore, if the hearing of this JR application should take place before 31 August 2005, the applicants cannot benefit from the grant of an interim order: if the applicants should be successful in this JR application, the decisions under challenge will be set aside; on the other hand, if they should be unsuccessful, it would mean the respondent has all along been acting lawfully. The applicants will therefore have to act in accordance with the said notice. 13.Based on the above, the respondent argues that, the applicants have to satisfactorily show that the hearing of this JR application is likely to take place after 31 August 2005 before they may be able to show that an interim order serves a real purpose, namely, that they can continue to stay in the Mt. Nicholson NDQ until the determination of this JR application. 14.In short, I agree with the respondent’s arguments set out above. 15.In reply to the respondent’s above arguments, the applicants further argue that the following part of the said notice should be stayed as well:-
This part of the said notice requires the applicants to act according to the time-table set out therein. Hence, the relevant deadline is not 31 August 2005, but at least a few months earlier. 16.The respondent says that this part of the application falls outside the ambit of this JR application and, for that reason, I should reject it. 17.It is unnecessary to determine the last-mentioned issue. Those responsible for listing have very helpfully indicated that dates have been made available from the court’s diary for this JR application to be heard before 7 February 2005. For this reason, the risk of prejudice to the parties is reduced to the extent that I do not consider an interim order to be necessary. Other Matters 18.The applicants also submit that the grant of an interim order will not affect public interest. This does not appear to be disputed by the respondent. 19.Finally, the applicants argue that if this application is dismissed, the other residents of the Mt. Nicholson NDQ affected by the said notice will conclude that this shows that this JR application has no merit. I agree with the respondent that, because of the different nature of this application and this JR application, there is no proper basis for so concluding. Conclusion 20.This application is dismissed. 21.For the purpose of assisting the further conduct of this JR application, the following directions are given:-
Costs Order Nisi 22.There is no apparent reason to depart from the usual rule that costs should follow the event. There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application (including any reserved costs) be paid by the applicants to the respondent, to be taxed if not agreed in any event.
Mr Hui, Kwok Hung acts in person and absent Mr Mountain, Terence Christopher acts in person and present Mr Scott, Michael Reid acts in person and present Mr Anderson Chow SC, instructed by Secretary for Justice, for the Respondent |