Chik Po Yee v. Vocational Training Council and Another

HCAL 59/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 59 OF 2005

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BETWEEN

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Before: Hon A Cheung J in Chambers

Date of Hearing: 8 November 2005

Date of Judgment: 8 November 2005

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J U D G M E N T

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1.The hearing of the substantive application for judicial review is fixed for next Tuesday.  This is an application by the Respondents to adjourn that hearing pending the decision of the Court of Final Appeal in the case of New World Development Co. Ltd v. Stock Exchange of Hong Kong Ltd [2005] 2 HKLRD 612.  As is now well known, the New World decision concerns the right of a person to legal representation when charged with a disciplinary offence in a disciplinary tribunal.  The decision of the Court of Appeal would seem to suggest that in some of those cases, such a person charged would have the right under the Basic Law and the Bill of Rights to unrestricted legal representation.  The respondent in that case has taken the matter to the Court of Final Appeal and, as I understand it, the appeal will not be heard until several months later. 

2.In this judicial review application, a similar point has arisen.  That is the only reason put forward by the Respondents in support of today’s application for an adjournment. 

3.This is essentially a matter of case management.  I must balance all the relevant factors.  I bear in mind that the Court of Final Appeal will not hear the appeal in the New World case until several months from today.  There is also the logistic question of finding a new hearing date for this present application for judicial review after the result is known in the Court of Final Appeal case.  More importantly, this case concerns the reputation and career of an academic who has been convicted in the relevant disciplinary proceedings and who has lost her job with the Vocational Training Council, the 1st Respondent.  She has put in evidence in opposition to today’s application detailing the difficulties she has since encountered in finding alternative employment and pursuing her career because of her conviction.  It goes without saying that the longer the whole matter is hanging over her head, the more prejudice she would suffer in the process.  Through counsel she has made the general point, which I accept as correct, that a case should be decided according to the law as it is.  What the law may eventually be stated to be by the Court of Final Appeal is everybody’s guess.  This is particularly so when the hearing of the substantive application will, subject to today’s application, be held within a week’s time. 

4.I think Mr Kenneth Chan appearing together with Mr David Chum for the Applicant at today’s hearing has also made a valid point that whilst the New World point, if I may call it that way, is a main point in the present judicial review application, that is not the only point that has been raised and will have to be decided by the Court.  Moreover, I think counsel is also right in submitting that, barring any wholly unexpected result, it is unlikely, and very unlikely indeed, that the outcome of the appeal to the Court of Final Appeal in the New World decision will conclusively and automatically decide the outcome of the New World point raised in the present judicial review application.  At least according to the Court of Appeal’s decision in the New World case, whether a person charged in this sort of proceedings before a disciplinary tribunal has an unrestricted right to legal representation must be decided on a case-by-case basis.  That a person charged before a disciplinary tribunal set up in relation to the Stock Exchange has an unrestricted right to legal representation – as has been held to be the case by the Court of Appeal in the New World case – does not necessarily mean that a person like the Applicant who is charged before a disciplinary committee set up in relation to the Vocational Training Council must have a similar right to unrestricted legal representation.

5.As I say, unless the Court of Final Appeal should drastically restrict the scope of operation of the relevant articles in the Basic Law and Bill of Rights in the pending appeal in its interpretation of those articles, it is unlikely that that appeal would automatically decide the so-called New World point raised in these proceedings. 

6.Viewed in that light, it is really doubtful whether adjourning the hearing next Tuesday would save the parties’ time and costs in relation to the present dispute. 

7.I have not forgotten that Mr Dennis Law, counsel appearing for the Respondents at today’s hearing, has postulated during his submission a number of possible scenarios to the effect that if the Court should refuse his application, that would increase costs in these proceedings as well as the disciplinary proceedings (if the Court should also decide to quash the disciplinary decisions in question).  I have borne those possibilities in mind but they are mere possibilities. 

8.There are also other possibilities in which some time and costs could be saved by proceeding with the hearing as scheduled.  It is not for me to weigh up the various possibilities.  That would be quite an impossible task to perform. 

9.I also bear in mind that even if this Court should decide the matter in favour of the Applicant at next Tuesday’s hearing – assuming that there should be no adjournment, that might not by itself entirely clear the name of the Applicant because all that the decision of the Court would mean would be that the disciplinary decisions would be quashed.  The charges would still remain and the disciplinary committee could still re-try them.  But I would imagine even that sort of semi-victory would help to alleviate the difficulties that the Applicant has been facing since her conviction by the tribunal in the proceedings in terms of finding new jobs and keeping them. 

10.I also bear in mind that if I should refuse the application to adjourn and proceed to hear the application and if my decision should be at variance with the decision of the Court of Final Appeal in the New World case, that (ex hypothesi)erroneous decision of mine would be liable to be corrected through the normal appellate channel.  That that would result in the incurring of further costs and time is just a normal risk that any litigation would entail.  I do bear that in mind but I do not think it carries too much weight in the weighing exercise. 

11.I have, as I have indicated above, borne in mind the question of costs generally.  I have also borne in mind the questions of judicial resources, time, duplication or wasting of efforts and so forth that have been urged upon me.  In short, I have borne all the arguments as well as the relevant circumstances in mind, particularly those matters specifically dealt with in the respective written submissions of counsel for whose assistance I am grateful.

12.Having borne everything in mind and looked at the matter in the round, in the exercise of my discretion by way of case management, I refuse the application.  I think the balance overall lies in favour of hearing the substantive application as scheduled. 

[Submissions on costs]

13.The general rule is, of course, that costs should follow the event.  I have borne in mind Mr Law’s argument.  I follow his point but I do not think his point is sufficient to displace the prima facie rule.  So I give the costs of today’s application to the Applicant, in any event, to be taxed if not agreed. 

Mr Kenneth Chan and Mr David Chum, instructed by Messrs Yeung & Chan, for the Applicant

Mr Dennis Law, instructed by Messrs Wilkinson & Grist, for the 1^st and 2^nd Respondents