Re Cheng Kar-shun and Another

HCAL 79/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 79 OF 2009

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Before: Hon A Cheung J in Court

Date of Hearing: 14 July 2009

Date of Judgment: 14 July 2009

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J U D G M E N T

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1.This is an application for leave to apply for judicial review to challenge certain orders of the Select Committee.  Those orders relate to the appearance of the applicants before the Select Committee at a hearing scheduled for 15 July 2009 at 9.30 am, in the LegCo Building, for which purposes summonses have been issued and notices to appear have been sent.  They also relate to the Select Committee’s requirement of the applicants to produce documents before or at the hearing.

2.Altogether, six substantive items of relief are set out in the form 86, raising various matters of challenge.  The Court has heard the applicants, through counsel, Sir John Swaine SC (Mr Chow, Ms Wong and Ms Yeung with him), on the application for leave.  As is with usual practice and, indeed, such practice has been embodied in the relevant rules, the application for leave has been heard on an ex parte basis.  Apart from specific matters on which the Court has sought assistance from others who are present in Court today, the Court has essentially heard Sir John on an ex parte basis.

3.So far as application for leave is concerned, the test is one of reasonable arguability.  It is not a particularly high threshold.  As the Court of Final Appeal, in setting the test, has explained, it is a test designed to screen out unmeritorious, frivolous, vexatious and purported challenges that are not reasonably arguable.

4.The test does not mean that leave should be refused if there appears, on the materials before the Court, respectable counter-arguments to those relied on by the applicant.  The focus is really on whether the applicant has shown, by the materials he or she has chosen to place before the Court, contentions that are reasonably arguable.

5.Bearing in mind firmly the threshold test just described, the Court is satisfied that items 1 and 2 in the relief sought set out in the form 86 do pass the test of reasonable arguability. 

6.Those grounds, in a nutshell, argue that the power to summons persons to testify or give evidence before the Legislative Council in pursuance of the Legislative Council’s exercise of its powers and functions set out in Article 73(1) to (9) of the Basic Law, given under Article 73(10) of the Basic Law, is restricted to the Legislative Council itself as an entire body, as opposed to any Select Committee thereof, particularly when the number of members comprising the Select Committee falls short of 50% of the total membership of the Legislative Council.

7.In my view, this is an important and serious constitutional challenge.  A reasonably arguable case has been shown and it must be dealt with at an inter partes substantive hearing.  Having said that, as indicated during counsel’s submission, the Court can readily see counter-arguments, and even significant counter-arguments, pointing to the contrary conclusion.  But that is really a matter for the substantive hearing.  At this stage, as I said, the Court is satisfied that a reasonably arguable case has been shown. 

8.The Court is likewise minded to grant leave in relation to item 3 of the relief sought.  It is a challenge against the Select Committee’s so-called expanded focus at the scheduled hearing.  The complaint essentially is that the Select Committee has deviated from and gone outside the scope of inquiry set out under the relevant Legislative Council resolution which set up the Select Committee in the first place.  In other words, it is an ultra vires argument.

9.Bearing in mind that the matters will be fully thrashed out at a substantive hearing, the Court would refrain from commenting on the strength of the arguments that have been presented by Sir John to the Court.  All I would indicate is that, having heard those arguments, the Court is just barely satisfied that a reasonably arguable case has been shown. 

10.The Court can see quite a number of difficulties facing this challenge but, again, that is a matter for substantive hearing.  To be fair to the applicants, today’s hearing has been brief and, of course, the applicants will present their full arguments before the Court at the substantive hearing.

11.Items 4, 5 and 6 of the relief sought deal with essentially four matters, namely, the constitutional right to privacy, the constitutional right to legal professional privilege, the constitutional right to have one’s dispute adjudicated by a court of law and the right under the Legislative Council (Powers and Privileges) Ordinance (Cap 382), section 13, to refuse answering questions or producing documents which relate to a subject matter of a private nature and does not affect the subject of the relevant inquiry.

12.Very fairly, Sir John, in the course of his submission and after exchanges between the Bench and the Bar, has indicated to the Court that the points involved are not his best points and, at the end of the day, has indicated that his clients have no intention to pursue those points in these proceedings.

13.In my view, the concession has been rightly made.  I do not think that, if pursued, those points would pass the reasonable arguability test.  In the circumstances, no leave is granted on those four points contained in paragraphs 4, 5 and 6.  In other words, 4, 5 and 6 do not attract the Court’s leave.

14.Item 7 is simply a rolled-up item.  It is a consequential item premised on the previous six items.  I would let item 7 in on the basis of items 1 to 3 in relation to which I have granted leave.

15.Item 8, likewise, is a consequential item, so on the basis of items 1, 2 and 3, item 8 is also allowed to be pursued at the substantive hearing.

16.Likewise, the first part of item 10 is a consequential matter.  I will deal with the question of interim stay at the next stage, but the first part of item 10 is a consequential matter so it will go in as well. 

17.That essentially disposes of the leave application but I would mention two things.  First, the Court has seriously considered the possible option of not deciding the leave application at this stage but, instead, ordering a rolled-up hearing.  In other words, the leave application and the substantive application will be rolled up into one hearing without the Court deciding first whether leave should be granted.

18.It must be emphasised that that is an extraordinary procedure.  In recent memory, the only occasion that such a procedure had been resorted to was the occasion when somebody challenged the sale of car parks to Link REIT on the eve of the floatation of the relevant company.  Special and extraordinary circumstances call for extraordinary measures.

19.In our present case, the Court acknowledges readily the fact that one is concerned with an ongoing LegCo Select Committee inquiry.  It is in the public interest that the inquiry be carried on to its logical conclusion within a reasonable period of time.  However, it does not entail the sort of urgency that would compel the Court to adopt the extraordinary procedure of a rolled-up hearing. 

20.Moreover, the Court has been able to come to a decision on the question of leave, applying the standard test, after hearing the applicants’ counsel’s arguments, so there is no real need for deferring that decision to another date.

21.That brings me to the second matter that I would like to mention before I conclude this part of the hearing today, and this relates to a matter raised by Mr Leung Kwok-hung, a Legislative Council member as well as a member of the Select Committee in question, ie the practical effect of the Court’s granting leave today – it would mean, in all probability, some delay in the work of the Select Committee.

22.Unfortunately, that is a price to be paid in our society which is governed by the rule of law so much cherished by all members of society.  Adjudication of legal rights inevitably requires time and, very often, time means delay.  The Legislative Council is no exception in terms of having to tolerate the inevitable delay that the process of administration of justice entails. 

23.However, it does not mean that there are no ways to minimise the delay and the Court would, at the next stage, when giving directions, see whether anything can be done to speed up the resolution of the substantive disputes. 

24.Although I have mentioned that I only wish to raise two points, perhaps I should make one last point.  The Court is acutely and anxiously conscious of the fact that the Legislative Council is an important institution in the governmental and political structure set up under the Basic Law for the proper governance of Hong Kong. 

25.Whilst this case raises some questions relating to the workings of the Legislative Council and the Court has given leave for some of those questions to be raised, it does not mean at all that the Court has lost sight of the fact that the Legislative Council plays a unique role of the utmost importance in Hong Kong.  In fact, the common law and the applicable law fully reflect that concern. 

26.But on the other hand, the Judiciary of the Hong Kong SAR has been charged with the duty of applying the law, including the Basic Law, to resolve disputes between parties and individuals and the Court cannot shrink from its constitutional responsibilities. 

27.Leave is granted on the above basis.  Costs of the ex parte application be in the cause.

28.For the avoidance of doubt, although the body of the form 86 referred at length to allegations of bias, actual or apparent, against certain members of the Select Committee, as has been clarified by Sir John during today’s hearing, the allegations do not form a ground in support of the items of relief set out in the form itself and, in fact, they play no role in the three substantive items, namely, items 1, 2 and 3, in relation to which the Court has given leave. 

29.The Court is not minded to ask the applicants to amend the form 86 to delete those references.  The Court will simply read and treat those references as part of the relevant background of the present challenge.  However, when one moves to the next stage, namely, the filing of evidence and, ultimately, the substantive hearing, no parties need be concerned by those references and allegations about bias, either in the evidence or in the argument, and the Court will not allow time to be expended on those matters at the substantive hearing. 

30.So with those remarks, the ex parte application is completely dealt with.  I will now hear the parties on an inter partes basis.

[Submissions on hearing dates]

31.I will not repeat myself.  The case raises a question of constitutional importance.  A LegCo Select Committee’s work is at stake.  Public interest is involved.  All this points towards fixing an early date; in fact, the earliest date for the hearing of the matter, so long as evidence can be filed by the parties to cover all necessary evidential grounds.

32.The only counterbalancing consideration is the applicants’ wish for the specialist counsel practising in London to be accommodated in terms of his or her diary, so that the London silk involved can become a member of the legal team representing the applicants. 

33.The debate is between holding the substantive hearing in the middle of August and holding it in the middle of September.  Superficially, the difference only relates to one month’s time, but it is no secret that the relevant inquiry has been going on for some time.  It is only right that it should be continued to its logical conclusion within a reasonable period of time.  Any delay is contrary to public interest.

34.Mr McCoy SC, on behalf of the Select Committee, has informed the Court that the extant proceedings would inevitably have a knock-on effect on the hearing of other witnesses before the Select Committee.  On top, there is the question of possible appeal from the court’s judgment on the matter.

35.Of course, one could say that that prospect makes the difference of one month quite irrelevant in the overall context.  On the other hand, each level of the court must do its best to contain the inevitable delay.  So far as this Court is concerned, its duty is to deal with the matter as soon as possible, given the public interest involved. 

36.The court has not forgotten the very understandable desire on the part of the applicants to be represented by counsel of their choice.

[Further submission by counsel]

37.I was on the question of the applicants’ desire to be represented by counsel of their choice.  But the Court sits for the administration of justice, as it has been said more than once, not for the convenience of counsel.  So far as London silks are concerned, I am sure there are more than one particular silk who would be available and competent to handle the case on behalf of the applicants.  Thus far, the applicants have only contacted one. 

38.Now, it is said that the London silk has been advising the applicants since day 1.  That happens from time to time.  But the other side of the same coin is that the applicants must have obtained written opinions or advices from the London silk and the rest of the legal team of the applicants can work from those legal opinions or advices.

39.Another point raised during the hearing is Sir John’s availability to conduct the case on behalf of the applicants.  But it has been very fair on the part of Sir John to accept that his prior engagement in the District Court in relation to a criminal matter may not necessarily stand in the way of the earliest dates, assuming that some indulgence could be obtained from the trial judge in that criminal case which is scheduled to last for some length.

40.So having balanced all considerations, I am of the view – and this has not been a particularly easy decision – that the earliest dates should be made use of for the substantive hearing.  That is on the assumption that satisfactory directions for the filing of evidence and so forth can be given.  On that basis, on that assumption, I shall work on the premise that the substantive hearing will take place on the 10th.

[Further submissions on hearing dates]

41.The dispute has been going on for some time.  The applicants must have been aware of their own intention, if worst comes to worst, to bring proceedings against the Select Committee, and they should have realised that the matter raises questions of some importance.  It concerns an ongoing LegCo inquiry.  They have got some time before today’s hearing to go into the law, do all the necessary research, look into the relevant cases in relevant jurisdictions and put in good order their arguments that they would like to present before the court.

42.If anything, today’s hearing makes their task easier by eliminating no less than four matters they originally intended to pursue in these proceedings, thereby focusing the applicants’ attention on two real matters of dispute that should go to the substantive hearing.

43.The applicants should also have realised that in a matter of this type, the court may very well decide not to accommodate the convenience of counsel.  In fact, in cases of lesser importance, convenience of counsel has very often been put to one side in order for cases to be dealt with without delay.  That simply reflects one of the underlying objectives of the recent Civil Justice Reform.

44.So despite the eloquence of Sir John, which I appreciate, I am not minded to take into account the availability or non-availability of the London silk in the equation any more than what I had already done when I first gave my ruling, this being a request to reconsider that ruling.

45.The only other matter is that, by my order, I would be imposing upon the District Judge and the client, whom Sir John will represent in the criminal case, to grant indulgence to Sir John to absent himself from the proceedings, or (as the case may be), to suffer the absence of Sir John from the proceedings while they are being carried on, in case no indulgence is given.  I bear in mind that that involves a criminal case.  Of course I said that on the assumption that the applicants will continue to be represented by Sir John.  I have heard no suggestion to the contrary, particularly when the London silk may not be available to appear before the Court.

46.So the only matter that really merits my reconsideration in this regard is Sir John’s availability.  At this stage, there can be no guarantee.  Depriving the applicants of one counsel of their choice is one matter; depriving them of two leaders is a different one. 

47.Bearing in mind all these matters, I am minded to move the hearing date from 10 August to 17 August, ie by one week.  That, of course, means a delay of another period of one week but having borne everything in mind, that is a delay that cannot be avoided in order to do justice to all parties.  Sir John will be available on the 17th because his criminal case is scheduled to finish by the 14th.

48.As to preparation and so forth, I am afraid practice at the Bar is always busy, but one is assisted by juniors and so forth.

[Further submissions on directions]

49.(1) Leave to the applicants to file and serve their originating summons on or before 17 July 2009.

(2) Leave to the respondents and interested parties opposing the application to file and serve their evidence on or before 24 July 2009.

(3) Leave to the applicants to file and serve evidence in reply on or before 31 July 2009.

(4) No further evidence be filed without leave of the court.

(5) Applicants do lodge with the court and serve on all other parties the bundles of documents and their written submissions on or before 7 August 2009.

(6) The respondents and all opposing interested parties do lodge with the court and serve on all other parties their written submissions on or before 12 August 2009.

(7) The substantive hearing of the application for judicial review be fixed for 17 and 18 August 2009, with the following date also reserved.

(8) Costs in the cause, with a certificate for two counsel (in relation to the ex parte application as well as the inter partes directions hearing).

Sir John Swaine SC, Mr Kenneth Chow, Ms Rosaline Wong and Ms Vivian Yeung, instructed by Reimer & Partners, for the 1st and 2nd applicants

Mr Gerard McCoy SC and Mr P Y Lo, instructed by Wilkinson & Grist, for the putative respondents

Mr Leung Kwok Hung, one of the putative respondents in his capacity as a member of the Select Committee, appearing in person

Mr Wesley W C Wong, DPGC, of the Department of Justice, for the Secretary for Justice (interested party)