Cheng Kar-shun and Another v. Hon Li Fung-ying, Bbs, Jp and Others
Read the full judgment text of HCAL 79/2009 on BabelCite. This Court of First Instance judgment was delivered on 6 August 2009 before A Cheung J.
Constitutional and administrative law – judicial review – Basic Law interpretation – extrinsic materials – relevance and admissibility – Legislative Council – power to summon witnesses – select committee – panel – sub-committee – case management – leave to file further evidence – late filing of affidavit – timetable adjustments – bundles of documents – written submissions – exclusion of submission paragraphs from affirmation evidence – costs in the cause – certificate for two counsel – public interest – exceptional importance of case. The applicants brought a judicial review concerning the Legislative Council's power to summons witnesses, raising issues of construction of the Basic Law. At a case management hearing before A Cheung J, the 2nd Respondent (Mr Lee) sought leave to file extrinsic materials he and his team had obtained, while other respondents applied to put in a second affidavit of Ms Pauline Ng regarding prior occasions on which the Legislative Council's summons power had been exercised. The Court emphasised the paramount importance of placing all relevant extrinsic materials before it when construing provisions of the Basic Law, citing principles from Court of Final Appeal decisions including Ng Kar Ling v Director of Immigration (1999) 2 HKCFAR 4 and Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211. Leave was granted to all parties to file further relevant extrinsic materials by 11 am on 10 August 2009, with any disputes as to relevance or admissibility to be debated at the substantive hearing. Leave to file Ms Pauline Ng's second affidavit late was granted on the basis of consensus that it was relevant to four specific matters, including confirmation that the summons power had been exercised before both before and after the Basic Law's promulgation to summon witnesses to select committees, panels, and sub-committees, and that both civil servants and non-civil servants had been so summoned without incident. The Court made timetable adjustments: applicants to lodge bundles by 10 am on 11 August, applicants' written submissions by 10 am on 12 August, and respondents' and interested party's submissions by 4 pm on 14 August, with the substantive hearing to commence on 17 August 2009. Mr Leung was granted leave to file his affirmation, with paragraphs 35 and 36 excluded as they constituted matters of submission rather than evidence. The Court ordered costs in the cause, taking a global view that the issues were case management matters, and granted a certificate for two counsel in light of the peculiar circumstances, exceptional importance, and public interest of the case.
Legal issues: Admissibility and relevance of extrinsic materials in Basic Law interpretation · Late filing of Ms Pauline Ng's second affidavit · Adjustments to timetable for bundles and submissions · Exclusion of paragraphs 35 and 36 of Mr Leung's affirmation · Costs and certificate for two counsel
Outcome: Case management directions made; leave granted to file further evidence; costs in the cause; certificate for two counsel granted.
Cites 3 cases
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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 ----------------------
---------------------- Before: Hon A Cheung J in Chambers Date of Hearing: 6 August 2009 Date of Judgment: 6 August 2009 ---------------------- J U D G M E N T ---------------------- 1.The most important consideration, from the Court’s perspective in the interest of the proper administration of justice, is that all relevant extrinsic materials that the Court can and indeed should look at in discharging its duty to construe the subject provisions in the Basic Law must be placed before it. I think that is the most important matter that has arisen out of this morning’s hearing. 2.To that end, the Court has to ensure that the parties have done their best to dig out the relevant extrinsic materials and place them before the Court. 3.One of the respondents, Mr Leung, has apparently done so, and he now applies for leave to put in the materials that he and his team have managed to dig out to place them before the Court. The Court is slightly concerned that the other parties have thus far not given this matter their most serious consideration. The Court can only speak from its own impression. It is not interested in finding out what has exactly happened –many of the matters may concern privileged advices and communications. The Court does not want to go into those matters. 4.Taking the situation as it is, the best the Court can do, apart from reminding the parties of the importance of placing all relevant extrinsic materials before the Court, is to allow the parties a further chance to produce them if they have not been included in the materials that Mr Leung now wishes to place before the Court, and the Court must give the parties time to do so. 5.Having considered the original timetable, and having borne in mind the milestone dates, ie the hearing dates on the 17th and 18th of this month, the Court takes the view that it can afford to give all other parties, with the exception of Mr Leung’s side of course, until the morning of Monday, say 11 o’clock, to put in further relevant extrinsic materials by way of evidence. 6.I emphasise the word “relevant” because not all extrinsic materials are relevant or admissible for the Court’s consideration, but the relevant principles have been clearly stated in a number of Court of Final Appeal cases, including Ng Kar Ling v Director of Immigration (1999) 2 HKCFAR 4, 28-29 and Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211, 223-225, and if there should be any dispute regarding whether any material is relevant or otherwise admissible, as it were, for the Court’s consideration, the matter can be debated at the substantive hearing. 7.I mentioned putting in those materials by way of evidence. That means setting out the necessary background of the extrinsic materials in the affidavit or affirmation evidence so that the Court can have the proper context when reading them. But beyond that, the parties cannot go. Particularly, no parties should seek to place any interpretation, expert or otherwise, on the contents of the relevant extrinsic materials in the evidence to be put in. That would be the job of counsel at the hearing. 8.In other words, the Court is giving all other parties leave until the morning, ie 11 am, on the 10th, to put in evidence to that limited extent and on that specific basis. 9.Now, some corresponding adjustments need to be made regarding the lodging of bundles and submissions, but before I deal with them, I need to deal with another application on behalf of the members of the select committee, apart from Mr Leung, to put in the second affidavit of Ms Pauline Ng. 10.At this morning’s hearing a consensus has emerged regarding the relevance of the matters deposed to in the second affidavit as well as the exhibits exhibited to the affidavit. It is now the consensus of all that the same is relevant to four and only four matters, namely:
11.Given that consensus, and on the basis of the consensus only, I am prepared to grant leave to the relevant respondents to put in the second affidavit of Ms Pauline Ng late, and on that basis, I do not see, at least as presently advised, any need on the part of the applicants to put in any evidence in reply, and Mr Pun has not suggested any. 12.Returning to the adjustments to the original timetable for the lodging of written submissions and bundles, given that evidence will only be completed by 11 am on the 10th, Monday, I think it is only fair that the applicants should be given until the morning of Tuesday to come up with the bundles of documents, and there are quite a number of them. 13.So I will give the applicants until 10 o’clock in the morning on the 11th to lodge the bundles of documents and to serve the bundles on the other parties. 14.In relation to the preparation of the bundles of documents, as indicated at this morning’s hearing, the voluminous exhibits to Ms Pauline Ng’s second affidavit should not be included in the bundles of documents with the exception of the first page of each of the exhibits relating to each of the inquiries in question, which summarises the summonses issued and sets out the identities of the witnesses concerned. 15.But of course, if, in the unlikely event that somebody needs to refer to the actual exhibits during the course of the hearing, he or she may do so, and the Court does have its own court file to refer to, and certainly the parties have already been served with the second affidavit together with a full set of exhibits. 16.Regarding the lodging of the applicant’s written submissions and authorities, I am minded to take a realistic approach. If the extrinsic materials were only to be placed before the Court by 11 am on Monday, ie 10 August, I do not think it would be fair to ask the applicants to come up with their written submissions at any time earlier than the morning of the 12th, although the applicants should have prepared a substantial part of their written submissions even before having sight of all relevant extrinsic materials from the other side. 17.So I am giving the applicants until 10 am on the 12th to lodge and serve their written submissions and authorities. 18.I accept that the position is not entirely ideal, and certainly the respondents and the interested party need time to look at the applicants’ submissions and to prepare their own, although again, even without sight of the applicants’ submissions, the respondents and the interested party should have prepared a substantial part of their respective submissions before. 19.So I am giving the respondents and the interested party until 4 pm on Friday the 14th to lodge and serve their respective submissions and additional authorities. By additional, I am excluding those authorities that have already been included in the applicants’ list. 20.The Court will be flexible with the hearing hours on Monday, ie the 17th. If the Court cannot finish reading all written submissions before 10 am on the 17th, the Court may stand down the matter for an hour or so in order to enable the Court to be fully equipped before starting the hearing, but if the Court manages to read all written submissions by 10 am, the Court will of course start the hearing as scheduled. 21.But in any event, it is not anticipated that commencement of the hearing on the 17th will be substantially delayed, so the parties must attend Court at 10 am on the 17th as scheduled. 22.The only outstanding thing apart from the question of costs is to give Mr Leung formal leave to file his affirmation for the reasons I have explained in some length in the above judgment. 23.I give Mr Leung leave to file his affirmation within today. I dispense with the service of the affirmation on the other parties. 24.I will give a similar direction in relation to the second affidavit of Ms Pauline Ng. In other words, I give leave to file the second affidavit within today. Service be dispensed with. 25.In relation to Mr Leung’s affirmation, paragraphs 35 and 36 are really matters of submission. To avoid unnecessary argument at this stage, in the exercise of my discretion, I would exclude those two paragraphs. So the leave given to Mr Leung to file his affirmation does not include the matters deposed to in paragraphs 35 and 36. Instead of asking Mr Leung to remake his affirmation, those two paragraphs need only be deleted, and I give leave to do so. [Submissions on costs] 26.I think the fairest order today, bearing in mind the court’s new approach to the question of costs, particularly in relation to case management matters, is costs in the cause. I have borne everything urged upon me so ably by Mr Pun in mind, but in my view, taking a global view of the matter, the issues canvassed this morning are really in the nature of case management and pre-hearing directions. 27.So I think the fairest and the most appropriate order is costs in the cause. 28.I am minded to grant a certificate for two counsel, given the very peculiar circumstances of the case and the exceptional importance of the case to the parties, and given the public interest in the matter as well. 29.So costs in the cause, with a certificate for two counsel. That applies to Mr Pun's team as well as to Mr Lee’s team.
Mr Hectar Pun and Ms Vivian Yeung, instructed by Reimer & Partners, for the 1st and 2nd applicants Mr Keith Ho, of Wilkinson & Grist, for the 1st to 6th and 8th to 12th respondents Mr Martin Lee SC and Ms Jocelyn Leung, instructed by JCC Cheung & Co, for the 7th respondent Mr Newton Chan, GC of the Department of Justice, for the interested party |
Cases cited in this judgment
Further hearings and rulings under HCAL 79/2009