Chu Yee Wah V.Director of Environmental Protection
Read the full judgment text of HCAL 9/2010 on BabelCite. This High Court CFI judgment was delivered on 1 November 2010.
1. On 1 November 2010, I ruled that the argument advanced by the Applicant at paras. 46 to 69, 89 to 99 of the skeleton submissions filed on her behalf cannot be entertained without the necessary amendment to the Form 86A filed herein. I now give reasons for that ruling.
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HCAL 9/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 9 OF 2010 ____________
Before: Hon Lam J in Chambers Date of Hearing: 1 November 2010 Date of Decision: 1 November 2010 Date of Reasons for Decision: 4 November 2010 ________________________________ REASONS FOR DECISION ________________________________ 1.On 1 November 2010, I ruled that the argument advanced by the Applicant at paras. 46 to 69, 89 to 99 of the skeleton submissions filed on her behalf cannot be entertained without the necessary amendment to the Form 86A filed herein. I now give reasons for that ruling. 2.In a nutshell, the argument advanced in those paragraphs launched a challenge based on the non-disclosure of the raw data fed into the PATH model in the EIA Report. Mr Dykes SC explained in his submissions that it is not a free-standing challenge. Rather, it should be understood as part of the argument as to why the Applicant said the EIA Report did not comply with the requirement of the Study Brief and as such not Section 6 compliant. 3.In my view, for present purposes, the crucial question is not how the argument is presented forensically. Rather one should ask whether a challenge based on the non-disclosure of the raw data has been clearly and specifically made in the Form 86A. In an application for judicial review, the Form 86A identifies the grounds of the challenge. The court decides whether to grant leave based on those grounds and, if leave is granted, the respondent decides how much evidence need to be put forward in answer to the challenge by reference to that as well. Thus, it is of fundamental importance that each ground of challenge should be clearly and specifically set out in the Form 86A. To permit new grounds to be slipped in by way of submissions is unfair to the respondent and bad case management not consistent with the underlying objectives in Order 1A. Further, if a ground is not contained in the Form 86A, it means that the court has not granted leave for an application for judicial review based on that ground. 4.Mr Dykes took this court to several paragraphs in the Form 86A. Having carefully considered those paragraphs, I agree with Mr Shieh SC that those paragraphs did not advance the attack now put forward in the objectionable paragraphs in the skeleton submissions. It is not sufficient to tag the attack onto a general averment that the EIA Report is deficient or not providing a full picture of the likely environmental impact. One should read the general averments in context to see whether the criticism as to the non-disclosure of raw data has fairly and squarely been raised. 5.Mr Dykes initially only referred to para.72 and sub-para. (i) at the very beginning of the Form 86A. Sub-para. (i) is a statement of a high level of generality, it reads,
6.The sub-paragraph does not inform its reader the actual basis why the general assertion is made. It could be anything. One has to look elsewhere for the specifics of the ground of challenge. If the non-disclosure point was not raise specifically elsewhere, it would be unfair and wrong to allow the argument to be slipped in by this general statement. 7.Paragraph 72 of the Form 86A reads,
8.With respect, I do not see how this paragraph can be regarded a fair notice to the court and the Respondent that the Applicant is challenging the EIA report on the ground that the raw data fed into the PATH model had not been disclosed in the report. 9.The only paragraph in the Form 86A dealing specifically with the PATH model is at para. 61(w) and it reads,
10.Quite understandably, the Respondent read this as an attack on the soundness of using the PATH model and evidence was led from Mr Christopher Fung to deal with this challenge. There is no suggestion in this paragraph that quite apart from the inherent soundness of the PATH model the Applicant challenged its use in the report on the ground that the raw data fed into the model was not disclosed in the report. 11.All general statements about the deficiencies of the report has to be read in this light. 12.Mr Dykes, in his reply, referred this court to some other paragraphs in the Form 86A. These are paragraphs added to the Form 86A by way of amendment after the Applicant has obtained her expert report of Mr Ormerod in July 2010. I must say I have some misgivings about the way in which the Applicant set out her case in the Form 86A by reference to that report. Instead of formulating proper grounds of challenge under public law, the Applicant simply described how the report was obtained and summarized the findings of the expert. It is very difficult to discern from such a summary as to the relevance of the report in the context of the public law challenges advanced in the Form 86A. 13.It is trite law that judicial review is not the forum for adjudicating on competing expert opinions as to the control of air quality. In the course of the hearing on 1 November I referred counsel to the judgment of Collins J in R (Lynch) v General Dental Council [2004] 1 All ER 1159 and invited counsel to consider the proper scope of expert evidence in the present case. Counsel agreed to provide this court with a memorandum on expert evidence identifying the relevant evidence on each issue that the court has to decide. 14.The task should have been performed in the course of drafting the amendments to the Form 86A to include references to the expert evidence. Be that as it may, I turn to the additional paragraphs relied upon by Mr Dykes. Paragraph 64 (d), (e) and (h) summarized part of the Ormerod Report. Sub-paragraph (d) criticized the EIA report in terms of the “failure to adequately detail model assumptions, inputs and uncertainties in respect of all models relied upon for the assessment.” Sub-paragraph (e) dealt with the worst case scenario and is not relevant for present purposes. Sub-paragraph (h) refers to the “failure to provide clearly presented information on model inputs in a readily understood way.” 15.Similar averment was added by way of Paragraph 70 (c) in the Form 86A, also relied upon by Mr Dykes. As a general allegation, it gives no clue as to what “input” the expert was referring to. It may or may not include the raw data input into the PATH model. As quite rightly submitted by Mr Shieh, since these are pleaded as a summary of the Ormerod Report, these general statements should be understood in the light of what was said in that report. And the relevant paragraph in that report identified by Mr Dykes is Paragraph 5 which reads,
16.I agree with Mr Shieh that the words in italics clearly indicated to a reasonable reader that in that paragraph, Mr Ormerod did not refer to non-disclosure of the data fed into the PATH model. 17.It is no answer that Mr Ormerod referred specifically to the raw data at para.10 of his supplemental report of 1 October 2010. This was not referred to in the Form 86A and paragraphs 64 and 70 cannot be read as such. 18.For these reasons, as things stand, my conclusion is that the Form 86A does not permit the Applicant to advance the submissions in the objectionable paragraphs as mentioned above.
Mr Philip Dykes, SC & Mr Dennis Kwok, instructed by Messrs Yip, Tse & Tang (DLA), for the Applicant Mr Paul Shieh, SC, instructed by Department of Justice, for the Respondent
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Cases cited in this judgment
Further hearings and rulings under HCAL 9/2010