Chan Ying Wah v. Chief Executive and Others

CACV 215/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 215 OF 2008

(ON APPEAL FROM HCAL NO. 136 OF 2005)

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BETWEEN

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Before: Hon Fok JA in Chambers

Date of Hearing: 26 September 2012

Date of Decision: 26 September 2012

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D E C I S I O N

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1.By his judgment dated 12 June 2008, Hartmann J (as he then was) dismissed the applicant’s application for judicial review of the respondents’ decisions refusing to grant him an ex gratia allowance in respect of a sea wall which he had constructed on certain agricultural land he held under licence from the Government.

2.The applicant is not satisfied with that judgment and has appealed against it by notice of appeal dated 4 August 2008.  The appeal is yet to be heard.

3.The present applications arise out of two summonses dated 10 July 2012 and 14 September 2012 respectively, whereby the applicant (whom I shall refer to as the appellant) seeks leave to adduce fresh evidence on the hearing of the appeal.  The summonses identify the new evidence as being that contained in two affirmations of the appellant, namely the 7^th and 8^th affirmations in these proceedings (four of the exhibits thereto being “CYW-46a”, “CYW-46b”, “CYW-46c” and “CYW-52” respectively).

4.The application is opposed by the respondents.

5.The principles on which fresh evidence may be admitted on an appeal are those laid down in Ladd v Marshall [1954] 1 WLR 1489.  There are three conditions before the court will consider exercising its discretion to admit the fresh evidence, namely: (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence must be such that, if admitted, it would probably have an important influence on the result of the case; and (iii) it must be such as is presumably to be believed, i.e. apparently credible, though not necessarily incontrovertible.

6.In public law cases those principles may be departed from in exceptional cases and where the wider interests of justice require: see Dr Kwong Kwok Hay v Medical Council of Hong Kong (No. 2) [2007] 4 HKC 446.  However, it is accepted on behalf of the appellant that there are no such exceptional circumstances so that the Ladd v Marshall test applies to the present application.

7.The fresh evidence sought to be adduced consists of various Government documents which the appellant has obtained from the Public Records Office.  There is no dispute that these are presumably to be believed (Ladd v Marshall Condition 3).  The dispute between the parties is whether Conditions 1 and 2 are satisfied.

8.To put this in context, the issues before Hartmann J concerned the ambit of an administrative scheme for compensation where land held under licence was resumed for redevelopment.  The scheme was set out by the Government in a memorandum in December 1964.  One of the categories of items for which an ex gratia allowance might be made under the scheme was “miscellaneous permanent improvements”.

9.There was an issue between the parties below as to whether the sea wall in question fell within the category of “miscellaneous permanent improvements” described in the 1964 memorandum as “wells, fences and other minor annexures to land not covered under other items in this schedule”. Hartmann J held that the sea wall was capable of constituting a miscellaneous permanent improvement under the scheme but that the words “other minor annexures” qualified the items which might constitute miscellaneous permanent improvements.  Since the sea wall (for which the appellant was claiming compensation in the sum of HK$7.79 million under the scheme) could not be described as a minor annexure to land, it was not a miscellaneous permanent improvement for which an allowance was payable.

10.A further issue between the parties below was whether the sea wall was primarily used for agricultural purposes.  The Judge held that it was not irrational for the respondents to have concluded that it was not so used.

11.The appellant now seeks to rely on documents obtained from the Public Records Office.  In summary, the fresh evidence is relied upon in order to show that the words “other minor annexures to land not covered under other items in this schedule” did not mean that all items under the “miscellaneous permanent improvements” category must be minor in size before the ex gratia allowance is payable under the scheme.  He also seeks to rely on the further documents to demonstrate that payments have in the past been made for substantial miscellaneous permanent improvements.

12.As to Condition 1 of the Ladd v Marshall test, it is apparent from the fact that all the documents now sought to be relied upon as fresh evidence (being the various exhibits referred to above and not the appellant’s comments and submissions on those exhibits in his 7^th and 8^th affirmations which contain the evidence in support of these applications to adduce fresh evidence) are documents which date from between the 1950s and 1980s and so existed long before the date of the hearing below which commenced in April 2007 and eventually concluded in June 2008.  It is therefore incumbent on the appellant to explain why he could not, by the exercise of reasonable diligence, have adduced them below.

13.The appellant suggests that the relevance of the issue of what has been referred to as the “minor annexure requirement” was not made clear to him until the hearing on 11 June 2008.  Since then, he tried to obtain evidence regarding that requirement but was unable to do so before the dismissal of his judicial review.  He eventually conducted searches at the Public Records Office between 26 August 2008 and 8 October 2008. Although his solicitors were still on the record at the time, he was financially unable to continue to retain counsel who had appeared for him at the trial.  His application for legal aid was refused as was his request for free legal representation from the Bar Free Legal Service Scheme.

14.That the sea wall was too extensive to be described as a “minor annexure to land” was identified as an issue in the respondents’ evidence as early as 15 February 2006 (see the affirmation of Mak Po Kwan, Ezekiel of that date at §§11 and 19). Furthermore, after the hearing commenced in April 2007, it was adjourned part-heard three times (in April 2007, August 2007 and January 2008) before eventually being concluded after two further days’ hearing in June 2008.  In the meantime, before the hearing resumed in January 2008, the issue of whether the “miscellaneous permanent improvements” category under the scheme included what was referred to as the “minor annexure requirement” was addressed in evidence of the respondents filed on 11 December 2007.

15.In the circumstances, I am not satisfied that the fresh evidence sought to be adduced could not have been obtained with reasonable diligence for trial.

16.It was suggested in argument by the appellant that the fresh evidence was not available by reason of the Public Records (Access) Rules 1996.  The appellant suggested that Rule 3 of those Rules mean that public records would only be available for public inspection if they had been in existence for not less than 30 years and since some of the fresh evidence was contained in a file containing materials dated as late as 3 January 1977, they were not therefore available.

17.However, even if the documents in the file in question were all from January 1977 (which they are plainly not), the 30 year period for such documents would have expired in January 2007, which was before the commencement of the hearing below.  Reliance on the Public Records (Access) Rules 1996 does not, it seems to me, assist the appellant to show that, with reasonable diligence, the fresh evidence could not have been obtained for trial.  The fact that some further evidence (but not related to the subject matter of the present applications) was adduced by the appellant below pursuant to an application to the Judge in January 2008 demonstrates that the appellant and his legal representatives were in practice well able to adduce evidence thought to be relevant to his judicial review application.

18.Given my conclusion on Condition 1, it is not strictly necessary to consider whether Condition 2 of the Ladd v Marshall test is satisfied, namely that the fresh evidence would have an important influence on the result of the appeal.

19.However, this question having been canvassed in argument, I shall briefly state my reasons for reaching the conclusion that I am also not satisfied that this condition has been satisfied.

20.I am not satisfied that the documents in exhibit “CYW-46a” demonstrate that items need not be minor to fall within the miscellaneous permanent improvements category.  Some of the documents pre-date the establishment of the miscellaneous permanent improvements category and it is questionable whether they assist in interpreting the ambit of the category.  The reference to the anticipated amounts of pay outs being in many cases “quite small” does not justify the inference that large payments for non-minor items would be allowed.

21.I am not satisfied that the documents in exhibit “CYW-46b” demonstrate that the Government has consistently been paying substantial ex gratia allowances for miscellaneous permanent improvements.  Again, some of the documents pre-date the establishment of the miscellaneous permanent improvements category under the scheme.  Some of the documents evidence estimates only and not the amounts of actual pay outs of allowances.

22.I am not satisfied that the documents in exhibit “CYW-46c” are relevant.  It is sought to rely on these to demonstrate that there has been no change to the phrase “and other minor annexures to land” over the years.  However, the respondents do not suggest that the meaning of this phrase has changed and it was the Judge’s finding that the minor annexures requirement remained part of the scheme at the time when the appellant was seeking compensation for the sea wall (see Judgment §63).

23.I am not satisfied that the documents in exhibit “CYW-52” demonstrate the payment of a substantial ex gratia allowance under the scheme for miscellaneous permanent improvements in respect of one particular project covered in the documents in exhibit “CYW-46b”.  There are plainly distinguishing features.  For example, the project in question for which compensation was paid appears to have involved resumption under the Crown Lands Resumption Ordinance rather than the termination of a licence.  The documents appear only to support a decision to resume and an estimate of cost rather than an approval of compensation for any particular item.

24.For the avoidance of doubt, my conclusions in respect of Condition 2 are made with reference to the fresh evidence sought to be adduced on these applications and they are not conclusions in relation to any substantive issue that will or may be argued at the appeal itself.

25.Since I am not satisfied that the appellant can satisfy the Ladd v Marshall test in respect of the fresh evidence sought to be adduced, I do not consider I have discretion to grant leave to the appellant to do so and I therefore dismiss the applications.

26.The costs of the applications will be paid by the appellant to the respondents, such costs to be taxed if not agreed.

Mr Ken T C Lee, instructed by Rowland Chow, Chan & Co., for the Applicant

Mr Simon K C Lam, instructed by the Department of Justice, for the Respondents