由此
A A
HCAL184/2002
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
E NO.184 OF 2002 E
F --------------------- F
BETWEEN
G G
SHIU WING STEEL LIMITED Applicant
H H
and
I I
DIRECTOR OF ENVIRONMENTAL PROTECTION Respondent
J AIRPORT AUTHORITY OF HONG KONG Interested Party J
----------------------
K K
Before : Hon Burrell J in Chambers
L L
Date of Hearing : 23 July 2003
M Date of Decision : 24 July 2003 M
N ---------------------- N
DECISION
----------------------
O O
1. This is an application by summons by Shiu Wing Steel, the
P P
applicant in a judicial review against the Director of Environmental
Q Protection (“the Director”) (and the Airport Authority of Hong Kong Q
(“HKAA”), as an interested party), for leave to re-amend its application for
R R
judicial review and to serve further evidence.
S S
2. The decision being challenged is that of the Director on
T T
28 August 2002 granting an Environmental Permit for the construction of a
U U
V V
由此
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A A
permanent aviation fuel farm (“PAFF”) next to Shiu Wing Steel’s steel
B B
plant near Tuen Mun, New Territories.
C C
3. The relevant chronology is as follows :
D D
(a) On 13 July 2002, prior to the decision, the applicant wrote to
E E
the Director setting out its objections to the PAFF.
F (b) On 21 October 2002, after the decision, the applicant wrote to F
the Director and the Town Planning Board repeating its
G G
concerns and enclosing the “Mclnnis” report in support.
H (c) On 1 November 2002, the applicant filed for judicial review H
which was granted on 13 November 2002. The Mclnnis
I I
report was included in the application for leave.
J (d) On 5 February 2003, the Director filed its evidence in J
response which included a further report, the “Shell” report.
K K
(e) On 12 February 2003, the HKAA filed its evidence in
L
response which included a further report, the “AEA” report. L
M (f) On 30 May 2003, the applicant notified the Director and M
HKAA that it intended to make the application which is now
N N
before this court, namely to amend its application for leave
and file the following further evidence :
O O
(i) an “HSL” (Health & Safety Laboratory, UK) report in
P P
substitution for the Mclnnis report;
Q (ii) an affirmation from Mr T. Maylor, HSL’s chief Q
engineer; and
R R
(iii) a report from Mr L. Rostik, a steel expert.
S S
T T
U U
V V
由此
- 3 -
A A
4. The thrust of the objections is that the further evidence was
B B
not before the decision maker and, for the purposes of judicial review, it is
C therefore inadmissible and irrelevant and to admit it would be contrary to C
legal principles.
D D
E 5. Having heard counsel for the applicant, E
Mr Charles Haddon-Cave, QC, counsel for the Director,
F F
Mr Benjamin Yu, SC leading Mr Anthony Ismail and counsel for the
G HKAA, Ms Gladys Li, SC on 23 July 2003, I am persuaded by the G
cumulative effect of the following factors, that leave to amend should be
H H
granted and the evidence admitted de bene esse.
I I
Reasons :
J J
(1) Granting such leave is an exercise of the court’s discretion.
K The reasons which follow have weighed in favour of that K
discretion being exercised in the applicant’s favour.
L L
(2) The HSL report is not an additional report. It replaces the
M Mclnnis report. M
N
(3) The HSL report does not disagree with the Mclnnis report, it N
focuses on, reinforces and enlarges upon that part of the
O Mclnnis report upon which the applicant relies and has always O
relied.
P P
(4) The Mclnnis report, the Shell report and the AEA report all
Q themselves post-date the decision under challenge. Q
R
(5) The applicant’s case for judicial review has not altered. Its R
grounds remain the same. The decision being challenged is
S the same and the relief sought is the same. S
T T
U U
V V
由此
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A A
(6) The effect of the HSL report should be to narrow the issues
B B
not widen them.
C C
(7) The prejudice to the Director and the HKAA, if any, is
D
minimal. It remains open to them to challenge the D
admissibility and relevance of the further evidence at the
E hearing. The parametres of judicial review proceedings are E
well defined and the court, at the hearing, will be better placed
F F
to decide whether any of the evidence falls outside those
G parametres. G
(8) The respondent’s and interested party’s concern that admitting
H H
the HSL report will cause the judicial review to “go off the
I rails” is misplaced. The court is aware of its task in these I
proceedings and will no doubt be reminded again by counsel
J J
at the hearing that the court is not so much concerned with the
correctness of the decision but with the way in which it was
K K
reached. The court will strive to keep it “on the rails” at all
L times. L
M
(9) Recent decisions suggest that post-decision material may be M
admissible where the applicant is complaining that the
N original inquiry was defective because it failed to consider N
important materials and facts which could have been elicited
O O
at the time. The HSL report falls into this category.
P (10) It is at least arguable that the contents of the HSL report are P
directly relevant to the challenges to the decision, as set out in
Q Q
the application.
R (11) In view of all the above matters, it is worth noting that the risk R
of an injustice, however remote, is greater if the application is
S S
refused than if it is granted. I acknowledge however that
T taken on its own and in isolation, this general comment would T
U U
V V
由此
- 5 -
A A
not provide sufficient reason for exercising the discretion in
B B
the applicant’s favour.
C C
D 6. I informed counsel that the court’s reasons would be brief. D
They are brief because the parties need to know the court’s decision as
E E
soon as possible, the judicial review itself being six weeks hence. All
F parties have expressed concern that the hearing will not be adjourned. F
G G
7. In this context, I make the following remarks and directions :
H H
(1) The hearing due to commence on 5 September 2003 —
I Any application to adjourn the hearing should be treated I
unsympathetically and only granted for exceptional and
J J
unforeseen reasons. If any party regards the five-day
K estimate as insufficient, it should inform the other parties and K
the court at least 21 days before 5 September 2003. The
L court will hear the judicial review to a conclusion should it L
overrun. It will not be adjourned part heard, again, unless
M M
exceptional and unforeseen reasons emerge.
N Given the court’s task in judicial review proceedings, I can N
see no grounds, at present, to allow witnesses to be called to
O O
give evidence, should any such application be made. Neither
P am I likely to accede to any request to view the locus in quo. P
Q (2) Further and better particulars — Q
If, before 5:00 p.m. on Friday, 1 August 2003, the applicant
R R
receives a request for further and better particulars, from the
S director and/or the HKAA, concerning which parts of the HSL S
report the applicant intends to rely on and in relation to which
T T
grounds of its application for judicial review, the applicant
U U
V V
由此
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A A
shall respond with a high degree of particularity on or before
B B
Friday, 15 August 2003.
C C
(3) As this court has yet to determine the extent of the relevance
D of the HSL report to its tasks on judicial review, I shall reserve D
all issues of cost to be determined at the conclusion of the
E E
review itself.
F F
(4) No separate issues arise out of the affirmation of
Mr T. Maylor and the report from Mr Rostik. Pragmatism
G G
requires that no distinction is made between them. This
H decision applies to all three documents which are the subject H
matter of the application.
I I
J J
K K
L L
(M.P. Burrell)
Judge of the Court of First Instance
M M
High Court
N N
Mr Charles Haddon-Cave, QC, instructed by Messrs Simmons & Simmons,
O for the Applicant O
Mr Benjamin Yu, SC & Mr Anthony Ismail, instructed by
P P
the Secretary for Justice, for the Respondent
Q Ms Gladys Li, SC, instructed by Messrs Lovells, for the Interested Party Q
R R
S S
T T
U U
V V
SHIU WING STEEL LTD v. DIRECTOR OF ENVIRONMENTAL PROTECTION
由此
A A
HCAL184/2002
B B
IN THE HIGH COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
COURT OF FIRST INSTANCE
D D
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
E NO.184 OF 2002 E
F --------------------- F
BETWEEN
G G
SHIU WING STEEL LIMITED Applicant
H H
and
I I
DIRECTOR OF ENVIRONMENTAL PROTECTION Respondent
J AIRPORT AUTHORITY OF HONG KONG Interested Party J
----------------------
K K
Before : Hon Burrell J in Chambers
L L
Date of Hearing : 23 July 2003
M Date of Decision : 24 July 2003 M
N ---------------------- N
DECISION
----------------------
O O
1. This is an application by summons by Shiu Wing Steel, the
P P
applicant in a judicial review against the Director of Environmental
Q Protection (“the Director”) (and the Airport Authority of Hong Kong Q
(“HKAA”), as an interested party), for leave to re-amend its application for
R R
judicial review and to serve further evidence.
S S
2. The decision being challenged is that of the Director on
T T
28 August 2002 granting an Environmental Permit for the construction of a
U U
V V
由此
- 2 -
A A
permanent aviation fuel farm (“PAFF”) next to Shiu Wing Steel’s steel
B B
plant near Tuen Mun, New Territories.
C C
3. The relevant chronology is as follows :
D D
(a) On 13 July 2002, prior to the decision, the applicant wrote to
E E
the Director setting out its objections to the PAFF.
F (b) On 21 October 2002, after the decision, the applicant wrote to F
the Director and the Town Planning Board repeating its
G G
concerns and enclosing the “Mclnnis” report in support.
H (c) On 1 November 2002, the applicant filed for judicial review H
which was granted on 13 November 2002. The Mclnnis
I I
report was included in the application for leave.
J (d) On 5 February 2003, the Director filed its evidence in J
response which included a further report, the “Shell” report.
K K
(e) On 12 February 2003, the HKAA filed its evidence in
L
response which included a further report, the “AEA” report. L
M (f) On 30 May 2003, the applicant notified the Director and M
HKAA that it intended to make the application which is now
N N
before this court, namely to amend its application for leave
and file the following further evidence :
O O
(i) an “HSL” (Health & Safety Laboratory, UK) report in
P P
substitution for the Mclnnis report;
Q (ii) an affirmation from Mr T. Maylor, HSL’s chief Q
engineer; and
R R
(iii) a report from Mr L. Rostik, a steel expert.
S S
T T
U U
V V
由此
- 3 -
A A
4. The thrust of the objections is that the further evidence was
B B
not before the decision maker and, for the purposes of judicial review, it is
C therefore inadmissible and irrelevant and to admit it would be contrary to C
legal principles.
D D
E 5. Having heard counsel for the applicant, E
Mr Charles Haddon-Cave, QC, counsel for the Director,
F F
Mr Benjamin Yu, SC leading Mr Anthony Ismail and counsel for the
G HKAA, Ms Gladys Li, SC on 23 July 2003, I am persuaded by the G
cumulative effect of the following factors, that leave to amend should be
H H
granted and the evidence admitted de bene esse.
I I
Reasons :
J J
(1) Granting such leave is an exercise of the court’s discretion.
K The reasons which follow have weighed in favour of that K
discretion being exercised in the applicant’s favour.
L L
(2) The HSL report is not an additional report. It replaces the
M Mclnnis report. M
N
(3) The HSL report does not disagree with the Mclnnis report, it N
focuses on, reinforces and enlarges upon that part of the
O Mclnnis report upon which the applicant relies and has always O
relied.
P P
(4) The Mclnnis report, the Shell report and the AEA report all
Q themselves post-date the decision under challenge. Q
R
(5) The applicant’s case for judicial review has not altered. Its R
grounds remain the same. The decision being challenged is
S the same and the relief sought is the same. S
T T
U U
V V
由此
- 4 -
A A
(6) The effect of the HSL report should be to narrow the issues
B B
not widen them.
C C
(7) The prejudice to the Director and the HKAA, if any, is
D
minimal. It remains open to them to challenge the D
admissibility and relevance of the further evidence at the
E hearing. The parametres of judicial review proceedings are E
well defined and the court, at the hearing, will be better placed
F F
to decide whether any of the evidence falls outside those
G parametres. G
(8) The respondent’s and interested party’s concern that admitting
H H
the HSL report will cause the judicial review to “go off the
I rails” is misplaced. The court is aware of its task in these I
proceedings and will no doubt be reminded again by counsel
J J
at the hearing that the court is not so much concerned with the
correctness of the decision but with the way in which it was
K K
reached. The court will strive to keep it “on the rails” at all
L times. L
M
(9) Recent decisions suggest that post-decision material may be M
admissible where the applicant is complaining that the
N original inquiry was defective because it failed to consider N
important materials and facts which could have been elicited
O O
at the time. The HSL report falls into this category.
P (10) It is at least arguable that the contents of the HSL report are P
directly relevant to the challenges to the decision, as set out in
Q Q
the application.
R (11) In view of all the above matters, it is worth noting that the risk R
of an injustice, however remote, is greater if the application is
S S
refused than if it is granted. I acknowledge however that
T taken on its own and in isolation, this general comment would T
U U
V V
由此
- 5 -
A A
not provide sufficient reason for exercising the discretion in
B B
the applicant’s favour.
C C
D 6. I informed counsel that the court’s reasons would be brief. D
They are brief because the parties need to know the court’s decision as
E E
soon as possible, the judicial review itself being six weeks hence. All
F parties have expressed concern that the hearing will not be adjourned. F
G G
7. In this context, I make the following remarks and directions :
H H
(1) The hearing due to commence on 5 September 2003 —
I Any application to adjourn the hearing should be treated I
unsympathetically and only granted for exceptional and
J J
unforeseen reasons. If any party regards the five-day
K estimate as insufficient, it should inform the other parties and K
the court at least 21 days before 5 September 2003. The
L court will hear the judicial review to a conclusion should it L
overrun. It will not be adjourned part heard, again, unless
M M
exceptional and unforeseen reasons emerge.
N Given the court’s task in judicial review proceedings, I can N
see no grounds, at present, to allow witnesses to be called to
O O
give evidence, should any such application be made. Neither
P am I likely to accede to any request to view the locus in quo. P
Q (2) Further and better particulars — Q
If, before 5:00 p.m. on Friday, 1 August 2003, the applicant
R R
receives a request for further and better particulars, from the
S director and/or the HKAA, concerning which parts of the HSL S
report the applicant intends to rely on and in relation to which
T T
grounds of its application for judicial review, the applicant
U U
V V
由此
- 6 -
A A
shall respond with a high degree of particularity on or before
B B
Friday, 15 August 2003.
C C
(3) As this court has yet to determine the extent of the relevance
D of the HSL report to its tasks on judicial review, I shall reserve D
all issues of cost to be determined at the conclusion of the
E E
review itself.
F F
(4) No separate issues arise out of the affirmation of
Mr T. Maylor and the report from Mr Rostik. Pragmatism
G G
requires that no distinction is made between them. This
H decision applies to all three documents which are the subject H
matter of the application.
I I
J J
K K
L L
(M.P. Burrell)
Judge of the Court of First Instance
M M
High Court
N N
Mr Charles Haddon-Cave, QC, instructed by Messrs Simmons & Simmons,
O for the Applicant O
Mr Benjamin Yu, SC & Mr Anthony Ismail, instructed by
P P
the Secretary for Justice, for the Respondent
Q Ms Gladys Li, SC, instructed by Messrs Lovells, for the Interested Party Q
R R
S S
T T
U U
V V
HCAL184/2002 SHIU WING STEEL LTD v. DIRECTOR OF ENVIRONMENTAL PROTECTION - LawHero