CHUNG YING KWAI v. TSUEN WAN RURAL COMMITTEE AND ANOTHER

HCAL002485/2000

HCAL2485/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW
LIST NO.2485 OF 2000

—————————–

BETWEEN
CHUNG YING KWAI Applicant
AND
TSUEN WAN RURAL COMMITTEE 1st Respondent
SECRETARY FOR HOME AFFAIRS 2nd Respondent

—————————

Coram: Hon Cheung J in Court

Date of hearing: 6 February 2001

Date of decision: 6 February 2001

———————

D E C I S I O N

———————

1. The parties attended before me today on a summons issued by the applicant. The applicant asked for the following relief :

(1) the summons dated 21 December 2000 issued by the 2nd respondent be dismissed;

(2) alternatively, the summons be refixed to an earlier date;

(3) leave to the applicant to issue the notice of motion within 14 days; and

(4) further direction as the court may give.

2. The orders I had made were to dismiss the summons of 21 December 2000 and granted leave to the applicant to serve and file the noticeof motion within three days.

3. This is a matter concerning the election of village representatives in the New Territories. On 30 November 2000, I granted leaveto the applicant to commence judicial review against the respondents but stayed the application until the Court of Final Appeal hadrendered its decision in two similar cases. The Court of Final Appeal delivered its decision on 23 December 2000. Two days beforethe decision, on 21 December 2000, the 2nd respondent, issued a summons, without any supporting affidavit, asking for an order thatmy earlier order granting leave be set aside. The hearing of that summons is fixed for 4 May 2001. The basis for setting aside myearlier order is, according to the summons, “on the evidence to be filed by the 2nd respondent herein, the undue delay on the partof the applicant in applying for leave for judicial review is detrimental to good administration”.

4. Although Ms Fung, counsel for the 2nd respondent, claimed that an agreement had been reached with Mr Yam, counsel for the applicant,that today’s hearing was for the purpose of obtaining directions only, this was disputed by Mr Yam. In the absence of a clear agreementto seek directions only, the applicant was entitled to proceed on the summons today. An oral hearing was granted for the applicationfor leave. The 2nd respondent was represented by counsel at that hearing, in which I had specially asked the parties to address meon the question of delay in bringing the application. Irrespective of the nature of that hearing, i.e. whether it was an ex parte or an inter parte hearing, the fact is that counsel for the 2nd respondent had made submission on the questions of delay in bringing the proceedingsand prejudice to the Administration. Furthermore, these issues can clearly be raised again when the judicial review is heard. Untilnow, no affidavit has been filed for the summons to set aside my earlier order. Judicial review should be dealt with as quickly aspossible. To wait until May 2001 or relist the hearing date of the summons to an earlier date would only cause further delay in thismatter. The appropriate orders that should be made were the ones that I had given.

(P. Cheung)
Judge of the Court of First Instance,
High Court

Representation:

Mr Stephen Yam, instructed by Messrs Littlewoods, for the Applicant

Ms Jenny Fung, SGC of Department of Justice, for the 2nd Respondent

1st Respondent, in person, absent