HKCFI 1946
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 OF 2023
||HONG KONG GOLF CLUB
||DIRECTOR OF ENVIRONMENTAL PROTECTION
||GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION, BY THE CIVIL ENGINEERING AND DEVELOPMENT DEPARTMENT
||Hon Coleman J in Court
|Date of Hearing:
||17 August 2023
|Date of Decision:
||24 August 2023
D E C I S I O N
1. In 2019, an environmental impact assessment (“EIA”) study brief (“Study Brief”) was issued under section 5(1)(a) of the Environmental Impact Assessment Ordinance Cap 499 (“EIAO”), relating to a proposed housing development (“Project”) on a 32 ha site, being land held by the Fanling Golf Club (“FGC”) and comprising part of the ‘Old Course’, operated by the Hong Kong Golf Club (“Club”). The project proponent is the Civil Engineering and Development Department (“CEDD”).
2. The statutory process continued up to and including May 2023, including generation of the Environmental Impact Assessment Report (“EIA Report”) finalised in May 2022 – though it was then subject to further queries and provision of information.
3. By letter dated 11 May 2023 (“Decision”), issued expressly pursuant to section 8(3) of the EIAO, the Director of Environmental Protection (“DEP”) approved the EIA Report, though subject to certain annexed conditions (“Conditions”). The Conditions include the requirement that the CEDD perform a review of the project (“CEDD Review”).
4. The Decision is the subject of the application for judicial review made by the Club in these proceedings, for which I gave leave on 25 July 2023.
5. The Club applied for an interim stay of the Decision, pending the determination of the substantive application for judicial review (“JR Application”), since fixed to be heard over three days commencing 9 May 2024 (though it may be that earlier dates will be found).
6. The DEP, as respondent to the proceedings, opposes the interim stay.
7. The interim stay application was heard by me on 17 August 2023. At the hearing, the Club was represented by Mr Benjamin Yu SC leading Mr Timothy Parker, and the DEP was represented by Mr Rimsky Yuen SC leading Mr Martin Ho. The attendance of the CEDD, as interested party remaining neutral, was excused.
8. During the hearing, Mr Yuen offered an undertaking which might he suggested might be accepted in lieu of the grant of an interim stay. However, the undertaking was not acceptable to Mr Yu. Nor, as it happens, would it have been acceptable to the Court. Therefore, the matter was fully argued.
9. At the end of the hearing, I reserved my decision. However, I continued until my decision the ‘interim interim’ stay granted by me at the same time as I granted leave to apply for judicial review.
10. This is my Decision.
B. Applicable Legal Principles
11. Before turning to the evidence filed for this application, and to the competing submissions, it is helpful to identify the principles applicable to an application for the grant of interim relief or an interim stay in judicial review proceedings. Save as to one matter, where there is a dispute which I think will be immaterial for present purposes, the principles are well-settled and common ground between the parties.
12. The interim stay sought by the Club is directed at, and would have the effect of suspending the operation of the Decision, and temporarily to treat it as being of no effect. The intention is to preserve the status quo, and thereby aid the judicial review process and make it more effective by ensuring, as far as possible, that if a party is ultimately successful in his challenge he will not be denied the full benefit of his success: see, for example, R (H) v Ashworth Hospital Authority  1 WLR 127 at §§42 and 47.
13. Both Mr Yu and Mr Yuen made reference to the summary of the principles given by Chow J (as Chow JA then was) in Re Leung Chung Hang Sixtus  5 HKC 138 at §§12-14. They can be referred to in full. But, in essence, the well-known American Cyanamid principles are applicable, subject to necessary modifications to take account of the public law context.
14. The American Cyanamid principles require the Court to consider (1) whether there is a serious issue to be tried, (2) whether damages would be an adequate remedy, and (3) whether the balance of convenience favours the grant or refusal of the interim relief sought.
15. In the public law context, the relevance of damages as an alternative remedy will vary depending on the nature of the decision under challenge, though that does not mean that financial consequences are to be ignored. However, in cases involving the public interest, for example where a party is a public body performing public duties, the decision to grant or withhold interim injunctive relief will usually be made not on the basis of adequacy of damages but on the balance of convenience test.
16. Further, when assessing the balance of convenience in the public law context, the court takes a wider view than just the interests of the immediate parties to the application, and must take into account the public interest in the balancing exercise. The degree of importance that may be attached to the element of public interest would depend on the nature of the decision under challenge.
17. Ultimately, the test requires the court to take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense of granting an injunction to a party who fails to establish his right at the trial or substantive hearing (or would fail if there was a trial or substantive hearing), or alternatively in failing to grant an injunction to a party who succeeds (or who would succeed) at the trial or substantive hearing.
18. The possible area of difference between Mr Yu and Mr Yuen was as to the appropriate merits threshold to apply. I think it was common ground between them that, simply because I have granted leave to apply for judicial review, that does not of itself identify that the necessary merits threshold has been met for the purposes of the grant of interim relief. But, the difference is where the proper threshold lies.
19. The authorities identify that where an injunction is sought to restrain a government authority from enforcing what is prima facie the law of the land, the applicant normally has to show a strong prima facie case that the law is invalid (although, exceptionally, the applicant may suffer such serious and irreparable harm in the event of the law being enforced against him that it is just and convenient to restrain any enforcement action even though this higher threshold is not met). On the basis that this is not a case in that category, Mr Yu submits that the higher threshold does not apply.
20. On the other hand, Mr Yuen says that it does. He submits that the courts should normally refuse to grant a stay unless satisfied there is a strong, and not merely arguable, case that the impugned decision was unlawful. By reference to R (on the application of Hussain) v Secretary of State for Health & Social Care  EWCH 1392 (Admin) at §9, and R (on the application of Medical Justice) v Secretary of State for the Home Department  EWHC 1425 (Admin) at §6, Mr Yuen submits that the Club must first show a real prospect that at the substantive hearing it will succeed in obtaining substantive relief, taking account of the fact that any decision to grant such relief would include consideration of the public interest. If the required real prospect exists, the next issue is whether or not the balance of convenience favours the grant of relief.
21. However, I note that in the Medical Justice case, the concept of ‘real prospect of succeeding at trial’ was equated with being ‘something more than fanciful prospect of success’. The concept was also thought to state the same test as ‘whether the action was not frivolous or vexatious’ and ‘whether there is a serious question to be tried’.
22. More helpful is the comment made in R (The Governing Body of X) v Office for Standards in Education, Children’s Services and Skills  EWCA Civ 594 at §66, where Lindblom LJ recognised that there is support at first instance for the proposition that, in a public law claim, the court will generally be reluctant to grant interim relief in the absence of a ‘strong prima facie case’ to justify the granting of an interim injunction. But he went on to state that the relevant case law does not support that concept being deployed as a ‘threshold’ or ‘gateway’ test, but rather that the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations when deciding for or against the granting of an injunction.
23. That seems to me to be the correct approach, and I shall respectfully adopt it. Whether properly reviewed by reference to a ‘threshold’ or ‘gateway’ test, the underlying strength of the substantive challenge is likely to be a significant factor in the balance of considerations when deciding for or against the granting of an injunction or a stay.
24. On the basis that part of Mr Yuen’s argument turned on the suggestion that these proceedings are ‘academic’, it may be helpful to identify what an academic claim is. Mr Yuen pointed to authority that emphasised that an academic claim is a claim where there was once, but...