LEGISLATIVE COUNCIL PANEL ON TRANSPORT
Improvement to Tuen Mun Road
Purpose
This paper provides supplementary information on -
- Governments reasons for not disclosing the Mediators Decision at this time and the principle of sub judice; and
- the tentative schedule for completion of the remaining works at the Tai Lam section.
Background
2. At the meeting of the Transport Panel held on 29 November 1996, Members, after considering the information paper (Ref: CB(1)386/96-97(08)), decided to further discuss the captioned subject at the next Panel meeting on 13 December 1996, and requested further supplementary information.
Legal Considerations
3. The purpose of this note is to explain in more detail the Governments reasons for not disclosing the Mediators Decision (Adjudication) at this time. We emphasise the phrase "at this time" because it is intended to disclose this document publicly at a later date.
4. The Government has no wish to enter into unnecessary dispute with LegCo over this matter and, indeed there is no dispute in principle concerning public disclosure of the requested information, it is merely a question of timing. The Government is concerned to ensure that the legitimate interests of all parties concerned are protected while a judicial inquiry is still pending.
5. The Government itself has no objection to disclosure of this Decision at the appropriate time and has already advised the Contractor that it considers the public disclosure of this information in due course to be right and proper. The Contractor in turn has confirmed that he consents to disclosure of the decision to the LegCo Transport Panel once the forthcoming Inquest proceedings are completed.
The Contractors right to confidentiality
6. The Decision came into being as a result of a private dispute resolution procedure adopted by the parties under a commercial Contract. Under normal mediation principles, such proceedings are confidential to the parties concerned. The Contract contains an express provision of confidentiality binding on these parties. In accordance with this provision, confidential documents relating to the Contract can only be employed for the stated purposes of the Contract. It follows that confidential documents cannot be disclosed to outside parties without the consent of both parties. Unilateral disclosure without the consent of the other party will constitute a breach of contract. The Hong Kong Government honours the provisions of its Contracts.
7. The Contractor has advised the Government that he does not consent to public disclosure and debate of the decision at this time pending completion of the Coroners Inquest scheduled to take place on this matter in the near future. The Inquest was previously scheduled to take place in September 1996 and has now been adjourned to early March 1997. The Government has no control over the timing of this hearing which is entirely a matter for the Judiciary to determine. The Contractor has confirmed that he has no objection to disclosure of the Decision after the Inquest is completed. In any event, both Government and the Contractor have agreed that the Decision should be disclosed to the Coroner prior to the hearing and it will therefore be in evidence at the Inquest. Accordingly, there is no intention to withhold the public disclosure of this information by either party. It is purely a question of the appropriate timing and forum for disclosure.
The Coroners Inquest and the principle of "sub judice"
8. The purpose of the principle of sub judice is to limit public comment or disclosure relating to matters which are the subject of judicial proceedings, in order not to prejudice the issue or influence the jury.
9. In mid 1996, the Coroner confirmed his intention to hold an Inquest in this matter. This judicial investigation, which is for the purpose of ascertaining the cause of the fatal accident and making appropriate recommendations, was originally scheduled for September 1996 but was subsequently postponed to March 1997. There is no reason to anticipate any further postponement. However, as noted above, the Government has no control over the precise timing of the Inquest hearing. For present purposes, it is sufficient that a formal Inquest is pending and imminent.
10. The Coroner has extensive investigatory powers in these matters. He may sit alone or with a jury. He will hear the evidence at the Inquest hearing in a judicial and objective manner and make appropriate findings and recommendations. His powers include the power to recommend the preferment of manslaughter charges. In short, he will conduct an intensive and impartial investigation into the causes of the accident.
11. The Contractor and Sub contractors among others will be interested parties at these proceedings and will be providing detailed evidence to the Coroner to assist him in his investigation. This evidence will include the Mediators Decision. As a concerned party, the Contractor has a legitimate interest in preserving his rights in advance of the Inquest hearing and in so doing he has requested that confidentiality of the Decision be maintained pending the Inquest. This is a reasonable request in the circumstances as there is inevitably a substantial overlap between the matters considered in the adjudication of the Contractors claim to impossibility and the matters to be investigated by the Coroner, both of which are investigating the same factual circumstances albeit for different purposes.
12. In these circumstances, the Government is of the opinion that the matter is sub judice and that it is not appropriate to engage in public disclosure and discussion of the Mediators Decision and the matters which are likely to be comprised in the forthcoming Coroners Inquest at this time. The Government takes this view irrespective of whether or not the matter is technically sub judice. In this context, the Government has been advised by leading counsel that such action could give rise to possible contempt of court having regard to the inevitable media publicity which would ensue. There is no question of withholding information from the public, as the whole matter will be the subject of a public investigation in the Coroners Court in the near future in any event.
Civil proceedings for damages
13. The Government and the Contractor have been notified of pending civil proceedings for damages against them arising from the accident on behalf of the family of the bereaved. The Honourable Albert HO Chun-yan, a Member of the Transport Panel, has declared a personal interest in these proceedings as solicitor for the Plaintiff. The Defendants interests in this matter are insured and they are jointly represented by solicitors acting for the insurers. This claim is still pending.
14. At previous meetings of this Panel, specific questions have been put to the Governments representatives concerning issues of negligence and wrongdoing. Such questioning detracts from the normal rights afforded on these matters under judicial procedures and is contrary to LegCo Standing Orders. Further, any public admission on these matters without the insurers consent and agreement could prejudice the Governments insurance position in respect of the pending proceedings.
Other cases
15. Mention has been made of other cases in which matters have been debated in LegCo while legal proceedings were still pending. Clearly, if this issue was not raised in previous cases it would not have given rise to any cause for concern. Equally, because something has been done in the past in the particular circumstances of a different case, it does not follow that it is appropriate to follow that procedure in the circumstances of the present case.
16. As regards the Alex Tsui case, there were no pending legal proceedings concerning Mr Tsuis dismissal from the ICAC which would have been affected by the LegCo Inquiry in that matter.
17. As regards the Kwun Lung Lau case, it is correct that a LegCo Select Committee was appointed and had commenced its hearings in November 1994, prior to the hearing of the Coroners Inquest in early December 1994, but the Select Committee Inquiry was not completed and its Report was not published until July 1995 some seven months after the Coroners Inquest was completed. It is also relevant that Professor Morgensterns Report in that case was prepared for the express purpose of publication from the outset. No question of breach of confidentiality was involved in the disclosure of his Report. Even then, he still gave his evidence to the Coroners Inquest first before appearing as a witness before the Select Committee.
18. It follows that neither of these cases operates as a precedent for public disclosure of information in advance of pending judicial proceedings where an interested party having a proprietary right in that information has expressly objected to such disclosure.
Tentative Schedule for Completion of Remaining Works at the Tai Lam Section
19. We embarked on a feasibility study in end October 1996 to look into ways of completing the remaining works at the Tai Lam Section. One of the principal options to be studied involves local realignment of Tuen Mun Road towards the sea to avoid rock slopes cutting. The study will also investigate options involving closing one or more lanes after the Route 3 is open, to provide a buffer zone for safe execution of the slope works. We anticipate to complete the study in end April next year. Subject to the findings of the feasibility study and consultation with the District Boards on the proposed scheme, the tentative programme for the remaining works at Tai Lam, assuming no re-gazetting is required, is as follows -
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Completion of Feasibility Study
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4/97
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District Board Consultation
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5/97
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Consultant Selection
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5/97 - 8/97
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Design
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9/97 - 2/98
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Tendering
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3/98 - 6/98
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Construction
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7/98 - 12/99 |
20. It should be noted that if the proposed scheme requires gazetting, additional time will be necessary for the gazetting of the scheme, resolution of objections and authorisation of the scheme by Executive Council. The completion of works may have to be extended from end 1999 to end 2000, depending on the number and complexity of the objections.
21. As regards the requests for further information concerning the scope of current claims under the contract, the contractual provisions relating to safety measures and comparison of those measures with other contracts such as those drawn up by the Buildings Department on works of a similar nature, the public disclosure of this information at the present time is also affected by the same considerations affecting disclosure of the Mediators Decision referred to above, namely confidentiality and a pending judicial inquiry.
22. For information, the Buildings Department does not administer works of a similar nature and the particular highway works involved in the Tuen Mun Road Improvements Contract involved unique technical complications due to the requirement to keep the highway open during the progress of the works. Accordingly, the Tuen Mun Road Improvements Contract cannot be compared with other contracts in a meaningful way.
23. As regards the scope of current claims, this is an ongoing commercial contract and, in common with most contracts of this type, there are a number of outstanding claims which have still to be determined. Claims in this context does not equate with entitlement to payment. The majority of these claims relate to routine matters arising during the progress of the works and the remainder relate to additional works carried out by the Contractor in connection with the disputed sections of the works. The Government in turn will be seeking appropriate adjustments of the contract sum in respect of the uncompleted portion of the works. Full details of some of these claims have still to be submitted. The documentation relating to these claims is subject to an express confidentiality provision in the contract. The Government cannot unilaterally breach the provisions of its own contract to make public disclosure of confidential commercially sensitive information in the course of the contract at the behest of LegCo.
24. All of the outstanding claims require to be assessed and determined by the Supervising Officer in accordance with the appropriate contract procedures and, in the event that either party is unsatisfied with the outcome, these matters may be referred to further mediation or arbitration at a later date in accordance with the contract provisions. These contractual procedures require to be implemented in full in order to determine the parties respective rights under the contract. The Government cannot permit external agencies to intervene in the administration of its ongoing commercial contracts. These issues must be resolved in accordance with the specified contract procedures.
25. As regards the request for further information concerning the safety provisions, this is a matter in which the key documentation is subject to the same express confidentiality provision contained in the contract and which will be the subject of detailed consideration at the forthcoming Coroners Inquest proceedings.
Attorney Generals Chambers/Highways Department
December 1996
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