Lee Wan Wo v. The Director of Lands

HCAL 175/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 175 OF 2015

______________

______________

______________

______________

D E C I S I O N

______________

INTRODUCTION

1.This application for leave to apply for judicial review was commenced in August 2015.  Two decisions are under challenge:

(a)   the decision of the Director of Lands (“the Director”) dated 14 December 2009 (“the Director’s revision decision”);

(b)   the Director’s decision dated 13 June 2014 (“the Director’s 2014 decision”).

2.The Director’s revision decision in effect revised the departmental guidance concerning the approval of applications to build “small houses” in the New Territories.  The Director’s 2014 decision concerns the rejection of the applicant’s appeal against an earlier administrative decision to reject the applicant’s objection to such a “small house” application.

BACKGROUND

3.The “Small House Policy” (“SHP”) first appeared in the early 1970s and was implemented since then.  In gist, SHP allows a male indigenous villager to apply for permission to build a “small house” for himself on a suitable site.  Various relevant terms, such as “indigenous villager” and “recognized village”, have been defined by Government for such purpose.

4.Before September 2007, applications for SHP grants were handled by the District Lands office (“DLO”) in accordance with (among other things) the following departmental guidance:

“An application for a small house site outside the applicant’s own Heung will not be considered, unless he can prove to the satisfaction of the District Lands Officer that his ancestor has already settled in the new Heung under application, and there is no local objections to his application” (emphasis supplied)

(2001 handbook published by the Lands Department)

5.The above departmental guidance has been revised (that is, the Director’s revision decision, being part of the applicant’s complaint in this application).  The time of the Director’s revision decision is in dispute: the Director’s case is that it was made in 2007 while the applicant’s case is that it was made in December 2009 (but only made known to the applicant in 2014).

6.The Director’s revision decision has been mentioned in the following documents (adduced by the parties in this application):

(1)   a consultation paper of March 2005 to Heung Yee Kuk proposing the Director’s revision;

(2)   a letter of March 2007 from the Heung Yee Kuk accepting the proposal in principle;

(3)   an internal memo of the Lands Department dated 30 August 2007;

(4)   a handbook (or leaflet) published by the Lands Department in 2009 (according to the Director, the handbook was made available to the Heung Yee Kuk and the public in 2009, but the applicant deposed that he only became aware of it in 2014). 

In effect, the revised guidance is that, where there is local objection to the application for “cross-village” or “moved and settled” SHP grant, it is for the DLO to decide whether to approve the application.

7.The applications for SHP grant giving rise to this application came from individuals surnamed Wong who (and whose ancestors) also resided in the same village as the applicant (and other objectors to the applications) (“the subject village”):

(a)   the first of such applications was made in 1997 but it was refused on the ground that the applicant therein was not an indigenous villager;

(b)   another application made in 2008 was also rejected by the DLO on the grounds that the applicant therein was not an indigenous villager and the application was opposed by some indigenous villagers;

(c)   two other such applications were made in 2008 but were withdrawn when the present applicant opposed them;

(d)   similar applications were made in 2011 and were opposed by the applicant herein.  The DLO convened some meetings for them to be discussed.  In a letter dated 29 May 2014 the DLO rejected the applicant’s objection to the applications;

(e)   the applicant requested for a time extension to appeal to the Director against the DLO’s rejection of his objection (the appeal was finally made in the applicant’s letter of 23 June 2014 (this was joined by letters from more than 50 indigenous villagers));

(f)    from about May 2014 to about March 2015 the applicant sought information about the Director’s revision decision, and complained about the earlier lack of knowledge of the same;

(g)   by a letter dated 27 May 2015 to the applicant, the Director rejected the appeal.

8.Further to the above, the applicant also refers to village meetings held in 1999 and 2013.  Where necessary, these meetings will be mentioned in the paragraphs below.

GROUNDS OF THIS APPLICATION

9.The following grounds have been put forth in the Form 86:

(1)   the Director’s revision decision was unlawful in that there had been no or no proper consultation before it was made;

(2)   failure to recognize and/or to take into account the applicant’s legitimate expectation that objections to “cross village” or “moved and settled” category SHP grants cannot be rejected by the DLO;

(3)   the Director’s 2014 decision was unlawful in that relevant matters had not been taken into account (the applicant (and other objectors) were unaware of the Director’s revision decision; the village meeting resolutions were not unanimously passed, and objections had been raised).  Alternatively, if the Director had taken the above matters into account, she had given inadequate reasons for her decision.

10.These grounds will be discussed below.  The Director’s further ground of objection to this application, based on delay on the applicant’s part, will also be discussed below.

(1)   Lack of proper consultation

11.I agree with the Director that there is no inflexible legal principle that there must be consultation before any change in government policy can be effected: R (BAPIO Action Ltd) v Home Secretary [2007] EWCA Civ 1139, para 41 to 47.  It is a matter of discretion on the part of the government, and if there is any limit to that discretion, it would be the concept of fairness in balancing between the interests of an adversely affected class and the entitlement of executive government to formulate and reformulate policies: the BAPIO decision, para 43.

12.The Director argues that the pre-2007 SHP departmental guidance never conferred upon the applicant (or anyone adopting the same stance) what in essence is a right to veto “cross village” or “moved and settled” category SHP applications.  Bearing in mind this application only seeks leave to apply for judicial review (the test for granting leave being reasonable arguability), I will proceed on the basis that the earlier policy did confer such right, and the Director’s revision decision has the effect of removing, or at least diminishing, such right.

13.With the above in mind, the following matters appear to be of importance to the exercise of that discretion:

(a)   the complaint of no consultation is unfounded because there has in fact been consultation.  A consultation paper proposing the Director’s revision decision was given to Heung Yee Kuk to seek its view, and the Heung Yee Kuk responded favourably.  What the applicant (and anyone adopting a similar stance) is really complaining is that the consultation ought to have involved all individuals who may be affected; that is, all indigenous villagers;

(b)   Heung Yee Kuk (and the representatives constituting the Heung Yee Kuk) is a statutory body set up expressly “[to] provide for the establishment and functions of an advisory and consultative body for the New Territories and for purposes connected therewith” (Heung Yee Kuk Ordinance (Cap 1097), long title);

(c)   the full council of Heung Yee Kuk is constituted by elected representatives (Cap 1097, s 3; Rural Representative Election Ordinance (Cap 576), especially Part 2, ss 13 and 61);

(d)   the Director’s revision decision was about a matter of policy concerning SHP grants to all indigenous villagers in the “cross village” or “moved and settled” category, and not a matter personal to the applicant;

(e)   there is no suggestion Heung Yee Kuk has acted unlawfully or unreasonably during the consultation;

(f)   it may be impracticable to require the Director to directly consult all individuals concerned (the applicant deposed that some of them reside elsewhere in Hong Kong, or even overseas);

(g)   the Director’s revision decision does not by itself remove any of the applicant’s rights under SHP, but may at most have the longer term effect of increasing the number of potential SHP applicants for grants at indigenous villages (including the subject village).

14.Where the matter is one concerning policy of wide geographical and demographical coverage, and there is a statutorily created institution for consultation regarding such kind of matter, the decision maker cannot be faulted for exercising his discretion to limit the consultation process to that institution before effecting a policy change. This is particularly so where the institution is constituted of representatives elected by members of the class who may legitimately claim to be affected in some way by the policy change.

15.This is of particular importance to SHP because, as the Director correctly points out, the demand for “small houses” is ever increasing (with the increase in local population) while the supply of land for such purpose is finite.  With the change in the local circumstances (especially with regard to more and more of the “urban” population residing in the New Territories) during the past few decades in mind, the government must be left with a high degree of latitude to deal with what essentially is a social issue.

16.The applicant’s assertion that there is fear of violence for attending village meetings is rejected:

(1)   it is nothing more than an assertion, and can quite adequately be addressed by seeking assistance from the authorities if the need should arise;

(2)   in any event, if the assertion is that anyone who dissents from the decision of the rural committee (by raising objection) may be subject to violence, it is not immediately clear how such fear can be lessened even under the pre-2007 departmental guidance.

17.Consequently, I find that this ground has no merit.

(2)   Legitimate expectation

18.The precise basis of this ground is difficult to understand.  According to the Director’s revision decision, a 3-tier approach is adopted:

(a)   an applicant for SHP grant will liaise with any objector to resolve their differences (this may take place inter partes or with the assistance of rural representatives at village meetings);

(b)   if the dispute cannot be so resolved, it will be handled at DLO meetings where the parties would be invited to speak;

(c)   if there is still no consensus, the DLO will determine the matter in the light of the foregoing.

19.Thus, even after the Director’s revision decision, the views of any objector will not be totally ignored by the DLO or the Director.

20.In this connection, after the village meeting held in 2013 (where the applicant and others have already raised their objections in writing), the applicant met with the DLO in January 2014 at the latter’s invitation (where the applicant raised his objection verbally). Judging from such sequence of events, the DLO (and hence the Director) must have taken the applicant’s view into account when making the Director’s 2014 decision.

21.Insofar as the applicant may be arguing that his legitimate expectation that the resolution reached at the village meetings should not be relied upon, and the pre-2007 SHP departmental guidance ought to be adhered to, there is no substance in the argument because of the conclusion reached in relation to the earlier grounds.  Insofar as he may be arguing that his legitimate expectation lies in the continuation of the pre-2007 SHP departmental guidance, this is nothing more than a rehash of the earlier ground (which has already been discussed and will not be repeated here).

22.There is a hint that the applicant’s failure to personally attend the 2013 meeting (but merely stated his objections in writing) is itself an irregularity.  This has no merit because a village meeting is not in the nature of an adversarial process (where, for example, opposing parties would be entitled to test the other side’s case).

23.Accordingly, there is no substance in this ground either.

(3)   Failure to consider matters/adequacy of reasons

24.As the Director correctly points out, before making the Director’s 2014 decision, the DLO (and the Director) was fully aware of the objections raised by the applicant (and others) (see, for example, the DLO meeting minutes dated 14 April 2014, the DLO’s letters dated 29 May 2014 and 13 June 2014, and the review committee’s minutes dated 5 February 2015).  It is totally within the discretionary power of the Director, being the decision-maker in question, to decide whether to accept the objections or to reject them.

25.Reasons were in fact given by the DLO (see the letters referred to in para 24 above) and in the Director’s letter dated 27 May 2015.  The applicant has not specify where reasons are lacking, and how such lack of reasons has prejudiced him.

26.This ground is therefore not reasonably arguable.

(4)   Delay

27.Even on the applicant’s own case, this application was only made more than a year after the latest executive decision (in June 2014).  On the Director’s case, the Director’s revision decision was placed in the public domain as early as in late 2009.

28.In relation to the Director’s revision decision, I therefore agree with the Director that there has been undue delay on the applicant’s part to commence this application.

CONCLUSION

29.This application is refused.

OTHER MATTERS

30.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

31.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application are to be paid by the applicant to the Director, to be taxed if not agreed.

Mr Newman Lam, instructed by Dickman L T Chan & Co, for the applicant

Mr Anthony Chan, instructed by Department of Justice, for the putative respondent