Peter Anthony Reid and Another v. The Environment Bureau

HCAL 90/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 90 OF 2016

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D E C I S I O N

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1.This is an application for leave to apply for judicial review by the two applicants who seek to challenge the handling of waste management in Hong Kong by the relevant responsible persons and authorities. They act in person, and on 16 May 2016, they filed a homemade and handwritten Form 86. It was filed together with a joint affirmation from the applicants in which they adopted as the basis of the application an attached statement together with annexures. Further material was submitted by way of letter dated 14 July 2016.

2.Unfortunately, the papers were in a confused and disorganised state, and it was difficult to glean the nature and basis of the application.  The proposed respondent was named as the Environment Bureau of the Environmental Protection Department (Environment Bureau) of the Hong Kong Special Administrative Region Government (HKSARG).  The applicants listed as proposed interested parties, Leonardo DiCaprio, the Leonardo DiCaprio Foundation, Harrison Ford, James Cameron, Al Gore, Clean Air Network, Stephen Hawking, Michael Bloomberg, Jack Ma and Alibaba Group Holding Ltd.  The nature of the decision or decisions for which relief was sought referred to the attached statement to the joint affirmation of the applicants.  This statement consisted of a lengthy and rambling narrative that was difficult to follow but seemed to complain in very broad terms about the failure of the HKSARG to conduct its public administration properly and honestly in relation to the disposal of waste by landfill. 

3.As I will discuss later, it was unclear what decisions or actions were being challenged by the applicants in accordance with public law principles. 

4.On 1 September 2016, this Court issued a direction to the applicants bringing to their attention the unsatisfactory state of the application and their failure to sufficiently specify and address the fundamental basis for the judicial review challenge. The applicants were also informed that an oral hearing had been fixed as requested by them pursuant to Order 53, rule 3(3) of the Rules of the High Court, Cap 4A, to hear argument from them in relation to the leave application.  Directions were given for the filing of a written submission and a hearing bundle.  Unfortunately, the papers filed by the applicants for the oral hearing were in much the same state as the papers previously filed by them.

5.At the oral hearing on 13 October 2016, only the 1^st applicant appeared.  He acknowledged that the papers were in unsatisfactory state but requested an adjournment so that he could obtain legal advice.  Accordingly, the hearing was adjourned to 19 November 2016 to enable the applicants to have the benefit of legal assistance.  Prior to the adjourned hearing date, the applicants requested more time to arrange legal representation.  The hearing was further adjourned to 15 December 2016.  At that hearing, the 1^st applicant explained that legal representation was being arranged, and requested further time.  On that basis, an adjournment was granted on 2 February 2017.  At the adjourned hearing, the 1^st applicant again appeared without legal representation.  He acknowledged that other avenues had been pursued in relation to this matter and that in the circumstances the application would be withdrawn.  However, he later submitted a written submission dated 1 March 2017 that is best described as a general tirade against the handling of waste management in Hong Kong, in particular the failure to implement existing waste management policies and to develop new ones to address current problems and trends. 

6.From the papers filed, the applicants generally complained that the Environment Bureau and the HKSARG have been acting illegally, irrationally and in breach of procedural impropriety in relation to various decisions concerning the management of waste in Hong Kong.  They argued that the HKSARG has a duty to act and make policies according to law which they said had not been done.  They claimed that the HKSARG had committed massive and systemic wrongdoings by making the decisions to develop (1) the Integrated Waste Management Facility Phase 1; (2) the Southeast New Territories Landfill Extension; (3) the Northeast New Territories Landfill Extension; (4) the West New Territories Landfill Extension; and (5) the Organic Waste Treatment Facility Phase 1.  They said that according to established and accepted methods they calculated that the harm and damage to the public interest that resulted from such wrongdoings was in a sum upwards of HK$2.8 trillion.  They did not explain how this calculation was made. 

7.As best I can from the material filed by the applicants, I will endeavour to explain the nature of their challenge.  They point to the HKSARG’s policy and action plan in 2005 to reduce the quantity of Municipal Solid Waste (MSW) for landfill disposal from 60% to 25% by 2013.  They claimed that rather than achieving a substantial reduction in the disposal of waste by landfill, a slight increase in fact took place.  They pointed out that the actual amount of MSW sent to landfills increased from 60% to 63% by 2013 and 2014.  This they argued showed that the Environment Bureau had failed to carry out its function to achieve the goal set in 2005. They said that this was supported by the reports from the Director of Audit (27 October 2015) and the Public Accounts Committee (11 February 2016).  They further pointed out, as stated in these reports, that the information and figures provided by the public bodies concerned were shown to be inaccurate and did not reveal the true extent of the problem.  The Public Accounts Committee in its report concluded that the treatment and disposal of MSW was “appalling and inexcusable”.

8.The relief sought is a series of general demands and requests.  They do not fall within the range of legal remedies that are available within the judicial review jurisdiction. They request that the HKSARG implement its 2005 policy and action plans, terminate the employment of secretariat and directorate grade staff and take legal action against supervisory officers; appoint an independent environmental consultant to head the Environment Bureau; and conduct an investigation and inquiry into the mishandling of waste management in Hong Kong. 

9.The applicants also seek court orders to quash a list of Waste Project decisions and Environmental Permits that were variously approved in late 2014 and early 2015.  These are all decision that are well outside the prescribed time period to mount a judicial review challenge.  Other court orders are also sought that seek general censure of the HKSARG over its handling and alleged failures in relation to waste management. 

10.The kernel of this application is the HKSARG’s failure to reduce as designated in its 2005 policy the quantity of waste for landfill disposal.  It has been the subject of reports by the Director of Audit and the Public Accounts Committee. 

11.As is well recognised, judicial review is the means by which the Court of First Instance exercises its general supervisory jurisdiction over inferior courts, tribunals and other bodies performing public functions.  In general terms, the nature and scope of the judicial review jurisdiction is largely defined by the relief that a court may grant.  The court on review is required to check the exercise of the public function that either has no lawful basis or has a lawful basis but has been exercised unfairly or unreasonably.  It will not review the merits of a decision or attempt itself to perform the task that has been entrusted to the public authority by law. 

12.Whilst the judicial review jurisdiction is an important means by which the citizen can bring to bear judicial scrutiny over the exercise of public functions or responsibilities, it is incumbent on an applicant to follow the requirements and procedures as laid down in the legislative and administrative framework in seeking redress under this jurisdiction.  In the present case, the decisions or actions sought to be challenged by the applicants were well outside the prescribed time period, and the applicants did not in any satisfactory manner articulate the public law wrongs that were alleged to have been committed.  The content of the application was general dissatisfaction with the implementation and development of government policy in relation to waste management which has been the subject of investigations and reports from the Director of Audit and the Public Accounts Committee respectively.  This was an inappropriate attempt to invoke the judicial review jurisdiction where little if any effort was made to address the legal requirements and issues. 

13.Notwithstanding the subject matter of waste management is an important issue of policy, the present application failed to properly address the relevant legal procedures and issues in order to invoke the judicial review jurisdiction.  The application is therefore dismissed.

The 1^st applicant appeared in person 

The 2^nd applicant was absent