Read the full judgment text of CACV 40/2017 on BabelCite. This Court of Appeal judgment was delivered on 7 June 2018 before Lam VP, Cheung JA, Kwan JA.
Administrative law – judicial review – leave application – extension of time – squatter control – government land licence (GLL) – cancellation of surveyed squatter structure (SST) registrations – revocation of licences – whether decisions amenable to judicial review – whether reasonably arguable – multi-faceted assessment – Wednesbury unreasonableness – proportionality – article 29 of the Basic Law – legitimate expectation – fresh evidence – Ladd v Marshall – appeal against refusal of leave not a renewal – duty of full and frank disclosure – ex parte leave application – litigant-in-person. The applicant occupied government land near Lot No 79 in DD 124 San Sang Tsuen, Yuen Long, where twelve SSTs and two GLLs had been granted/tolerated. Following inspections in 2015, the Lands Department found the original structures had ceased to exist and substantial construction works had been carried out; the GLLs were revoked on 21 July 2015, the SST registrations were cancelled on 25 January 2016 (with rectification allowed for SST/1313 which was not demolished), and a section 6(1) Land (Miscellaneous Provisions) Ordinance Cap 28 notice was issued on 29 April 2016. A clearance operation was carried out on 9 August 2016. The applicant filed a Form 86 in person on 4 January 2017 in HCAL 5/2017, and Au J refused extension of time and dismissed the application for leave on 3 February 2017. On appeal, the Court of Appeal held that (1) extension of time should not be granted under the multi-faceted test in Re Thomas Lai and AW v Director of Immigration, given the substantial delay (2.5 years for the GLL challenge, nearly a year for the SST challenge), lack of satisfactory explanation despite professional assistance, weakness of merits, and absence of general public importance; (2) the revocation of a GLL is not amenable to judicial review per Chau Tam Yuet Ching v Director of Lands, as it is a decision in the realm of government land administration; (3) the cancellation of SST registrations is similarly not amenable to judicial review, as the squatter control scheme constitutes informal licence or waiver of government land and there is no material distinction from the GLL scheme, following Anderson Asphalt Ltd v Secretary for Justice; (4) the original Form 86 misidentified the impugned decision and contained no proper grounds; (5) an appeal against refusal of leave is not an occasion for adding new grounds or expanding the scope of judicial review (per Ali Malik Asad; Cathay Pacific Airways Flight Attendants Union; Yu Hung Hsua Julie; Hounkpedji Messanh; Re Romail), as this would allow applicants to flagrantly disregard the Order 53 Rule 4(1) time limit; (6) the decisions were not Wednesbury unreasonable, the photographs and survey records of the July 2015 inspection provided strong evidential support, and the 13 SSTs were registered as separate units, not as a single block with internal partitions; (7) even assuming the proportionality test under article 29 of the Basic Law applied (per Hysan Development Co Ltd v Town Planning Board), the decisions were proportionate as the squatter control policy served legitimate aims, was rationally connected, and the applicant had no legal title and her toleration was always precarious; (8) no legitimate expectation arose from the alleged representation by Mr Tang, which was refuted and not raised in prior correspondence; (9) the fresh evidence in the third affirmation failed the Ladd v Marshall test and should not be admitted; and (10) the duty of full and frank disclosure in ex parte leave applications (per Re Leung Kwok Hung) requires adequate information for the filtering function, and litigants-in-person should have initial responses sought from putative respondents where appropriate. Appeal dismissed with costs; summonses of 25 April 2017 and 10 May 2018 dismissed with costs.
Legal issues: Whether to grant extension of time for judicial review application · Whether revocation of a GLL is amenable to judicial review · Whether cancellation of SST registrations is amenable to judicial review · Whether revised grounds on appeal may expand the scope of judicial review · Whether the impugned decisions were Wednesbury unreasonable · Whether the proportionality test is satisfied under article 29 of the Basic Law · Whether the applicant had a legitimate expectation · Whether fresh evidence should be admitted on appeal
Outcome: Appeal dismissed; refusal of leave to apply for judicial review upheld.
Cited by 16 cases · Cites 8 cases