Wong Ho Tong v. Director of Lands

CACV 40/2017

[2018] HKCA 330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2017

(ON APPEAL FROM HCAL NO 5 OF 2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Au J of 3 February 2017 refusing to grant leave to apply for judicial review concerning the decisions of the Director of Lands in respect of certain structures at the government land near Lot No 79 in DD 124 San Sang Tsuen, Yuen Long.

2.Previously, on the land in question, certain structures were tolerated under squatter control survey numbers SST/1304, SST/1305, SST/1306, SST/1307, SST/1308, SST/1309, SST/1310, SST/1311, SST 1312, SST/1315, SST/X/217 and SST/X/218.  Also there were two government land licences granted in respect of two plots of land, GLL Y07023 and GLL Y11038. 

3.After receiving some complaints, the Lands Department undertook several inspections in 2015 on the land and found that the original surveyed structures had ceased to exist and substantial construction works were carried out thereat.

4.On 21 July 2015, the District Lands Officer notified the licensees of GLL Y07023 and GLL Y11038 by letters that the GLLs were revoked on the ground that there had been unauthorized addition and change of land usage. 

5.On 7 August 2015, the Squatter Control Office notified the occupant of the structures of their findings and that they intended to cancel the registration of SST/1304, SST/1305, SST/1306, SST/1307, SST/1308, SST/1309, SST/1310, SST/1311, SST/1312, SST/1315, SST/X/217 and SST/X/218 [“the SSTs”].

6.On 22 August 2015, the applicant’s son wrote to the Squatter Control Office making representations that the original structures were damaged and they only carried out repair works.  He asked the Office not to cancel the registrations.

7.There were meetings on 2 and 16 September 2015 by the Squatter Control Office with the applicant and her son at which they were informed about the findings on inspection.

8.Further representation was made by the son on 17 September 2015 asking for retrospective permission to repair the structures.

9.The Squatter Control Office did not accept the allegation that the works were mere repair works.  Based on their observations on-site during the inspection, they concluded that the original structures had ceased to exist and in accordance with the published policy of the Office, the registrations should be cancelled. 

10.The Squatter Control Office notified the occupant of the decision to cancel the registrations on the ground that the structures had ceased to exist by a letter of 25 January 2016.  At the same time, in respect of another structure at SST/1313 which was not demolished, the Office permitted rectification.  

11.After the cancellation, the applicant instructed a surveyor, Goldrich Planners & Surveyors Limited [“Goldrich”] to write to the Squatter Control Office on 15 April 2016 claiming that the structures had not been demolished.

12.The Squatter Control Office refuted that by a letter of 29 April 2016.

13.On the same date, the Lands Department issued a notice pursuant to section 6(1) of the Land (Miscellaneous Provisions) Ordinance Cap 28 requiring unlawful occupation of the land in question be ceased.

14.Goldrich had a meeting at the Squatter Control Office on 3 May 2016. At that meeting, the photographs taken by the Office at the inspection were shown to the surveyor and the applicant’s representatives. 

15.After that, there was further correspondence between the applicant and the Office.  The applicant reiterated that the original structures had not ceased to exist whilst the Office refuted the same.

16.On 9 August 2016, the Lands Department carried out a clearance operation on the land.  The operation was disrupted by the son of the applicant and several men.  In the end, the land was repossessed and fenced off.

17.The applicant through her solicitors Cheung & Liu wrote to the District Lands Office on 30 July 2016 alleging that an officer of the Lands Department had made a representation at a meeting in September 2015 that the applicant could restore the structures to the dimensions according to the previous records.  Such allegation was refuted by the Office in a letter of 5 October 2016.

18.On 4 January 2017, the applicant lodged a Form 86 in person in HCAL 5 of 2017 seeking leave to apply for judicial review in respect of the decision of the Director of Lands of 5 October 2016.  The Form 86 did not set out any grounds.

19.The application was supported by her affirmation of 4 January 2017 in which the grounds were stated to be the following,

“ (1) 處方之決定不合邏輯。

(2) 處方之決定沒有充分考慮當時情況。

(3) 處方沒有充分考慮行使酌情權。

(4)     處方之決定不相稱地侵犯本人的住宅及其他房屋。”

20.She also attached to the affirmation some correspondence between her representatives and the Lands Department in 2016.

21.On 3 February 2017, Au J gave his decision after considering the application on the papers.  The learned judge refused to grant extension of time to apply for judicial review and dismissed the application for leave.  His reasons, as set out in the CALL-1 form, were as follows,

“ 由於申請人原有的相關寮屋登記及容忍許可，已在2016年1月被撤銷，而地政總署亦已拒絕其復修要求，故此，申請人已是非法佔用官地。地政總署亦已在2016年4月29日發出通知勒令申請人停止非法佔用官地。其後，地政總署亦已在2016年8月9日執行清場行動。

2. 地政總署日期為2016年10月5日之信件只是重複說明上述事情及要求申請人會面就有關刑事結果作出答辯。

3. 申請人已嚴重逾期就著上述撤銷寮屋登記及容忍許可的決定提出司法覆核。法庭亦看不到理由給予申請人准許逾期申請，尤其是申請人之前是有律師代表。單基於此逾期提出申請理由，法庭便須拒絕批出許可。

4. 無論如何，申請人亦未能在本申請中提供任何在公法下認可不合理及有真實勝數的理據，指出地政總署上述的決定有何不合法或極度不合理性(Wednesbury unreasonable)，故此法庭基於此理由也會拒絕批出許可。”

22.On 17 February 2017, the applicant acting in person issued a Notice of Appeal in respect of the decision of Au J.

23.On 23 March 2017, solicitors for the applicant came on record in this appeal.  They also issued a summons seeking to substantially amend the Notice of Appeal.  They also sought to revise the Form 86.  A draft revised Form 86 was produced as exhibit WHT-1 in the second affirmation of the applicant of 24 April 2017.

24.The appeal first came on for hearing on 24 August 2017.  The applicant was represented by counsel.  After hearing Ms Ng (appearing for the applicant together with Mr Chow), the Court rejected the submission that the application was brought by the applicant within time.  We ruled that the applicant needed to seek an extension of time and the Director of Lands, as putative respondent, was entitled to be heard on that application.

25.We gave directions for the joinder of the Director as a party to the appeal.  We were also concerned that the applicant had not placed before us all relevant evidence.

26.Further submissions and evidence have been filed in accordance with our directions.  The Director has filed substantive evidence setting out the history of the matter.  After consideration of such evidence and submissions, solicitors for the applicant wrote to the Court on 21 November 2017 informing that the applicant shall continue with the appeal. 

27.After hearing further oral submissions, we come to the conclusion that Au J was correct in refusing to extend time in this case. 

28.The test for considering if time should be extended for an application for judicial review to be brought is set out in Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration [2016] 2 HKC 393.  In assessing if there is a good reason for extending time, the Court will conduct a multi-faceted analysis including these factors:

(a) Length of the delay;

(b) Explanation for the delay;

(c) Merits of the substantive application;

(d) Prejudice;

(e) If the application involved questions of general public importance.

29.The analysis is a flexible one and the weight to be attached to relevant factors depends on the facts and circumstances of the case.

30.In the present case, it is to be noted that in the original Form 86, there was no challenge to the revocation of the GLLs. Actually, the reference to the decision of the Director of 5 October 2016 was incorrect.  The actual decision cancelling the registrations of the SSTs was made on 25 January 2016.

31.Hence, even assuming that the original Form 86 can be read as a challenge to the decision to cancel the registrations, the judge was plainly right in holding that the challenge was brought out of time. On the material before the judge, we are also of the view that the judge was correct in holding that extension of time should not be granted.

32.As mentioned, after solicitors for the applicant had come on the record, the notice of appeal and the Form 86 had been substantially revised.  In this connection, we have to reiterate that in Hong Kong, an appeal against a refusal of leave is not the same as a renewal of application for leave.  Ms Ng’s submission to the contrary is without foundation as the authority she cited, Park Lomen Inn Ltd v Appeal Board (Hotel and Guesthouse Accommodation) [2015] 4 HKLRD 506 at [10] did not support her. 

33.Thus, this Court has held that though there is power to allow an applicant to revise the grounds for seeking judicial review and to admit further evidence to support the application, unlike a renewed application for leave, these are not steps that can be taken by an applicant as of right. 

34.Further the Court should only permit such courses to be taken after careful consideration, see Cathay Pacific Airways Flight Attendants Union v Director-General of Civil Aviation [2007] 2 HKLRD 668; Yu Hung Hsua Julie v The Chinese University of Hong Kong [2016] 5 HKLRD 393 at [9]; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152 at [14]; Re Romail [2018] HKCA 186.  As the present case illustrates, the draft revised Form 86 was the first time at which the applicant indicated that she sought leave to judicial review to challenge the revocation of the GLLs.  There is nothing at all in the materials before the judge suggesting that those were also decisions under challenge.  This Court should be vigilant to guard against new grounds being loosely added by way of appeal and substantially expand the scope of an intended judicial review which, if first brought at the time of the appeal, would be seriously out of time.  As observed by the Court in Ali Malik Asad v Torture Claims Appeal Board [2018] HKCA 39, at [10]:

“ An appeal is not the occasion for an applicant to shift his grounds after the original grounds failed to succeed at the court below. This principle is equally apposite in an appeal against the refusal of leave. Otherwise, an applicant could flagrantly disregard the time limit in Order 53 Rule 4(1).”

35.For the reasons given below, we are of the view that the grounds set out in the revised Form 86 are not reasonably arguable and it would be futile to grant leave for the amendment of the Form 86.

36.In the present instance, given that the decisions to revoke the GLLs were made in July 2015, by the time of the filing of the draft revised Form 86 as exhibited to the affirmation of 24 April 2017, it was already more than 2.5 years after the decision.  The delay is very long and there is no satisfactory explanation for the lapse of time.

37.Further, as a matter of law, as held by this Court in Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169, a decision by the Director to revoke a GLL is not amenable to judicial review. 

38.In respect of the decisions to cancel the SSTs, the delay was (from 25 January 2016 to 4 January 2017) also substantial.  The applicant was assisted by professionals (including a firm of solicitors) in the matter.  We do not accept Ms Ng’s submission that the delay could be accounted for due to the need for clarification on the basis of the decisions.  Prior to the decisions of 25 January 2016, the applicant had been alerted and she and her representatives were interviewed in September 2015.  In those interviews, she and her representatives were informed of the findings by the Squatter Control Office.  The grounds for cancellation of the registrations were succinctly stated in the letter of 25 January 2016.

39.The fact that the Director continued to engage with the representatives of the applicant does not mean that there is a good reason for extending time. 

40.At the hearing, Ms Ng also told us the personal circumstances of the applicant.  We cannot entertain such submission because it is quite plain to us that the case was not brought by the applicant on her own.  She had all along been assisted by her son who had the resources to engage professionals, including surveyor and solicitors, to advise them.  In any event, the applicant has not provided any evidence to explain for the delay. 

41.In the circumstances of the present case, we cannot find any satisfactory explanation for the delay.

42.On the merit of the challenge to the decisions to cancel the SSTs, the toleration granted under the Squatter Control scheme is, in law, a form of informal licence or waiver by the Government for the use of government land.  Notwithstanding the submissions of Ms Ng, we cannot see any distinction in the role played by the Director in the administration of that scheme as compared with the administration and management of government land under the GLL scheme.  Hence, the rationale in Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169 is equally applicable. 

43.In 曾娣對地政總署CACV 17 of 2011, 27 July 2012, the point was not discussed.  In Re Wong Kwai Leung HCAL 138/2015, 8 March 2016, G Lam J did not find it necessary to decide the point as he found that there was insufficient public law element to provide the basis for public law challenge to the decision of the Director in that case, see the discussion at [25] to [30] of that judgment.  There is nothing in these authorities which is inconsistent with the analysis at [39] above. 

44.Ms Ng submitted that there is a distinction between GLLs and SSTs because the former was governed by the terms of the licences whilst the latter was governed by the Squatter Control policy.  She laid emphasis on the origin of that policy to deal with the accommodation need stemming from influx of immigrants in the 1960’s and 1970’s and the conduct of land survey in 1975. 

45.We are not persuaded that the origin of the policy and the purpose it served give rise to a sufficiently strong public element in the administration of such scheme, including decisions to cancel the registration of SSTs, to render the same amenable to judicial review.  As it was said in Chau Tam Yuet Ching v Director of Lands, supra, at [23]:

“ The mere presence of some public element in the Government’s decisions is not sufficient to transform such decisions into public law decisions. After all, the Government administers land in Hong Kong, whether qua landowner or landlord or covenantee, for the benefit of the general public and it is difficult to imagine a case where a public official can make such decision without affecting the public interest either directly or indirectly.”

46.In Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215, A Cheung J (as the Chief Judge then was) reviewed the relevant authorities and summarized the principles at [57].  For present purposes, we only need to recap the following propositions set out at sub-paras (a) to (e),

“ (a) Only a decision made in the public law domain is amenable to judicial review.

(b) Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance.

(c) In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or a decision made in the performance of a purely commercial function, is most likely a private law decision, not amenable to judicial review.

(d) Put another way, the presence of a public element(s) of sufficient significance in the decision-making process could turn an otherwise commercial decision into a public law decision, amenable to judicial review.

(e)     What is sufficient is a matter of fact and degree, depending very much on individual cases.   No hard and fast rule can be laid down.   It is, in a borderline case, very much a matter of overall impression and one of degree: R v Legal Aid Board, ex p Donn & Co [1996] 3 All ER 1, p 11h, cited with approval by Mortimer VP in Matteograssi, supra, at p 219C-D.”

47.In Chau Tam Yuet Ching v Director of Lands, supra, after referring to the relevant authorities including Anderson Asphalt Ltd v Secretary for Justice, it was said at [32]:

“ In my judgment, for the purpose of determining whether a decision on land administration is amenable to judicial review, there is no material distinction between a licence and a lease or a short-term waiver.”

48.As said above, the toleration granted in respect of the SSTs is still within the purview of Government land administration and management by the Government.  In terms of legal analysis, the SSTs are in effect informal licences or waivers and the terms of the licences or waivers were those set out in the published policy.  We cannot see any material distinction between GLLs and SSTs to render the latter amenable to judicial review whilst the former is not.  

49.In any event, the case of the applicant as now presented by Ms Ng was in substance essentially a challenge to the findings by the Squatter Control Office.  However, it is not the function of the court in an application for judicial review to re-open such findings as if we were hearing an appeal from the Office.  The administration of Government land is the function of the Director, not the court.  Hence, it is not appropriate for the court to usurp that role by reviewing the findings on papers when we do not have the benefit in terms of site inspection and the expertise of those in the Squatter Control Office to assess the extent to which the original structures remained after the works undertaken by the applicant or her agents. 

50.Based on the materials we have seen in the Director’s evidence, in particular those produced under the two affirmations, we do not consider it as reasonably arguable that the Squatter Control Office is Wednesbury unreasonable.  Further, we do not find the decision to be in any way disproportionate, irrational or illogical.  Based on the findings by the Squatter Control Office, the works carried out on the land were not mere reparation works and they could not be regarded as mere irregularities (unlike the case for SST/1313, for which rectification was allowed).  The decision to cancel these registrations was in line with established and published policy of the Director.

51.As Mr Lui submitted, the applicant comes nowhere near the threshold for mounting a judicial review on the ground of mistake as to an established fact as discussed by Carnwath LJ in E v Secretary of State for the Home Department [2004] QB 1044.  The photographs of the site inspection of 16 July 2015 provided strong evidential basis supporting the findings of the Squatter Control Office.  Even taking account of the representations of the applicant and her representatives in 2015, we cannot discern any reasonably arguable public law ground to displace such findings.   

52.Nor can it be suggested that the decision was reached without giving the applicant a fair opportunity to respond.  As mentioned, she and her representatives had attended interviews in September 2015.  The representations made on her behalf had been duly considered by the Office.  In this respect, the affirmation of Tang Pik Ching at para 57 demonstrated how the representations were duly considered. 

53.The argument that the 13 SSTs were adjoining units forming one block separated only by internal partition cannot get off ground.  First, as submitted by Mr Lui, the applicant and her representatives did not raise this point prior to the decisions of the Director on 25 January 2016.  Second, there is no merit in this argument.  The evidence of the Director clearly rebutted the argument, see para 59 of the affirmation of Tang Pik Ching.  The survey records of the Squatter Control Office also showed that these registered structures had different dimensions and heights with different usages.  They were not registered as one single structure with internal partition.  They were registered as different units and that was the extent to which they were tolerated under the Squatter Control policy.  It is patently unreal to suggest, as Ms Ng did, that the whole land was occupied by one single block with internal partitions.  The toleration granted under the SSTs were in respect of different units segregated by external walls, not by internal partitions.  The applicant’s attempt to reconstruct these different units into one single block separated by internal partitions clearly constituted demolition and re-building which was not permitted under the policy.  

54.In respect of the argument based on article 29 of the Basic Law, again there is no evidential basis to support the same.  In Chim Sui Ping v Hong Kong Housing Authority HCAL 139 of 2009, 17 September 2012, the respondent conceded in the context of that case that the proportionality test is applicable, see [39] of the judgment.  Counsel did not refer us to other relevant authorities and we do not have sufficient assistance in the present appeal to resolve the applicability of article 29 in the context of the administration of government land.  In the circumstances, that issue may have to be further addressed on future occasion.  For present purposes, it suffices for us to say even if one proceeds on the basis that a proportionality analysis is required, we are satisfied that the decisions in question are proportionate. 

55.Contrary to the submission of Ms Ng, if the proportionality test is engaged, it is an exercise to be undertaken by the Court, not the Director, see Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 at [54], [76], [78], [81], [105], [106], [130]. 

56.As Mr Lui submitted, in the draft revised Form 86, there was no challenge to the scheme of squatter control.  The scheme clearly serves the legitimate aims of fair and proper management of government land (a scarce and valuable resource in Hong Kong), prevention of abuses of the squatter toleration policy in terms of conversion of old registered squatter structures to new structures.  The policy is clearly rationally connected with these aims.  Even adopting the more stringent standard of “no more than necessary” in assessing if the measures adopted is proportionate, as it is already built into the policy the scope of permitting rectification in mere irregularities and reserving cancellation for cases where the original structures were demolished, we consider that the test is satisfied.

57.Ms Ng’s only argument on disproportionality is based on the fourth step in the proportionality test as expounded by the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board, supra.  She submitted that the ultimate societal benefit derived from the decision is outweighed by the devastating consequence of eviction of the applicant from her home.

58.The purpose of the fourth step was discussed at some length by Ribeiro PJ in Hysan at [70] to [79].  In particular, His Lordship summarized the position succinctly at [76] and [78] as follows:

“76. The fourth step therefore requires the Court to examine the overall impact of the impugned measure and to decide whether a fair balance has been struck between the general interest and the individual rights intruded upon, the requirement of such a fair balance being inherent in the protection of fundamental rights …

…

78. … This requires the Court to make a value judgment as to whether the impugned law or governmental decision, despite having satisfied the first three requirements, operates on particular individuals with such oppressive unfairness that it cannot be regarded as a proportionate means of achieving the legitimate aim in question.  …”

59.With respect, Ms Ng’s submission fails to reflect properly the societal benefit in the decisions made in accordance with the established squatter control policy.  At the same time counsel exaggerates the incursion to the right of the applicant in her analysis.

60.The societal benefit in terms of the fair and consistent application of the established squatter control policy should not be underestimated.  Based on the findings of the Office (which, as explained above, the Court has no valid basis to disturb), the construction works undertaken at the land in question involved the demolition of the original structures.  The applicant and those carrying out the works were aware that they had no title on the land and the toleration under the squatter control policy did not permit them to reconstruct the structures.  As found by the Squatter Control Office, it is a case of serious breach which was not rectifiable.  If the decisions were to be impugned on account of disproportionality, it is as good as saying that so long as part of the structures had been used as a residence at some stage, the limitations prescribed under the policy could not be enforced.  Immense damage would be done to the maintenance of the policy.

61.We recognize that the decisions carry with them the cessation of the applicant’s occupation of the land on which she had previously been living.  But quite apart from the fact that she would not be rendered homeless (as the Director’s evidence indicates that she could apply for public housing), her “right” to live there has all along been subject to strict limitations under the policy.  This precarious position stems from the fact that she had no legal title or interest over the land and she was only a squatter tolerated by the Government.  She had previously enjoyed the benefit of toleration under the policy for a long time.  It is not unfair that she should take the consequence of her failure to observe its limitations.

62.In the application of the proportionality test in respect of article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedom, the Supreme Court of United Kingdom in Manchester City Council v Pinnock [2011] 2 AC 104 held at p.126 to 127:

“ The question is always whether the eviction is a proportionate means of achieving a legitimate aim. Where a person has no right in domestic law to remain in occupation of his home, the proportionality of making an order for possession at the suit of the local authority will be supported not merely by the fact that it would serve to vindicate the authority's ownership rights. It will also, at least normally, be supported by the fact that it would enable the authority to comply with its duties in relation to the distribution and management of its housing stock, including, for example, the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs, and the need to move vulnerable people into sheltered or warden-assisted housing. Furthermore, in many cases (such as this appeal) other cogent reasons, such as the need to remove a source of nuisance to neighbours, may support the proportionality of dispossessing the occupiers.

In this connection, it is right to refer to a point raised by the Secretary of State. He submitted that a local authority's aim in wanting possession should be a “given”, which does not have to be explained or justified in court, so that the court will only be concerned with the occupiers' personal circumstances. In our view, there is indeed force in the point, which finds support in Lord Bingham's comment in Kay v Lambeth London Borough Council [2006] 2 AC 465 , 491, para 29, that to require the local authority routinely, from the outset, to plead and prove that the possession order sought is justified would, in the overwhelming majority of cases, be burdensome and futile. In other words, the fact that the authority is entitled to possession and should, in the absence of cogent evidence to the contrary, be assumed to be acting in accordance with its duties, will be a strong factor in support of the proportionality of making an order for possession. But, in a particular case, the authority may have what it believes to be particularly strong or unusual reasons for wanting possession—for example, that the property is the only occupied part of a site intended for immediate development for community housing. The authority could rely on that factor, but would have to plead it and adduce evidence to support it.

Unencumbered property rights, even where they are enjoyed by a public body such as a local authority, are of real weight when it comes to proportionality. So, too, is the right—indeed the obligation—of a local authority to decide who should occupy its residential property. As Lord Bingham said in Harrow London Borough Council v Qazi [2004] 1 AC 983, 997, para 25:

“the administration of public housing under various statutory schemes is entrusted to local housing authorities.  It is not for the court to second-guess allocation decisions.  The Strasbourg authorities have adopted a very pragmatic and realistic approach to the issue of justification.”

Therefore, in virtually every case where a residential occupier has no contractual or statutory protection, and the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. However, in some cases there may be factors which would tell the other way.” (our emphasis)

63.In light of that analysis, the Supreme Court further highlighted that a person claiming protection under art 8 at least bears the burden of raising the argument with some substantive evidence of some cogency to support the same at p.129:

“ Secondly, as a general rule, article 8 need only be considered by the court if it is raised in the proceedings by or on behalf of the residential occupier. Thirdly, if an article 8 point is raised, the court should initially consider it summarily, and if, as will no doubt often be the case, the court is satisfied that, even if the facts relied on are made out, the point would not succeed, it should be dismissed. Only if the court is satisfied that it could affect the order that the court might make should the point be further entertained.”

64.In the present case, apart from the bare allegation of the applicant that she had been living at the land with her family in the past, there is no additional basis to weigh in the balance against the property right of the Government and the public role of the Director in the proper management of government land.  

65.For these reasons, we are of the view that the decisions of the Director strike a fair balance in the present circumstances.

66.Ms Ng also submitted that the applicant had a legitimate expectation that she would be allowed to rectify in light of (a) the Director’s policy; and (b) in the representation by Mr Tang at one of the interviews in September 2015.  

67.With respect, as we said above, on the findings of the Squatter Control Office that the original structures no longer existed, it was in line with the established policy of the Director to cancel the registrations and not to permit reconstruction.  As regards the alleged representation by Mr Tang, this had been refuted in his affirmation.  In light of the established policy and the findings by the Squatter Control Office as set out in the letter of 7 August 2015, it was unlikely that Mr Tang would have made such representation.  There is no reliable evidence to show that such representation had been made.  Further, there was no reference to such representation in the correspondence from the applicant’s son and Goldrich. The allegation was only first raised in the letter of 30 July 2016 from Cheung & Liu.

68.In any event, by the time of the alleged representation, the original structures had already been demolished.  It cannot be said that the demolition of the structures was made in reliance on the alleged representation.

69.Taking account of the relevant evidence, we do not see a reasonably arguable case on legitimate expectation.

70.On the whole, the applicant fails to persuade us that she has a reasonably arguable case in seeking to challenge the Director’s decisions.

71.The undue delay on the part of the applicant in seeking leave is detrimental to good administration because it caused substantial delay to the process of removal of the unauthorized structures on the land. 

72.In the end, as it is apparent from the above discussion, the issues in the present case ultimately depend on the findings of the Squatter Control Office.  We do not consider that there is sufficient involvement of any issue of general public importance which calls for extension of time to be granted.

73.In the circumstances, applying the multi-faceted assessment as discussed in AW v Director of Immigration, supra, we are not satisfied that there is good reason for extending time.  Au J was correct in refusing leave on that basis.

74.There is also an application for leave to adduce evidence by way of the Third Affirmation of the applicant.  That application was made by a summons of 10 May 2018.  There is no explanation for the lateness of the application.  The evidence of the Director was filed on 3 October 2017. As we said above, we are not impressed by Ms Ng’s attempt to pray in aid of the personal circumstances of the applicant.  She had the benefit of legal advice after the sight of the Director’s evidence and submissions before her solicitor wrote to the Court indicating that she would proceed with the appeal.  The hearing date of the resumed appeal was fixed on 28 November 2017.  Had the applicant wished to put forward further evidence, she and those advising and assisting her should have proceeded immediately in November 2017 to prepare the same and make the requisite application. 

75.Quite apart from the timing of the application, all the evidence should have been available at the time when the matter was before the court below.  Further, the proposed new evidence could not assist the applicant.  The photographs produced by the applicant could not contradict the clear evidence of the survey in July 2015. 

76.Hence, we are of the view that the requirement of Ladd v Marshall [1954] 1 WLR 1489, are not satisfied and there is no other reason for admitting the fresh evidence.    

77.For these reasons, the appeal is dismissed with an order nisi that the applicant shall pay the costs of the Director. We also dismiss the summonses of 25 April 2017 and 10 May 2018 with costs. Such costs are to be taxed if not agreed.

78.The history of this appeal illustrates the importance of making proper preparation in seeking leave to apply for judicial review.  We must stress again that an appeal against refusal of leave is not an occasion for an applicant to make a fresh attempt in seeking leave.  Hence, the Court will not permit grounds to be amended or new grounds to be advanced or fresh evidence to be admitted lightly.  This principle applies irrespective of whether the applicant has legal representation at the court below.  In an appeal, this Court should normally have the benefit of the analysis of the court below on issues which are of importance in the case.  Thus, it has been said that in our system, proceedings in the first instance court should be the main event. The same applies to an application for leave to apply for judicial review. Therefore, if a litigant chose not to raise some important issues or put forward some important evidence at the court below, it would not lie in his mouth to complain if this Court shall decline to entertain such new issues or new evidence.  

79.This Court also discerns on a number of occasions, applications for leave to apply for judicial review brought by litigants acting in person are not properly prepared and the ex parte evidence put in by such litigants did not place before the court a comprehensive and proper picture of the matter.  In Re Leung Kwok Hung HCAL 83 of 2012, 28 Sept 2012, the court had this to say regarding the ex parte nature of the application at [35] to [42]:

“35. In Sky Wide, I have described the procedural directions for the disposal of a leave application as the exercise of case management discretion. I still hold such a view and by way of dealing with Mr Lee’s submissions, I need to elaborate on it. As Mr Lee rightly pointed out, an applicant bears a duty of full and frank disclosure in the ex parte application for leave and any breach of such duty may result in leave being set aside. I should add that the duty of full and frank disclosure extends beyond disclosure of material facts, it also extends to disclosure of potential legal answers to the claims of an ex parte applicant. Unfortunately, this duty is not always observed. In my experience as the judge in charge of the Constitutional and Administrative Law List, very often the court is not provided with all relevant information and adequate assistance in the papers filed on behalf of an applicant for the proper performance of its role in the filtering process. Sometimes this may due to the fact that the applicant acts in person. Sometimes it may due to the inadequate instructions given by an applicant to the lawyers. Sometimes it may due to the inadequate investigation of the matter by the lawyers before launching the application. Sometimes it may due to the omissions on the part the lawyers in considering some relevant issues. Sometimes it may due to the insufficient communication between the applicant and the relevant authority resulting in the applicant (and those advising him) not having a full grasp of the reasons for the decision or the decision-making process.

…

37. … in many cases judges reading the papers for leave require further information and assistance before he or she can be satisfied that the case is reasonably arguable. In addition to the situations mentioned above, the following factors also contributed to the need for asking inputs from the putative respondents,

(a) Constitutional challenges in judicial review are becoming more prevalent. In most of such challenges, an applicant would only set out his grounds of challenge without putting forward any potential justifications for a policy or legislation. Even if some potential justifications were put forward, it would not be comprehensive. As the putative respondent generally carries the burden of establishing the justifications, the court must have inputs from the putative respondent before it can properly perform its role in the filtering process;

(b) There are instances where those acting for applicants only focus on an applicant’s challenge in the material presented to the court without giving serious considerations to the potential answers which a putative respondent may have in respect of the challenge. The court from time to time encounters cases where an advocate, even doing his best in fulfilling his duty in an ex parte application, unwittingly failed to give comprehensive and adequate assistance to the court in terms of the presentation of the potential answers of his opponent;

(c) As Mr Lee acknowledged in proposition (13) of his submissions, there are judicial review applications where the mere granting of leave would have serious implications for the community and the public purse. It is only right that the court will, in those cases, scrutinize the application more intensely in performing its filtering function. The test for granting leave remains the same, whether the challenge is reasonably arguable. But the court should ensure that it has got before it adequate information with regard to the potential answers to the challenge before it decides whether the threshold has been satisfied. As Chief Justice Li observed in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 8, arguability has to be judged with reference to the nature and gravity of the issue to be argued. The more serious the allegation or more serious the consequences, the stronger must be the evidence before a court. In my experience, nowadays, in those cases the putative respondent invariably wrote to the court asking for leave to be heard on the question of leave. Invariably, at the hearing the court received valuable assistance from those representing such putative respondent, drawing attention to matters not adequately canvassed in the applicant’s papers. In that regard, the hearing for leave is better regarded as a compressed ex parte application for leave plus an inter partes application to set aside leave in the spirit of fair, efficient and expeditious disposal of matter in line with Order 1A under the Civil Justice Reform;

(d) In some of the cases, an applicant has to seek extension of time because the application for leave is made outside the three month time limit. Though in some instances the court may grant extension of time on ex parte basis, in cases where the delay might have great impact or disruptive effect to the relevant administrative process, it is only fair that the court will hear from the putative respondent before granting extension;

…

40. It is a matter of case management for the judge handling the leave application to decide on the manner of seeking comments from the putative respondent. In the past, some judges gave written directions inviting written comments from the putative respondent on specific issues or generally. Recently, a practice has been introduced: where a judge considers that it is necessary for the proper performance of the filtering function in a leave application to have input from the putative respondent after reading the papers filed by the applicant, he or she would give written directions for the service of the papers on the putative respondent and for the filing of a short initial response (usually confined to not more than 3 pages in light of the observations in R (Ewing) v Deputy Prime Minister [2006] 1 WLR 1260) by the putative respondent. The applicant would be given the opportunity to comment on the initial response. If these written exchanges provide the necessary information for the proper performance of the filtering function, an oral hearing can be obviated and costs can be saved thereby…

41. But there are cases where the judge may consider that in the circumstances it would be more appropriate to hear from the putative respondent at an oral hearing: e.g.  due to the urgency of the matter or the application for controversial interim relief which may cause substantial disruption to a public project or a public matter.  As I have stressed before, it is a matter of case management discretion for the judge handling the leave application. The exercise of such discretion is guided by the underlying objectives in Order 1A and the primary concern is the proper, efficient, fair and expeditious performance of the court’s filtering role in a leave application.  Chief Justice Li recognized in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319 at para 17 that in appropriate cases the court should notify the putative respondent of the leave hearing.”

80.In the context of application for leave brought by a litigant-in-person, unless the application is obviously frivolous and without merit, we venture to suggest that it might be helpful if a judge should consider more readily calling for initial response from the putative respondent in order to have at least a more comprehensive picture of the matter.  In this connection, the standard practice in judicial review brought by a litigant-in-person against the decision of the Torture Claims Appeal Board to call for copies of the relevant decisions from the Director of Immigration and the Board is of great assistance. 

81.In the present case, Au J was presented with very limited information when the applicant made the application at the court below.  Her case was substantially revised on appeal.  At the first appeal hearing, it was quite plain to us that even on the materials as presented by the applicant with the assistance of her lawyers, the Court was not given all the information it should have in performing the filtering function.  Hence, we directed the Director to file the relevant evidence and submissions. 

82.As it has been explained in Re Leung Kwok Hung supra, though the rules provide for leave application being made ex parte, it depends on an applicant and his legal advisors observing diligently the duty of full and frank disclosure.  Otherwise, the court cannot properly discharge its filtering role, which is important to ensure that judicial review proceedings would not be discredited by the abusive use of such process.  Hence, in cases where judges processing leave applications have reason to be concerned about the inadequacy of materials presented on ex parte basis, they should not shrink from seeking the necessary information from putative respondents. 

Ms Margaret Ng and Mr Leonard Chow, instructed by Cheung & Liu, for the applicant

Mr Mike Lui, instructed by the Department of Justice, for the putative respondent