Cheung Yuen Ni v. Chief Executive in Council
Read the full judgment text of HCAL 177/2015 on BabelCite. This High Court CFI judgment was delivered on 17 May 2019.
1. This is the applicant’s judicial review seeking to challenge the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 2 June 2015. The Decision was made pursuant to section 11 of the Road (Works, use and Compensation) Ordinance (Cap 370) (“the RWUCO”), authorising a project (“the Project”) relating to the widening works of Castle Peak Road – Castle Peak Section.
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[2019] HKCFI 1290 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 177 OF 2015 _______________
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____________________ J U D G M E N T ____________________ A. INTRODUCTION 1.This is the applicant’s judicial review seeking to challenge the decision (“the Decision”) of the Chief Executive in Council (“the CEIC”) dated 2 June 2015. The Decision was made pursuant to section 11 of the Road (Works, use and Compensation) Ordinance (Cap 370) (“the RWUCO”), authorising a project (“the Project”) relating to the widening works of Castle Peak Road – Castle Peak Section. 2.The Project was initiated by the Transport Department (“the TD”), implemented by the Highways Department (“the HyD”) and overseen by the Transport and Housing Bureau (“the THB”). The objective of the Project is to relieve the traffic congestion problem and cope with the growth of traffic demand in Tuen Mun East. The Project principally involves the widening of a section (“the Section”) of Castle Peak Road – Castle Peak Bay of about 1.9 km between Hoi Wing Road and Castle Peak Road – So Kwun Wut (near Hong Kong Gold Coast Phase I) from a single two‑lane carriageway to a dual two‑lane carriageway. 3.The applicant lives in Tuen Mun South and says she is very likely to be affected by the air and noise pollution of the Project. She challenges the Decision as unlawful on the bases that the CEIC failed to properly discharge its Tameside duty when making the Decision, it is tainted by procedural unfairness during the Project’s consultation process, and the CEIC was wrong in not treating the Project as a Designated Projected as defined under the Environmental Impact Assessment Ordinance (Cap 499) (“the EIAO”). 4.To better understand these challenges, it is necessary to set out the relevant statutory framework and background first. B. THE RELEVANT STATUTORY FRAMEWORK 5.The RWUCO is enacted to provide for, among others, the publication of proposals as to works in relation to roads, objections to the proposals, authority to carry out the works. Relevant for the present purposes, it provides as follows:
6.Hence, in summary, under the RWUCO, if the Secretary for Transport and Housing (“the Secretary”) proposes to carry out any major works:
7.Further, insofar as relevant for the present purposes, the EIAO provides that:
8.In other words, if the Project should be regarded as a “Designated Project” (“DP”) listed under Schedule 2 of the EIAO, it cannot be commenced and carried out unless the TD has first caused an environmental impact assessment study to be prepared in relation to it, and obtained an environmental permit (“EP”) issued by the Director of Environmental Protection (“DEP”) based on the study report. 9.In this respect, the applicant contends in this application that the Project is a DP under Item A1 in Part 1 of Schedule 2 (“Item A1”), as it relates to “a road which is an expressway, trunk road, primary distributor road or district distributor road including new roads, and major extensions or improvements to existing roads”. C. THE BACKGROUND FACTS[1] C1. The Project and its preparations 10.As mentioned above, the Project involves the widening of a section of Castle Peak Road – Castle Peak Bay of about 1.9 km between Hoi Wing Road and Castle Peak Road – So Kwun Wat (ie, the Section) from a single two-lane carriageway to a dual two‑lane carriageway, associated junction improvement works, provision of noise mitigation measures, modification of an existing footbridge and construction of associated lifts, drainage and traffic-aid works. 11.In or around July 2010, the HyD commenced the preparation of a Technical Feasibility Statement for the Project. 12.Between August 2010 and September 2012, the TD repeatedly confirmed with the HyD its view that the Section was a “rural road”, and based on that, the Environmental Protection Department (“the EPD”) also advised that the Project on the Section was not a DP:
13.From March to May 2013, the HyD introduced the Project in three briefing sessions to local communities and organisations, and collected the initial view of members of the public on the Project as well as the proposed provision of noise mitigation measures. 14.On 26 August 2013, the HyD sought the TD’s confirmation again that the classification of the Section would remain in its view as a “rural road” after completion of the Project, taking into consideration the Government’s new proposal for housing developments in Tuen Mun East. On 27 August 2013, the TD confirmed that the “rural road” classification of the Section should remain[9]. 15.After the completion of the preliminary design of the Project, on 13 September 2013, the HyD consulted the Traffic and Transport Committee of the Tuen Mun District Council on the Project in a meeting. The Traffic and Transport Committee agreed to the HyD’s proposal to proceed with the gazettal of the Project in accordance with the RWUCO. 16.From September to December 2013, prior to the gazettal of the Project, the HyD held public consultation sessions with local residents of various residential developments along the Section. Views from the local residents on such matters as the need for and design of the proposed noise barriers outside their respective estates were considered and incorporated into the Project as far as practicable. 17.In the meantime, the HyD’s consultant proceeded with the preparation of a PER report for the Project. On 31 May 2013, the consultant submitted a draft PER report to the EPD for comment, showing the detailed layout of the widening and improvement of the Section and other roads concerned under the Project and the environmental impacts. Pursuant to the EPD’s request, the HyD’s consultant further circulated the draft PER to the Agriculture, Fisheries and Conservation Department (“the AFCD”) and the Planning Department (“the PlanD”) for comment. Having considered and incorporated comments from relevant Government departments, the HyD submitted the completed PER report to the EPD on 4 December 2013 and 24 December 2013 for consideration[10]. 18.On 27 December 2013, the EPD indicated that it had no further comment on those chapters in the PER report that were under its purview[11]. 19.Separately, the AFCD indicated that it had no major comment on the ecological aspects of the said PER report, which were under its purview and only suggested some textual amendments; and the PlanD indicated that it had no further comment on the landscape and visual aspects of the said PER report, which were under its purview[12]. The Lands Department, which also received the said PER report for information, did not provide any comment on the same. 20.On 24 December 2013, the final report of the PER (“the PER Report”) was submitted to the EPD. 21.Subsequently, the HyD prepared the plans in relation to the Project and the scheme annexed thereto for the THB’s endorsement. Those plans and scheme were gazetted[13] and published on 10 and 17 January 2014 pursuant to section 8 of the RWUCO. 22.During the statutory section 10 objection period from 10 January 2014 to 11 March 2014, the THB received 281 objections and referred the same to the HyD for consideration and resolution. Out of the 281 objections, 11 duplicated objections were consolidated, resulting in 270 objections to be resolved. The HyD followed up on the objections with objectors to address their concerns and requests, including those further raised by objectors during the objection resolution process. 23.During the HyD’s consultation session held with the Traffic and Transport Committee of Tuen Mun District Council on 13 September 2013, the HyD also provided a summary of findings of the PER Report to its members. Since then, the HyD conducted further public consultation sessions at residential developments along the Section from September to December 2013 prior to the gazettal of the Project in January 2014. In those sessions and correspondence and follow-up meetings with some resident representatives, the HyD mentioned that the PER Report had been prepared. In the course of the objection resolution process, one of the objectors actually inspected the PER Report in full at the HyD’s office on 2 September 2014[14]. C2. Submission to the CEIC in 2015 24.Having considered the objectors’ concerns and requests during the objection resolution process, the HyD assisted the THB in preparing the plans and scheme and organizing the objections lodged (including objection letters, notes of objection resolution meetings, and correspondence between the Government and the objectors including those exchanged in the objection resolution process) to be submitted to the CEIC. The THB subsequently submitted the plans, scheme and relevant information to the Executive Council Secretariat for the CEIC’s consideration in accordance with section 11(1A)(c) of the RWUCO. 25.On 2 June 2015, the CEIC made the Decision under section 11(2)(b) of the RWUCO. The Decision was gazetted on 3 July 2015 and 10 July 2015 pursuant to section 11(9)(d) of the RWUCO. C3. Events after the Decision 26.In July 2015, a “fair copy” of the Review Report (Final) – Rev1 (Environmental) in respect of Widening of Castle Peak Road – Castle Peak Bay – Design and Construction was published (the “Review Report”) “for record”. 27.On 1 September 2015, the applicant lodged an ex parte application for leave to apply for judicial review against the Decision. 28.On 8 December 2015, the CEIC filed its initial response objecting to the grant of leave to the applicant (“the Initial Response”). A hearing of the leave application was held on 12 August 2016, and the court granted leave to the applicant on 4 October 2016. 29.The applicant filed the Re-Amended Form 86 on 2 November 2017. D. THIS JUDICIAL REVIEW 30.Mr Anson Wong SC (together with Mr Ernest Ng) has advanced three grounds of challenges in this judicial review. He summarizes them as follows:
31.I will deal with these grounds in the order as Mr Wong has advanced them at the hearing and in his skeleton. D1. Ground 2B[19] 32.It is trite that a public body has a duty to carry out a sufficient inquiry before making its decision. This is commonly known as the Tameside duty[20]. Under this duty, the question for the court is whether the decision maker:
33.Insofar as the second limb relating to the reasonableness of the inquiry is concerned, it is also trite that it is for the decision maker to decide on the extent and sufficiency of the inquiry, subject only to a Wednesbury challenge[21]. 34.In order to understand the arguments advanced under this ground, one has to start with the following context first. 35.The Air Pollution Control Ordinance (Cap 311) (“the APCO”) sets out the prevailing AQOs in its Schedule 5. The prevailing AQOs at the time of the PER Report dates back to 1987 (“the 1987 AQOs”) and was revised in January 2014 (“the 2014 AQOs”), shortly after the PER Report was submitted but prior to the Decision. 36.So far as relevant to this application:
37.Furthermore, Mr Wong has pointed out that:
38.Relying on the above, it is the applicant’s case that the effect of the revision, ie, the introduction of the 2014 AQOs is that the CEIC must decide according to it (or at least have it properly considered). The revision of the AQOs was a matter of public knowledge, the CEIC ought to have considered the PER Report against the prevailing 2014 AQOs. Mr Wong emphasizes it is trite that a decision maker has to take into account all relevant consideration at the time of the decision even if the consideration arises after inquiry had been conducted and before the decision was made[24]. 39.In the premises, Mr Wong submits that the CEIC failed to discharge his Tameside duty as:
40.In relation to the first complaint, Mr Wong’s contentions are in gist as follows:
41.In support of the submission that as a matter of law, the CEIC must look at the new AQOs when considering the factor of air quality impact, Mr Wong principally relies on De Smith’s Judicial Review (7th ed) at paragraph 5-132, which states as follows:
42.With respect, I am not persuaded by Mr Wong’s submissions that as a matter of law the CEIC must look at the new AQOs when he made the Decision. 43.Fundamental to this contention is that the policy to “ensure that the [new AQOs] are met as soon as possible” means that the 2014 AQOs standard is to be applied by the Government immediately to any ongoing matters or projects. This however depends on the proper construction of the meaning of the policy. 44.In my view, objectively construed, when the words “as soon as possible” are used, instead of say “immediately”, it is intended by the Government in setting that policy to allow the Government and its relevant departments a degree of flexibility and latitude in deciding whether and when it was best and practicable to apply the newly legislated AQOs in relation to the implementation of any related administrative and government projects, schemes or decisions. This must also be of common sense, as there may well be ongoing Government projects or administrative schemes which have been planned or implemented based on the previous AQOs standard to the extent that it would be unreasonable or impracticable to change them to conform with the new AQOs standard with immediate effect. This is particularly so since, as submitted by Mr Man, the AQOs represent “objectives” aspired to be achieved, which by definition permits and entails a degree of flexibility to allow the relevant authority or entity time to take steps and measures seeking to meet them. 45.In the premises, I do not agree that the policy mandates the CEIC to apply the 2014 AQOs to decide whether or not to approve the Project. The CEIC therefore did not ask the wrong question as contended by Mr Wong in making the Decision. 46.The leaves the question as to whether it is however irrational or Wednesbury unreasonable for the CEIC to look at only the 1987 AQOs standard but not the 2014 AQOs in making the Decision. 47.In this respect, it must be noted that in considering whether to make the Decision, the CEIC was fully aware of the objections premised on the complaint that the PER Report was conducted by reference to the 1987 AQOs but not the 2014 AQOs, as well as the views of the concerned departments on the applicable AQOs[25]. It is the Government’s position that it decided not to re-do a PER based on the 2014 AQOs so as to ensure project certainty[26]. 48.I agree with Mr Man SC (together with Mr Mike Lui) for the CEIC that in the circumstances of the present case, it cannot be said to be irrational for the CEIC to accept the PER Report (which was based on the 1987 AQOs) in making the Decision. It is common sense that large scale infrastructure projects such as the Project would generally involve years to prepare before the necessary approval is obtained to commence it. Much public money, time and efforts would have been spent in the preparations. If the preparations have been conducted and carried out in accordance with the statutory requirements or objectives then valid as at that time, those preparations are not invalidated retrospectively by reason of a later change in the relevant statutory requirements or objectives[27] to ensure project certainty[28]. In the circumstances, it clearly cannot be said that it is Wednesbury unreasonable or irrational for the decision maker to approve the project based on the preparations which were validly prepared and conducted over the years in order to ensure project certainty. 49.For these reasons, I reject the applicant’s contentions that the CEIC had failed to properly discharge his Tameside duty in making the Decision. 50.Both parties have also made extensive submissions in their respective skeletons and oral submissions seeking to demonstrate that the relevant air quality data already stated in the PER Report could (as contended by Mr Wong) or could not (as contended by Mr Man) show that the 2014 AQOs standard would not be satisfied if it had been applied. This is part of the submissions made to support or rebuke the applicant’s error of fact challenge, which is premised on the complaint that the CEIC committed an error of fact by regarding that the Project having complied with the prevailing AQOs standard and no further mitigating measures would be required. 51.However, given the above conclusion that it is neither unlawful nor Wednesbury unreasonable for the CEIC to accept the 1987 AQOs standard in approving the Project, whether the data contained in the PER Report could satisfy the 2014 AQOs is irrelevant to the CEIC’s consideration. There can therefore be no question of any error of fact made by the CEIC in this respect. Hence, it is unnecessary for me to decide the dispute in relation to this particular aspect. 52.I would reject Ground 2B. D2. Ground 3 53.Under this ground, Mr Wong’s contentions are in essence that the public consultation conducted by the HyD was procedurally unfair, as the PER Report was not disclosed during the consultation period (which is in effect the statutory period whereby objections can be raised). Leading counsel emphasized that without the PER Report, no full and proper objections could be raised by the public as they were not fully informed of the content of the environmental assessment relating to the Project. The consultation was hence procedurally unfair. 54.I am not convinced by Mr Wong’s submissions. 55.It is not in dispute that when public consultation is indeed carried out by the authority, it should be done in a fair way. However, what would be regarded as procedurally fair is contextually based and is dependent on the circumstances of each case[29]. 56.It is also well established that in order to succeed in a judicial review for discretionary remedy based on a procedural fairness challenge, it is necessary to demonstrate that the procedural unfairness (even if established) would result in substantial prejudice on the complainant[30]. 57.This however cannot be shown in the present case. 58.First, as rightly submitted by Mr Man, the applicant herself is not even of one of the persons who had raised objections about the Project. It is therefore not open to her to challenge by way of judicial review procedural unfairness concerning the objection consultation exercise. 59.Second, it is pertinent to note that the basis Mr Wong says the consultation was unfairly conducted without the disclosure of the PER Report is premised solely on his contention that the air quality assessment conducted was defective as it was based on the 1987 AQOs standard. He therefore says the public was deprived of the opportunity to comment or raise objections based on that. 60.However, I have concluded above that it was not unlawful or irrational for the CEIC to take into account the PER Report for air quality assessment based on the 1987 AQOs standard. In the premises, even if the PER Report had been disclosed during the consultation period, there was indeed nothing which the public could properly and justifiably criticise in the eyes of the law in relation to the air quality assessment. In other words, it cannot be demonstrated that the public has potentially suffered substantial prejudice without the disclosure of the PER Report during the consultation period. 61.When pressed on this, Mr Wong seeks to argue that even though the air assessment may not be regarded as wrong in law, if the consulted section of the public was aware of the fact that the assessment was based on the 1987 AQOs standard but not the 2014 one, there may well be an outcry and a much larger group of people may oppose the Project on that basis. This may well then have an effect on the CEIC when he considered whether or not to approve the Project. The consulted public therefore was substantially prejudiced. 62.I do not agree. 63.This contention is not only speculative but also not supported by any evidence. 64.Quite to the contrary, as submitted by Mr Man, the evidence shows clearly that:
65.These therefore do not support Mr Wong’s contention that, if the PER Report had been disclosed during the objection period, there could well be a huge outcry, and that the CEIC might have been “swayed” by such an outcry. In this respect, it must further be noted that this purported substantial prejudice was not even relied upon by the applicant in her Re-Amended Form 86. 66.For all these reasons, the applicant fails to show that there could be substantial prejudice suffered by her or the consulted public even if the non-disclosure of the PER Report amounted to some form of procedural unfairness. The applicant must fail under this ground on this basis alone. 67.Further, in primary support of this ground, Mr Wong appears to submit that by reason of the general duty of fairness imposed by common law, the HyD in conducting the public consultation under the RWUCO should in any event provide the PER Report to the public on its own. 68.In advancing this contention, leading counsel in particular relies on:
69.I do not think Mr Wong is correct. 70.The subject challenged “consultation” is a statutory process provided and prescribed under the RWUCO. Under the process, the objection period starts after the publication of the section 8(2) notice, and that notice is to be published within 21 days of the deposit of the plan and scheme in the Land Registry for public inspection required under section 8(1). 71.Hence, properly read together, the RWUCO has expressly stipulated it is only the plan and the scheme that are required to be disclosed for the purpose of initiating that process. As pointed out by Mr Man, the RWUCO does not require any other materials to be disclosed to facilitate the lodging of objections. It will thus be wholly inconsistent with the express statutory provision to imply (as contended for by Mr Wong) an obligation to disclose on its own the PER Report in addition to the plan and scheme: R v Secretary of State for the Home Department, ex p Abdi [1996] 1 WLR 298 at 313F-351C perLord Lloyd. 72.In Abdi, the applicants were Somalians claiming asylum in the United Kingdom after arriving from Spain. Before going to the United Kingdom, they had stayed in Spain for a few days. Their asylum claims under the relevant refugee convention were rejected as the Secretary of State certified their claims to be “without foundation” under the Asylum and Immigration Appeals Act 1993. In particular, the Secretary of State stated in the decision letters that, on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences in returning passengers to Spain, he had no reason to believe that, in the applicants’ particular circumstances, the authorities in Spain would not comply with their obligations under the refugee convention. After their appeals against the certificates under section 8(1) of the 1993 Act were refused by the adjudicators, the applicants brought judicial reviews against the Secretary of State’s decisions to certify their asylum claims being without foundation, as well as the adjudicators’ decisions. The applicants were successful before Sedley J. The Court of Appeal by majority allowed the appeals by the Secretary of State. The applicants appealed to the House of Lords. By majority, the House of Lords dismissed the appeals. 73.Relevant for the present purpose, one of the contentions raised by the applicants in the judicial reviews was that, in relation to the statutory appeals to the adjudicators, the Secretary of State was obliged under a duty implied for fairness to give discovery of the materials on which he had based his “without foundation” certificates. In the absence of those materials, the applicants further contended there had been no evidence on which the adjudicators could have upheld his decisions. On this, the majority of the House of Lords has concluded that, as the 1993 Rules (which govern the statutory asylum appeal to the adjudicators) have specifically provided under Rule 5(6) for the disclosure of certain particular documents, there is no room to argue that, for procedural fairness, the court should imply a further duty on the Secretary of State to disclose any material facts and relevant documents in relation to his decisions. 74.Lord Lloyd (in the majority) has explained the reasons at pp313A‑314E as follows:
75.In my view, Lord Lloyd’s above analysis (as italicized) applies equally to the present case. 76.Mr Wong seeks to distinguish Abdi by saying that Lord Lloyd’s reasoning is premised on the analysis of the particular legislative history of the 1993 Act and Rules (as set out in the first paragraph of the above quote), which is not the case here. I am unable to agree. 77.As can be seen from Lord Lloyd’s italicized quoted observations above, his analysis as to why the court could not imply a further duty to disclose other than those that had been expressly provided by the 1993 Rule has nothing to do with the legislative background of the 1993 Rule. That was made in relation to the discussion of the former requirement under the 1984 Rules for the Secretary of State to serve an “explanatory statement”. In particular, it is pertinent to note Lord Lloyd’s reference to the fact that the 1993 Rules do not impose the discovery obligation on the Secretary of State “any more than the Rules of 1984 [ie, the previous rules]”. Further, as emphasized by Lord Lloyd, he could see no answer to the Secretary of State’s argument that “an implied obligation to disclose all relevant documents is wholly inconsistent with the express obligation to disclose specific documents as set out in rule 5(6) of the Rules of 1993”. This unanswerable argument is not dependent upon the analysis of the legislative history of the 1993 Rules. 78.I therefore reject Mr Wong’s contentions that Abdi is distinguishable from the present case insofar as this issue is concerned. 79.Mr Wong’s reliance on Re Caltex Oil and the Handbook also does not assist him. 80.In Re Caltex Oil, the applicant was an objector concerning a roadwork project proposed by the then Secretary of Transport under the RWUCO, which would require the demolition of the applicant’s petrol station. In its objection, the applicant suggested and provided an alternative roadwork plan to the HyD. The HyD however criticised this alternative plan as unsafe. The Governor in Council at the end approved the Transport Secretary’s proposed project based on the memorandum submitted to the Executive Council by the Transport Board. 81.The applicant’s complaint in its judicial review against the decision was about the Transport Board’s failure to incorporate in its memorandum the applicant’s latest responses to the HyD’s initial criticisms concerning the applicant’s alternative plan. Those responses included revisions made to the alternative plan to address the HyD’s concerns and criticisms. The court accepted that these responses indeed rendered the HyD comments in the memorandum that the alternative plan was not acceptable in traffic terms wrong[34]. 82.It was in this context the court says that, as a matter of natural justice, the government had a duty to act fairly in presenting the objector’s views to the Governor in Council, and that on the particular facts of this case, the applicant had not been given a “fair crack of the whip”. The court also said the applicant had a legitimate expectation that “their updated objection and the relevant correspondence and any other supporting material would (a) be dealt with and commented upon by the department; and (b) would have been brought to the attention of the Exco”, and as a result of which, the applicant had suffered serious prejudice[35]. 83.This is very different and thus distinguishable from the present case. This authority has nothing to do with the project initiator’s duty, if any, to disclose anything further other than what have been prescribed under section 8 of the RWUCO. Re Caltex therefore does not support the general and swiping proposition that, in addition to the statutorily required plan and scheme, the project initiator as a matter of fairness has a duty to disclose on its own to the public all relevant information and documents it has taken into account for a proposed project for the purpose of the section 10 objections process. 84.In this respect, it must be noted that what this means is only that for the purpose of initiating the statutory process to solicit public comments by way of objections, the initiating office is only required to provide the plan and scheme. Mr Man has not disputed that when objections have been or sought to be raised, and when dealing with those objections, as well as in presenting those objections to the CEIC, the government department must act fairly as observed in Re Caltex. This includes providing the necessary information and documents relevant to the proposed project to the objectors upon reasonable request. 85.In fact, as stated in the Handbook, the Government’s position is that, when reasonably requested by the objectors, to maintain fairness in the objection process, the initiating office would have to provide all relevant and necessary information to the objectors. Hence, it is expressly stated at paragraph 4.1.10(b) of the Handbook as follows:
86.What have been stated in the Handbook therefore address the matters concerning procedural fairness after the commencement of the objection period such as those observed in Re Caltex. This also shows that Mr Wong’s reliance on the Handbook to say it supports a duty to be implied to require the initiating department to disclose on its own other relevant documents and information for the purpose of the section 10 statutory exercise is misplaced. For the same reason, Mr Wong’s reliance on this paragraph of the Handbook to alternatively say that the public has a legitimate expectation that department should voluntarily disclose all the relevant documents and information is also without basis. 87.For all these reasons, the applicant also fails under Ground 3. D3. Ground 1 88.Under this ground, the applicant in substance challenges the CEIC’s Decision in effectively accepting that the Project is not a DP. 89.Mr Wong says given that neither the EIAO nor the RWUCO has prescribed who is the decision maker to determine whether a proposed project is a DP, it follows that it is for the court to decide that question ultimately. Any decision made by the DEP or the CEIC in relation to that is only provisional. Leading counsel calls this issue as “the Jurisdiction Issue”. 90.Mr Wong confirms with the court that the relevance or importance of the Jurisdiction Issue in this application is only in relation to the determination of the standard and basis of the court’s review of the CEIC’s Decision on whether the Project is a DP or not:
91.If he is correct on the Jurisdiction Issue, Mr Wong further submits that on the proper consideration of all the factors relevant to the question of whether the Project is a DP, it is clear, and the court should find on its own that the Project is a DP. 92.However, even if he is wrong on the Jurisdiction Issue, Mr Wong says the CEIC’s Decision on the facts of this case is in any event Wednesbury unreasonable. 93.I will examine these arguments in turn. 94.In relation to the Jurisdiction Issue, Mr Wong’s submissions run as follows:
95.With respect, I am not persuaded by Mr Wong’s submissions. I agree with Mr Man that these contentions are incorrect for the following reasons:
96.I therefore reject the applicant’s contentions under the Jurisdiction Issue. Insofar as the RWUCO is concerned, the CEIC is the primary decision maker in relation to the authorization of a proposed project, including the questions as to whether the proposed project is a DP and, if so, whether the requirements under the EIAO have been satisfied. 97.The second and third arguments can be dealt with together. 98.It is Mr Wong’s submissions that when all the relevant considerations are taken together, the court should either on its own as a primary decision maker conclude that the Project is a DP, or alternatively, should find that it is in any event Wednesbury unreasonable for the CEIC to conclude that the Project not a DP. 99.Before dealing with Mr Wong’s contentions, I will first look at the proper context for determining whether the Project should be regarded as a DP. 100.It is not disputed that under Item A1, the Project would be regarded as a DP if it is a “road” that “is an expressway, trunk road, primary distributor road or district distributor road including new roads, and major extensions or improvement to existing roads”. 101.As they are not further defined in the EIAO, it is both the applicant’s and the CEIC’s position (and hence common ground) that the respective meanings of “expressway”, “trunk road”, “primary distributor road” and “district distributor road” are the ones that are relevantly set out in the Transport Planning & Design Manual (“the TPDM”) issued by the TD as follows:
102.The applicant’s primary case is essentially this: the Section covers three sub-sub-sections in the Sam Shing – Tuen Hing sub-section of the road widening works which are clearly “district distributors”. In the premises, the Project by definition as a matter of law falls under the definition of DP under the EIAO. 103.The applicant elaborates its contentions as follows:
104.I am also not convinced by these submissions. 105.As set out in the TPDM, a “district distributor” road classification is one which falls under “urban road” system. On the other hand, if a road is classified as a “rural road”, there is no question of a “district distributor”. 106.In this respect, the HyD and the TD’s position is that the Castle Peak Road section to be widened under the Project (ie, the Section) as a whole should be classified as a “rural road”, and hence it does not constitute a DP. 107.It is unchallenged (and unchallengeable) evidence that, in essence, roads are classified with reference to different sets of road qualities including functions, characteristics and operational circumstances, which primarily hinge on the operation environment of a road. The operation environment of a road is the key determining factor in deciding its type[45]. Indeed, the applicant also accepts that the operation environment is an important factor to determine the road type[46]. 108.In this context, it is the TD’s evidence that after taking into account the operation environment of the Section (ie, the widening section of the Castle Peak Road – Castle Peak Bay of the Project), it formed the view that it should be regarded as “rural road” both before and after the completion of the Project. 109.Mr Wong Wai Man explains this at paragraphs 10 ‑ 14 of his affirmation as follows:
110.Further, Mr Wong Wai Man then explains that as the Project involves the entire Section, one should look at the entire Section to decide whether it is the type of road that comes within the scope of a DP. In relation to this, he explains that the Three Sub-sub-sections identified by the applicant to say to be “district distributors” only form a small part of the Project, and hence should not affect the road type classification of the Section[47]. The Three Sub-sub-sections are only about 110 m, 40 m and 325 m in length respectively, while the Section is about 1.9 km long. 111.The minor nature of the works to be carried out at the Three Sub‑sub‑sections (when compared with the entire Section) has been further elaborated by Lam Yat Ming, Philip, Chief Engineer of the HyD, at paragraphs 13 and 14 of his Affidavit:
112.Moreover, Mr Wong Wai Man has also clarified that in fact it was a mistake that the “Sam Shing – Hoi Wing Sub-sub-section” identified by the applicant was classified as a “district distributor” in the ATC for 2011 to 2014. Hence, the ATC for 2015 has since corrected the mistake and been properly designated as a “rural road”[48]. 113.In my view, for the following reasons, the applicant cannot challenge the TD’s classification of the Section as a “rural road” as unlawful or irrational. 114.It is common ground that the classification of the roads should be made in accordance with the criteria set out in the TPDM (which is issued by the TD) and the various factors as set out and explained in the TD’s evidence summarized in paragraph 107 above. As such, the classification itself is clearly a matter of, and involves, professional and multi-faceted technical judgment. 115.In the premises, for the proper classification of a road, the court (as well as the relevant decision maker) should defer to the view of the professional department or personnel unless it can be shown in that the professional view is one which is without any basis or Wednesbury unreasonable[49]. 116.In my view, the TD’s explanations as to the basis upon which it has classified the entire Section as a “rural road” notwithstanding that a small part of it (ie, the Three Sub-sub-sections) falls to be regarded as “district distributors” are well supported and clearly reasonable. In particular, the TD has looked at all the relevant criteria, and in particular the operation environment of the Section, before coming to that classification. In the circumstances, it certainly cannot be said to be a conclusion that no reasonable person in the position of the TD would have made[50]. 117.Mr Wong has also argued that the Section will become a “district distributor” after the completion of the Project given the “major extensions or improvements” made to the road segment by the various extensive works undertaken in the Project. However, whether the entire Section will become a “district distributor” or remain a “rural road” after the completion of the Project is still a professional classification to be made by reference to those factors summarized in paragraph 107 above. 118.For this, similarly, the TD has taken into account the particular function, characteristic and operation environment of the Section after the completion of the Project in classifying it still as “rural road”[51]. This cannot be regarded as Wednesbury unreasonable. 119.In the premises, it is neither unlawful or Wednesbury unreasonable for the CEIC to rely on the TD’s said classification of the Section and accept the EPD’s view that the Project is not a DP as it does not fall within any of the prescribed roads under Item A1. 120.Mr Wong has further raised a number of other submissions to support his contentions under this ground. I agree with Mr Man that these submissions are similarly without merit. 121.First, Mr Wong says the Section itself should be considered as a “district distributor” as it is located within the Tuen Mun New Town and serves one of the R(A) areas (ie, the densest residential zone) and a number of R(B) areas around the Castle Peak Bay and the “periphery” of the New Town. In support of this, the applicant for the first time in these proceedings relies on the Outline Zoning Plan for Tuen Mun No S/TM/33 (“OZP”) (and its explanatory statement)[52]. 122.However, as pointed out by Mr Man, this assertion of fact has not been specifically and properly pleaded in the Re-Amended Form 86. Although at its paragraph 40.1, there is a reference to the OZP, that is pleaded to specifically rebut the CEIC’s contention in the Initial Response at paragraph 3.15 that the Section from Sam Shing Street onwards only serves scattered low/medium density of residential and recreational developments. 123.That particular reference to the OZP as pleaded has nothing to do with the point now taken which raises a specific question of fact about the location of the Section concerning essentially matters of town planning involving determination of how the OZP and explanatory statement are to be read. 124.In the premises, I agree that the CEIC will suffer obvious prejudice if this new forensic point is allowed to be run because the CEIC does not have the chance to produce relevant evidence on this issue. The applicant therefore is not entitled to rely on the OZP to run this unpleaded specific point that the Section is located in a “new town” as designated in the OZP. 125.Alternatively, Mr Wong submits that the Section is a “district distributor” by looking at its operational environment, function and general design characteristics as:
126.Insofar as this alternative argument has to be premised upon and supported by the OZP (and its explanatory statement), for the same reasons stated above, the applicant is not entitled to rely on the OZP to run it. In any event, insofar as there is a difference in views between the TD and the applicant as to whether the Section is such road that “connecting smaller centres of population or popular recreation areas with major road networks” or “linking districts to the Primary Distributor Roads”, as I have emphasized above, this is a professional multi-faceted judgment. There is nothing that could show that the TD’s professional view is without any basis or irrational. I therefore do not accept Mr Wong’s contention that the TD’s view is plainly wrong. 127.Second, the applicant argues that the PER Report also supports her view that the Section does not include “rural road” at all. The air quality assessment therefore did not proceed on the basis of “rural road”[53]. 128.In relation to this, the CEIC has in evidence (through the HyD) explained in details the oversight on the part of the HyD’s consultant in omitting to make reference to rural roads in paragraph 3.7.5 and Table 3 - 5 of the PER Report[54]. These explanations of the oversight are backed and confirmed by the consultant in writing through correspondence. 129.In these circumstances, there is nothing that could materially or seriously challenge the veracity of the evidence given by Mr Lam on affirmation. I therefore reject Mr Wong’s submission that Mr Lam’s evidence is a post-facto attempt to “rationalize” the omission. I accept that the failure to refer to the Section or any part thereof as “rural roads” by the consultant in the PER Report is a result of an oversight. This therefore does not assist the applicant’s contention under this ground. 130.Third, “major extensions or improvements to existing roads” as provided under Item A1 is defined in Schedule 1 of the EIAO to mean “a physical addition, alteration or re-alignment to existing roads which results in an adverse environmental impact as defined the [TM]”. In relation to this, Mr Wong says Annex 3 of the TM provides a list of factors for consideration in identifying environmental impacts. In particular, says Mr Wong, emission, discharges or releases to the environment (including persistent or toxic chemical or noise) would be factors showing adverse environmental impacts. 131.In this respect, Mr Wong emphasizes that it is self-evident that the Project would cause adverse environmental impact because:
132.Premising on the above said adverse environmental impacts caused by the Project (at least with respect to noise and air quality impact), Mr Wong contends that both at the construction and operational phrases, the work under the Project ought to be considered as “major improvement” under Item A1. 133.I am unable to accept these submissions. 134.Mr Wong’s contentions amount to saying that so long as the Project has any degree (however small) of adverse impact by creating some noise and air pollution, then it ought to be treated as having an adverse environmental impact as defined in the TM (for the purpose of the definition of “major extensions or improvements to existing roads”) under Schedule 1 of the EIAO. 135.This however cannot be correct. As rightly submitted by Mr Man, if the applicant’s contentions are correct, the definition will become meaningless as any road works of the nature described in that definition will almost invariably be caught. This cannot be the legislative intent. 136.For all the above reasons, the applicant also fails under Ground 1. D4. Ground 2A 137.Given my above conclusions, I can deal with this ground quickly. 138.The applicant argues under this ground that the CEIC failed to properly discharge its Tameside duty with respect to:
139.In this respect, it is common ground that the relevant principles regarding Tameside duty are that:
140.In relation to the question of whether the Project is a DP, Mr Wong submits that as there was conflicting evidence at the time of the Decision (as identified by the applicant and summarized under Ground 1 above)[58] as to whether the Section should be classified as a rural road, no reasonable authority could have been satisfied on the basis of the inquiries made that it possessed the information necessary for its decision. The CEIC therefore failed in his duty to properly inquire into this question. 141.This contention is without merit. 142.The complaint relates to the extent and sufficiency of the inquiry made by the CEIC. This goes to the discretion of the CEIC and is only subject to a Wednesbury challenge[59]. 143.As I mentioned above, it is not Wednesbury unreasonable for the CEIC in a case like the present to rely on the professional view and judgment of the TD in classifying the road type of the Section. In particular, as explained by the TD, even if all the Three Sub-sub-sections pointed out by the applicant were “district distributors”, it would and should not affect the proper classification of the entire Section to be a rural road. 144.In the premises, I am not satisfied that the CEIC had failed to discharge its Tameside duty to properly inquire the question as to whether the Project was a DP. 145.In relation to the AQOs, the applicant’s complaint is that under the misapprehension that the applicable standard was still 1987 AQOs, the CEIC had not inquired into the same and blindly adopted the conclusions in the PER Report. The CEIC had therefore, says the applicant, failed to properly discharge its Tameside duty to properly inquire into this matter. 146.Given my above conclusion that it was correct and lawful for the CECI to refer to the 1987 AQOs in making the Decision, this complaint must similarly fail. 147.I will therefore also reject Ground 2A. E. CONCLUSION 148.The applicant fails in all her grounds of judicial review. I therefore dismiss her application. 149.I further make an order nisi that costs of this application be to the CEIC, to be taxed if not agreed, with certificate for two counsel. The applicant’s own costs is to be taxed in accordance with legal aid regulations. 150.Lastly, I thank counsel for their helpful assistance in this matter.
Mr Anson Wong SC, leading Mr Ernest Ng, instructed by Bond Ng Solicitors, assigned by Director of Legal Aid, for the applicant Mr Bernard Man SC, leading Mr Mike Lui, instructed by Department of Justice, for the respondent [1] See generally the Re-Amended Form 86 and the Affidavit of Lam Yat Ming, Philip. The background facts are in general not controversial. [2] See: the memo from the HyD to the TD dated 17 August 2010. [3] See: the memo from the TD to the HyD dated 23 August 2010. [4] See: the memo from the HyD to the EPD dated 30 August 2010. [5] See: (i) the memo from the EPD to the HyD dated 10 September 2010; (ii) the memo from the HyD to the EPD dated 27 September 2010; and (iii) the memo from the EPD to the HyD dated 6 October 2010. [6] The conduct of a PER is not an exercise statutorily required under the EIAO or any other legislation. However, it has for years been considered under Technical Circular (Works) No 13/2003 to be a best practice as an internal study which should be carried out to ensure that works projects proposed by the Government will not cause any significant adverse environmental impact in the relevant project areas. See: Affidavit of Lam Yat Ming, Philip, paragraph 19. [7] See: Memo from the HyD to the TD, Annex 4. [8] See: (i) the memo from the HyD to the TD dated 25 September 2012; and (ii) the memo from the TD to the HyD dated 26 September 2012. [9] See: (i) the email from the HyD to the TD dated 26 August 2013; and (ii) the email from the TD to the HyD dated 27 August 2013. [10] See: (i) the letter from the HyD’s consultant to (amongst others) the EPD, the AFCD and the PlanD dated 4 December 2013; and (ii) the letter from the HyD’s consultant to (amongst others) the EPD, the AFCD and the PlanD dated 24 December 2013. [11] See: the memo from the EPD to the HyD dated 27 December 2013. [12] See: (i) the letter from the AFCD to the HyD’s consultant dated 31 December 2013; and (ii) the email from the PlanD to the HyD’s consultant dated 31 December 2013. [13] In GN No 157. [14] See Affidavit of Lam Yat Ming, Philip, paragraph 40. [15] See paragraphs 35 - 47 of the Re-Amended Form 86. [16] See paragraphs 48 - 61 of the Re-Amended Form 86. [17] See paragraph 59.11 of the Re-Amended Form 86. [18] See paragraphs 62 - 75 of the Re-Amended Form 86. [19] Mr Man SC for the CEIC has initially objected to the applicant’s reliance on Ground 2B, which he says is an unpleaded ground of error of fact under Ground 2 (which is on the failure to discharge Tameside duty). However, after having clarified the real nature of the complaint made and the submissions advanced in support of it under Ground 2B by Mr Wong in court (which will be explained below), I think Ground 2B is in substance a complaint focused on Tameside duty, which can be said to be encompassed by the pleaded case, I would allow it to be run. [20] See: Secretary of State for Education and Science v Metropolitan Borough of Tameside [1977] AC 1014 at 1065 per Lord Diplock. [21] See also R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin), paragraphs 99 - 100 and 140 per Hallet LJ (as she then was). [22] See: Hong Kong Planning Standard and Guidelines (“the HKPSG”), Chapter 9, paragraph 3.1.1(b). Appendix 3.1 of the HKPSG corresponds with Schedule 5 of the APCO. [23] See: paragraph 1.1(a), Annex 4, TM [24] See: London Borough of Newham v Secretary of State for the Environment and another (1987) 53 P & CR 98, 104 and Jefferson v National Assembly for Wales and another [2008] 1 WLR 2193, at paragraphs 17, 30 - 31, 36 - 40 (and all the authorities referred thereto). See also De Smith’s Judicial Review (7th ed.) at paragraph 5-132. [25] See Affirmation of Chan Tak Chuen, paragraph 12. [26] See Affidavit of Lam Yat Ming, Philip, paragraph 37. [27] Unless for example it is so expressly provided in the relevant statutory amendments. [28] Cf: Leung Hon Wai v Director of Environmental Protection (HCAL 49/2012, 26 July 2013, Au J) at paragraph 168. [29] See: Plantagenet, supra, at paragraph 94 per Hallett LJ (as Her ladyship then was), quoting Lord Mustill in Doody v Secretary of State for the Home Dept [1994] 1 AC 531 at 560. [30] See for example: R v Secretary of State for the Environment, Transport and the Regions, ex p Alliance Against the Birmingham Northern Relief Road (unreported, QBCOF 98/1421/4, 23 March 1999, Lord Wolf MR, Aldous and Buxton LJJ) at pp 8 and 9 per Lord Woolf MR. [31] See paragraph 21 of the Affirmation of Wong Man Kee Johnson, which states: “Under the Code of Access to Information, EPD received two requests from a member of the public for the provision of copies of the PER report and a Review Report. Those requests were received on 8 July 2015 and 3 August 2015. Having obtained the consent from HyD, hardcopies of the full PER report, and extracts of the Review Report (with details of communication with affected residents removed) were provided to the requesting member of the public on 24 July 2015 and 24 August 2015 respectively.” See also paragraph 23 above. [32] See Affirmation of Chan Tak Chuen, paragraphs 11 and 12; Affidavit of Wong Man Kee Johnson, paragraph 28. [33] See paragraph 4.1.10(b)(ii). [34] See Re Caltex, p126:25 - 30. [35] See Re Caltex, pp127:15 ‑ 30 perSears J. [36] See: Affidavit of Wong Man Kee Johnson at paragraph 9. [37] The applicant appears to have read Wong Man Kee Johnson’s evidence to mean that the CEIC’s case is that the EPD has no role to advise on or certify proper classification of project. However, I agree with Mr Man that in Mr Wong Man Kee Johnson’s Affidavit at paragraph 23, clear evidence is given that the THB presented to the CEICthe views of the EPD on the Project being a non-designated project under the EIAO. In any event, the CEIC’s evidence is clear and undisputed that the EPD was consulted on how the Project should be classified, and it must be wrong to suggest that the EPD had no role to play in the classification of the Project in the present case. [38] See Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 469 at paragraph 84 per Tang VP; Ho Loy &Anor v Director of Environmental Protection (HCAL 21/2015, 22 December 2016) at paragraphs 55 ‑ 58 per Chow J. [39] Plan No 12151/GZ/102. [40] See: The ATC 2011 (TD, June 2012), Appendix J; The ATC 2012 (TD, June 2013), Appendix J; The ATC 2013 (TD, June 2014), Appendix J; The ATC 2014 (TD, August 2015), Appendix J. [41] See: See the plan itself and also the scheme at paragraph 2. [42] See: Appendix E of each year’s ATC: ATC 2011, Appendix C, pC-3; ATC 2012, Appendix C, pC-4; ATC 2013, Appendix C, pC-4; and ATC 2014, Appendix C, pC-4. [43] See: ATC 2011, Appendix C, pC-13; ATC 2012, Appendix C, pC-16; ATC 2013, Appendix C, pC-15; and ATC 2014, Appendix C, pC-16. [44] See: Initial Response at paragraph 3.15; Plan prepared by the TD. [45] See Affirmation of Wong Wai Man, at paragraph 9. Mr Wong is a Senior Engineer of the TD. [46] See the applicant’s skeleton at paragraph 30.4. [47] See Affirmation of Wong Wai Man, paragraph 19. See also: Affidavit of Lam Yat Ming, Philip, paragraph 34. [48] See Affirmation of Wong Wai Man, paragraph 20. [49] See again: Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD 469 at paragraph 84 perTang VP (as he then was), and Ho Loy v Director of Environmental Protection (HCAL 21/2015, 22 December 2016, Chow J) at paragraphs 55 - 58. [50] It is worthy to note that the applicant herself when arguing that the Section after completion of the Project should be regarded as a “major extensions or improvements” also similarly agree that the proper approach to make such determination is by reference to the Project “as a whole” instead of looking a particular items of the works at particular sections of the roads in isolation. See paragraph 43 of the Re-Amended Form 86. [51] See Wong Wai Man’s Affirmation at paragraph 14 as quoted above. [52] See the applicant’s skeleton, paragraph 30.5. [53] See: the applicant’s skeleton at paragraphs 30.8 - 30.11, and the specific reference to paragraph 3.7.5 and 3.7.11-12 and Table 3-5 of the PER Report. [54] See Lam Yat Ming Philip’s 1st Affirmation at paragraph 36; and his 2nd Affirmation at paragraphs 4 - 11. [55] Re-Amended Form 86, paragraph 57. [56] Re-Amended Form 86, paragraph 58. [57] See: Secretary of State for Education and Science v Tameside Metropolitan Borough Council, supra; and Plantagenet, supra. See also paragraphs 32 and 33 above. [58] Such as the ATCs, the internal correspondence between the departments, the PER Report summary and the OZP. [59] See the relevant principles summarized by the Court of Appeal in Deng Suet Yan v Hong Kong Housing Authority [2017] 4 HKLRD 73 at paragraph 19 citing Plantagenet, supra, at paragraph 100. | ||||||||||||||||||||||
Cases cited in this judgment