Tang Chi Fai v. Director of Lands for and on behalf of Lands Department

HCAL 391/2019

[2019] HKCFI 2567

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 391 OF 2019

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D E C I S I O N

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1.This is an application for leave to appeal against this court’s order dated 21 August 2019 refusing to grant an extension of time to the Applicant to apply for leave to apply for judicial review, and dismissing his application for leave to apply for judicial review.

2.The test for deciding whether to grant leave to appeal under Section 14AA of the High Court Ordinance, Cap 4, is well established.  Leave to appeal shall not be granted unless (a) the appeal has a reasonable prospect of success, or (b) there is some other reason in the interest of justice why the appeal shall be heard.  For this purpose, reasonable prospects of success involve the notion that the prospects are more than “fanciful”, without having to be “probable” (see SMSE v KL [2009] 4 HKLRD 125, at paragraph 17 per Le Pichon JA).

3.The basic facts of this matter are set out in paragraphs 2 to 11 of the court’s written decision handed down on 21 August 2019 (“the Decision”), and shall not be repeated here.

4.Three grounds of appeal have been raised by Mr Hunter on behalf of the Applicant.  First, Mr Hunter argues that the court misapplied the principle of “conversion of a private law decision into a public law one”.  In essence, Mr Hunter’s complaint is that the court wrongly held that the decision of the Director of Lands to issue a notice to quit dated 18 December 2017 in relation to land occupied by the Applicant held under a short term tenancy granted by the Government was a private law decision not amenable to judicial review.  Mr Hunter argues that this is not a case where there is “mere presence of some public element” in the decision, but is one where there is/are “some additional public element(s) of sufficient weight … in the decision-making process” to render it a public law decision.  Even if one accepts that the Applicant’s “lard processing” plant on the land performs an important service to the community and its closure may bring about some adverse environmental consequences in Hong Kong, in determining whether a decision is a public law or private law one, the focus should, I believe, be on the nature of the decision rather than its consequence.  The decision in this case is, in substance and in fact, one where the Government as landlord decided to recover its land for its own use.  This is a classical private law decision.  The position is, I consider, plain and not capable of much elaboration.

5.Second, Mr Hunter argues that the court misapplied the principle of “neglect of a necessary consideration of an issue when making a public law decision”.  In essence, Mr Hunter’s argument is that if the decision was a public law decision, the Director was under an obligation to consider the “environmental consequences that the closing of the Applicant’s factory would cause”.  At paragraph 14 of the Decision, I stated that it was “a matter for the Director/Government to decide what (if any) weight ought to be given to the environment consequences, or alleged environmental consequences, arising from the closing down of the Applicant/Company’s lard processing operation on the Land”.  Even if one assumes (for the sake of argument) that the Director’s decision is a public law one, since this is not a case where there is a list of compulsory considerations, the weight which the Director may give to any factor is a matter for him to decide (subject only to Wednesbury challenge): see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037, and R (AL Rawl) v Foreign Secretary [2008] QB 289, at paragraph 131 per Laws JA.

6.Third, Mr Hunter complains about the court’s exercise of its discretion to refuse to admit late evidence, namely, a technical study concerning the Applicant’s operation and some newspaper reports.  The additional documents sought to be relied upon by the Applicant were simply put into the hearing bundles.  There was not even an affidavit to produce the documents.  Further, I did not consider that the documents assisted the Applicant’s application, and did not see why the court should exercise its discretion to admit them as evidence.  I do not consider this ground to be reasonably arguable.

7.In all, I do not consider the Applicant’s intended appeal has a reasonable prospect of success.  Neither do I consider that there is some other reason in the interest of justice why the appeal shall be heard.  Accordingly, the application for leave to appeal is dismissed.

Mr Rowan Hunter, instructed by Jal N Karbhari & Co, for the Applicant

The Putative Respondent, absent