丘龍生 v. 勞工及福利局局長羅致光

HCAL 875/2020

[2020] HKCFI 1499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 875 OF 2020

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BETWEEN

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D E C I S I O N

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INTRODUCTION

1.This is an application for leave to apply for judicial review of (inter alia) the decision of the Secretary for Development to carry out the first phase clearance (“the First Phase Clearance”) of Dills Corner Garden at the end of June 2020 as part of the Government’s implementation of the project for the development of the North East New Territories New Development Areas (“the New Development Areas”).  There is also an application before the court for an interim stay of the First Phase Clearance pending the determination of the substantive application for judicial review.

BASIC FACTS

2.In view of the urgency of these applications, I shall give a brief ruling on them.

3.The Government’s decision to implement the development of the New Development Areas was first announced in around 2013.  The proposed development comprises the Kwu Tung North New Development Area and the Fanling North New Development Area.  Dills Corner Garden falls within the Kwu Tung North New Development Area.

4.As stated in the background brief prepared by the Secretariat of the Legislative Council for the meeting of the Panel on Welfare Services on 14 April 2014 (LC Paper No. CB(2) 1255/13-14(09)), Dills Corner Garden was a former military married officers’ camp in Sheung Shui, North District, with a site area of about 32,600 m².  After the closure of the camp, it came under the management and arrangement of short-term tenancy by the Government Property Agency.  There were at that time a total of 16 private residential care homes for the elderly (“the Residential Care Homes”) at Dills Corner Garden operated by 11 licensed operators, providing a total of 1,120 places for elderly persons.  As at the end of January 2014, there were some 970 residents living in the Residential Care Homes.  Since Dills Corner Garden was located on the south of the proposed Kwu Tung railway station (approximately some 500 m from it), which formed an important part of the New Development Areas’ future town centre, it was necessary to include Dills Corner Garden into the boundary of the advance works of the Kwu Tung North New Development Area.

5.In 2014, the Government decided that:

(1)  The clearance of the Dills Corner Garden site would be carried out in two phases (“the Two-Phase Plan”), with the first to take place in 2018 and the second in 2023, with a view to limiting the number of Residential Care Homes being affected by the First Phase Clearance.

(2)  In the meantime, the Government would be looking for a site in the vicinity of Dills Corner Garden to construct a purpose-built complex of contract homes (“the New Complex”) with sufficient places to accommodate all elderly residents at Dills Corner Garden.

(3)  Every effort would be made to expedite the construction of the New Complex, which was expected to commence service in 2023.  Residents affected by the First Phase Clearance would be moved to other private Residential Care Homes at Dills Corner Garden or elsewhere, depending on their wishes.

(4)  After the commissioning of the New Complex and before the second phase clearance, residents of the Residential Care Homes (including those affected by the First Phase Clearance) would be moved to the New Complex.

6.After taking into account the views expressed by the operators of the Residential Care Homes, the Government has made certain revisions to improve the Two-Phase Plan, including:

(1)  The scope of the First Phase Clearance has been narrowed down to cover only 3 blocks of Residential Care Homes affecting some 150 residents (from 8 blocks affecting some 300 residents).

(2)  Special arrangement has been made for the early departure of the existing government users from Block 3 and Unit C of Block 17 at Dills Corner Garden so that the spaces vacated by the government users will become available for the operators to accommodate the residents affected by the First Phase Clearance.  In particular –

(a)  Block 3 has been leased to an existing operator (Vast Honour Limited) affected by the First Phase Clearance, thereby creating 35 additional residential places in a newly licensed residential care home in Block 3;

(b)  Unit 17C will be leased to an existing operator (St Francis Old Age Home, “St Francis”) for storage purposes, thus allowing that operator to optimise the use of the floor space in its existing Residential Care Home.

(3)  The Government will also adopt special construction methods (which are more expensive and environmentally friendly) to minimise the nuisance and disturbance which may be caused by the demolition works during the First Phase Clearance.  In addition, for the construction works of the new public transport interchange (see below), the Government will require the contractors to implement suitable mitigation measures and closely monitor the environmental impact of the construction works, and control the nuisance and disturbance which may be caused by the works to the remaining residents at Dills Corner Garden.

7.Although the timing of the First Phase Clearance has been delayed, it is the Government’s position that it must be conducted before the completion of the New Complex in 2023, because:

(1)  The northern part of the Dills Corner Garden site is situated immediately to the south of the proposed Kwu Tung railway station, and falls within an area zoned “Other Specified Uses” annotated “Commercial/Residential Development with Public Transport Interchange” on which the only public transport interchange for the Kwu Tung North New Development Area is planned to be built by 2025.

(2)  The punctual completion of the public transport interchange by 2025 is essential to serve the first population intake of the Kwu Tung North New Development Area before the proposed Kwu Tung railway station can be put into service in 2027.

(3)  It is estimated that the first population intake of the Kwu Tung North New Development Area will comprise about 4,300 units or 10,900 residents, and they are expected to move in around 2025 to 2026.

(4)  It is essential that the public transport interchange can be completed in time to avoid major adverse impact on the first population intake of the Kwu Tung North New Development Area as well as the existing population of Kwu Tung North.

(5)  Taking into account the time required for the construction of the public transport interchange, the First Phase Clearance must be conducted prior to 2023.

8.Further, with a view to meeting the Government’s target of providing lands with a capacity to produce 12,900 private housing units in 2020-21, the “OU” Site (including the area covered by the First Phase Clearance) has been included in the Government’s 2020-21 land disposal programme[1]. For this purpose, it is essential that the area covered by the First Phase Clearance be handed over to the general contractor for clearance in early July 2020 so that a cleared site will be available to the Lands Department in early February 2021 for sale.

9.On 27 January 2019, the Government announced that the First Phase Clearance would commence in the first half of 2020.

10.The Applicant is 61 years of age.  He moved into St Francis Old Age Home in November 2018.  He is currently living in Block 21 at Dills Corner Garden, which is affected by the First Phase Clearance.

11.On 23 October 2019, the Social Welfare Department delivered a letter dated 3 October 2019 (“the Notification Letter”) to the Applicant in person, informing him of the following matters:

(1)  The First Phase Clearance would commence in the second quarter of 2020.

(2)  For the residents affected by the First Phase Clearance, the Government would make arrangements for them to move into one of the Residential Care Homes not affected by the First Phase Clearance.

(3)  Whether or not an affected resident chose to stay in a Residential Care Home at Dills Corner Garden, he or she would be eligible to move into one of the residential care homes in the New Complex after its commission in 2023.

12.The Social Welfare Department has assigned a social worker to each of the residents affected by the First Phase Clearance to assist him/her in relation to their needs and wishes, and to explain to them the options and assistance available to them.  Mr Frankie Chu, the social worker assigned to assist the Applicant, visited him on 18 December 2019 and 16 April 2020 to discuss his relocation options.  During those visits, the Applicant expressed his wish to move into a Residential Care Home operated by St Francis at Dills Corner Garden, and indicated that he would not apply for subsidized residential care service because he had applied, and was waiting, for public rental housing.  In accordance with his wish, St Francis has arranged for him to move to the remaining portion of St Francis not affected by the First Phase Clearance, namely, Block 15 (Unit A), Block 17 (Units A, B or D), or Block 19 (Units A or B).  These blocks are adjacent to or just a few blocks away from Block 21 in which the Applicant currently resides.  I have been told today that the Applicant will be moving to Block 17A at the end of July 2020 (which is only 2 blocks away from Block 21) should the current application for interim stay be refused.

13.On 28 February 2020, the Government Property Agency issued a notice of termination to St Francis in respect of its short-term tenancy of Units A and B of Blocks 17, 19 and 21, Dills Corner Garden on 30 June 2020[2]. In that letter, the Government Property Agency also informed St Francis that the Government was prepared to offer a new tenancy in respect of Units A and B of Blocks 17 and 19 for a term commencing from 1 July 2020 to 31 October 2020.

14.On 17 March 2020, the Social Welfare Department issued a letter to the Applicant informing him that the First Phase Clearance would affect the residential care home in which he was residing, and a notice of termination of the relevant tenancy had been issued by the Government Property Agency to St Francis requiring it to move out on or before 30 June 2020.  The Applicant was also informed that St Francis would discuss with him about the arrangement for him to move out of his current accommodation.

15.In passing, I should mention that, according to the Government, there are a total of 150 residents who will be affected by the First Phase Clearance.  143 of them will need relocation arrangements to the remaining Residential Care Homes at Dills Corner Garden, 5 have passed away, and 2 have decided to move elsewhere.  Of the said 143 affected residents:

(1)  118 will be relocated to Residential Care Homes operated by the same operators at Dills Corner Garden in accordance with their preferences.  They will therefore be able to maintain their existing social networks and will be cared by staff members engaged by the same operators after relocation.

(2)  The remaining 25 are residents of Beautiful Life (Sheung Shui) Age Home, which has only 9 vacant places in Dills Corner Garden not affected by the First Phase Clearance.  Accordingly, 16 of them will need to be relocated to other Residential Care Homes at Dills Corner Garden not operated by Beautiful Life (Sheung Shui) Age Home.

APPLICATION FOR JUDICIAL REVIEW

16.On 11 May 2020, the Applicant filed a home-made Form 86 to apply for leave to apply for judicial review to challenge an (alleged) decision of the Social Welfare Department to require him to move out of St Francis and to close/demolish St Francis’ Old Age Home.  The Applicant also sought an interim stay of the proposed First Phase Clearance on 30 June 2020 by the Development Bureau.

17.On 12 May 2020, the court directed the applications for (i) leave to apply for judicial review, and (ii) interim stay, to be heard on 8 June 2020.

18.On 1 June 2020, Ho Tse Wai & Partners filed a Notice to Act on behalf of the Applicant.

19.On 2 June 2020, Ho Tse Wai & Partners and the Department of Justice made a joint application to adjourn the hearing scheduled for 8 June 2020 to 19 June 2020 (with 3 hours reserved).  The joint application was approved by the court on 4 June 2020.

20.On 5 June 2020, Ho Tse Wai & Partners gave notice of intention to amend the Form 86.  The draft Amended Form 86 involved a complete re-writing of the original Form 86.  By the draft Amended Form 86, the Applicant seeks to challenge the following decisions (collectively “the Decisions”):

(1)  The decision of the Director of Social Welfare dated 17 March 2020 to require the Applicant to move out of St Francis (“the DSW’s Decision”).

(2)  The decision of the Secretary for Labour and Welfare to carry out the First Phase Clearance at the end of June 2020 and/or prior to the “seamless transition of the elderly persons” at the Residential Care Homes at Dills Corner Garden into the New Complex (the SLW’s Decision”).

(3)  The decision of the Secretary for Development to carry out the First Phase Clearance at the end of June 2020 and/or prior to the “seamless transition of the elderly persons” at the Residential Care Homes at Dills Corner Garden into the New Complex (“the SD’s Decision”).

21.In the draft Amended Form 86, the following grounds of judicial review are raised:

(1)  The Decisions are unconstitutional in that they violate the Applicants’ rights under BL 28, 29[3], 36, 39 and 145 and/or HKBOR 2(1) and 14.

(2)  The Government has failed to take into account the Applicant’s substantive legitimate expectation.

(3)  The Government conducted insufficient inquiries in making the Decisions.

(4)  The Government has failed to take into account relevant and material factors in making the Decisions.

(5)  The Decisions are irrational.

22.The applications for leave to apply for judicial review and for interim stay came before this court on 19 June 2020.  They went part-heard, and were adjourned to today.

THE CHALLENGE TO THE DSW’S DECISION

23.The challenge to the DSW’s Decision is, in my view, misconceived, because:

(1)  the Director of Social Welfare has no power to require the Applicant to move out of St Francis, that being a private contractual arrangement between the Applicant and St Francis;

(2)  the Social Welfare Department’s letter dated 17 March 2020 did not purport to exercise any power to require the Applicant to move out of St Francis - it merely informed the Applicant that St Francis’ tenancy would be terminated on 30 June 2020, and St Francis would discuss with him about the arrangement for him to move out of his existing accommodation; and

(3)  in any event, it is clear on the evidence that the Applicant will not be required to move out of “St Francis Old Age Home”, in that an arrangement has been made for him to move into another block at Dills Corner Garden also operated by St Francis.

THE CHALLENGE TO THE SLW’S DECISION

24.The challenge to the SLW’s decision is, in my view, also misconceived, because it is clear that the Secretary for Labour and Welfare did not make any decision to carry out the First Phase Clearance.  That decision was made by the Secretary for Development.

THE CHALLENGE TO THE SD’S DECISION

25.Under Ground 1, the Applicant relies on (i) the right to life (BL 28 and HKBOR 2), (ii) the rights to privacy, family and home (BL 29 and HKBOR 14), and (iii) the right to social welfare (BL 36 and BL 145).

26.The Applicant’s reliance on (i) the right to life, and (ii) the right to social welfare can be disposed of shortly.  In so far as the right to life is concerned, there is simply no basis, or evidence, to show that requiring the Applicant to move from Block 21 to Block 17, both operated by St Francis, at Dills Corner Garden will pose any “real and immediate” risk[4] to his life.  In this regard, it would appear that the Applicant enjoys reasonable health conditions - he is mobile and able to walk unaided, and is able to take care of his daily living activities without assistance - save that he is suffering from diabetes and some knee pain[5].  The Applicant’s complaint that the transfer arrangements under the First Phase Clearance are badly managed is neither here nor there.

27.I am also unable to see how the Applicant’s right to social welfare under BL 36 and BL 145 (if any) is interfered with merely because he is required him to move from Block 21 to Block 17 for a period of time prior to his admission to the New Complex.  The Applicant is currently a recipient of CSSA, and he will continue to receive CSSA after his move to Block 17.

28.In relation to the Applicant’s reliance on the rights to privacy, family and home, I shall assume in the Applicant’s favour that such rights are engaged.  I consider it to be clear, however, that the interference of such rights satisfies the 4-step proportionality test:

(1)  The decision to carry out the First Phase Clearance pursues the legitimate aims of (i) provision of housing (both private and public) to address the acute housing demand in Hong Kong, and (ii) the transport needs of the residents and visitors of Kwu Tung North New Development Area (both current and future).

(2)  The impugned measure is rationally connected to those aims.

(3)  The impugned measure is not “manifestly without reasonable foundation”, being the appropriate standard of review to be adopted having regard to the nature of the decision under challenge, namely, the allocation of limited public resources (land) and the balancing of competing public interests (in particular the housing needs of the general public of Hong Kong).

(4)  The impugned measure strikes a reasonable balance between the societal benefits of the encroachment and the interference with the Applicant’s rights, and will not result in any unacceptably harsh burden on the Applicant (which Ms Ng has identified as the distress and inconvenience of having to move twice within a period of about 3 years, the interruption of his company with his existing room-mates and care by the care-takers, as well as the change to his living environment), having regard to the alternative arrangement which has been made for him to move into another block of the residential care home operated by the same operator at Dills Corner Garden.

29.The Applicant also complains that the interference with his rights is not “prescribed by law”.  It is important to note, however, that the decision to require the Applicant to move out of Block 21 is a decision of the operator, St Francis.  That decision is in turn the consequence of the Government’s decision to terminate the relevant tenancy of St Francis, which is not being challenged in this application.  In any event, it is trite that, generally speaking, an exercise of power by the Government as landlord to recover its land is not amenable to judicial review.  There is, so far as I can see, no basis to contend that the Government’s decision to terminate St Francis’ tenancy is not prescribed by law.

30.Under Ground 2, the Applicant contends that he is entitled to a substantive legitimate expectation that:

(1)  the Government would adopt a “people-oriented” approach and act in the best interests of the elderly, and put the well-being and interests of the elderly at top priority, and respect the wishes of the elderly and would not give up on any one of the elderly persons;

(2)  the Government would use its best effort to reduce the number of blocks and elderly residents affected by the First Phase Clearance and minimise to the furthest extent the impact on the elderly persons;

(3)  unless it was absolutely necessary for the location to be used for the First Phase Clearance of the North East New Territories New Development Areas, the Government would not demolish it; and

(4)  the Government would exercise its best endeavours to complete the construction of the New Complex to allow the elderly persons residing at Dills Corner Garden to directly move into the New Complex, to achieve a smooth and seamless transition[6].

31.I do not propose to set out the various public statements made by Government officials relating to the clearance of Dills Corner Garden and the construction of the New Complex relied upon by the Applicant, which are fully set out in §§4 and 11 to 34 of the draft Amended Form 86.  It is clear, from a fair reading of the various public statements made by Government officials that it has always been the Government’s position that there would be a First Phase Clearance and that the residents of the Residential Care Homes affected thereby would have to move out of their existing accommodation for a period of time prior to them being admitted to the New Complex.  Thus, the Applicant cannot have any legitimate expectation that there will be a “seamless transition” of the elderly persons residing at the Residential Care Homes at Dills Corner Garden to the New Complex.  The other matters referred to in §30 above are general or unspecific, and cannot give rise to any substantive legitimate expectation.  I would add that the precise scope, timing and arrangement of the First Phase Clearance are matters for the Government, and do not constitute grounds for judicial review.

32.Grounds 3 to 5 can be taken together, and are different ways of attacking the rationality, or reasonableness in the Wednesbury sense, of the SD’s Decision.  Having reached the conclusion that the Applicant has failed to make good his constitutional challenge to the SD’s Decision, I consider that the normal Wednesbury standard is applicable.  For an application for judicial review under this ground, it is no part of the court’s function to carry out a merits review of the relevant decision, or impose on the decision-maker any particular inquiries that he must undertake.  Further, unless the decision-maker has, in making the relevant decision, taken into account matters which by law he is not entitled to take into account, or failed to take into account matters which by law he must take into account, it is for the decision-maker, in his discretionary judgment, to decide what factors to take into account and what weight to give to such factors.  As earlier mentioned, the precise scope, timing and arrangement of the First Phase Clearance are matters for the Government.  The applicant’s reliance on various articles of the ICESCR (namely, ICESCR 10, 11(1) and 12) is misplaced, having regard to Ms Ng’s acceptance that the relevant rights have not been “domesticated”.  They do not give rise to any enforceable rights, or any legitimate expectation.  Neither are they mandatory considerations which the Secretary for Development is required to take into account when deciding to carry out the First Phase Clearance.  Taking into account the competing general public interests involved (in particular the housing needs of the general public in Hong Kong), I do not consider that the Secretary for Development’s decision to carry out the First Phase Clearance at the end of June 2020 under the current arrangement is Wednesbury unreasonable.

DISPOSITION

33.For the forgoing reasons, I am of the view that the intended application for judicial review is not reasonably arguable, and does not have a realistic prospect of success.  That being the view that I have reached, it is not necessary for me to consider the question of delay.

34.The applications for leave to apply for judicial review and for interim relief, as well as the application to amend the Form 86, are dismissed, with costs to the Putative Respondent and Putative Interested Party, to be taxed if not agreed.

35.Finally, it remains for me to thank counsel for their clear and cogent submissions, which have enabled me to deal with the present applications expeditiously.

Ms Senia Ng, instructed by Ho Tse Wai & Partners, for the Applicant

Ms Catrina Lam and Ms Cherry Xu, instructed by Department of Justice, for the Putative Respondent and the Putative Interested Party