Koo Ting Yuen v. Director of Lands
Read the full judgment text of HCAL 1686/2020 on BabelCite. This High Court CFI judgment was delivered on 19 March 2021.
1. This is an application for leave to apply for judicial review of the decisions (“ the Decisions ”) of the Director of Lands (“ the Director ”) on 14 May 2015 to cancel or delete the “SC Survey Record” of 4 “Surveyed Squatter Structures” (“ the Structures ”) with SC Nos RTW/1A/85, RTW/1A/86, RTW/1A/87 and RTW/1A/89 (“ SC 85 ”, “ SC 86 ”, “ SC 87 ” and “ SC 89 ” respectively) situated at No 14, Ka Loon Tsuen, Tsing Lung Tau, Tsuen Wan, New Territories.
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HCAL 1686/2020 [2021] HKCFI 649 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1686 OF 2020 ________________________
________________ Before: Hon Chow J in Court Date of Hearing: 10 March 2021 Date of Decision: 19 March 2021 ___________________ D E C I S I O N ___________________ INTRODUCTION 1.This is an application for leave to apply for judicial review of the decisions (“the Decisions”) of the Director of Lands (“the Director”) on 14 May 2015 to cancel or delete the “SC Survey Record” of 4 “Surveyed Squatter Structures” (“the Structures”) with SC Nos RTW/1A/85, RTW/1A/86, RTW/1A/87 and RTW/1A/89 (“SC 85”, “SC 86”, “SC 87” and “SC 89” respectively) situated at No 14, Ka Loon Tsuen, Tsing Lung Tau, Tsuen Wan, New Territories. THE GOVERNMENT’S SQUATTER CONTROL POLICY 2.To assist understanding of the facts of the Applicant’s case, I shall first briefly describe the Government’s squatter control policy. 3.Squatter structures (寮屋) built on Government lands or on leased agricultural lots have existed in Hong Kong for a long time. The work of squatter control in Hong Kong was previously undertaken by the Housing Department. Since 1 April 2002, the squatter control function of the Housing Department in respect of urban areas and Island Districts was transferred to the Lands Department, while that in respect of the New Territories remained with the Housing Department. Since 1 April 2006, the squatter control function of the Housing Department was completely taken up by the Squatter Control Unit of the Lands Department. 4.In 1976, the Housing Department surveyed and registered all existing squatter structures in Hong Kong. This survey was updated in 1982 by the Housing Department, which conducted a territory-wide Squatter Control Freezing Survey of squatter structures illegally built on unleased and unallocated Government lands or leased agricultural lots. The purpose of the freezing survey was to register the existing squatter structures and record their locations, dimensions, building materials and use (“the SC Survey Record”). Each of the surveyed structures (“Surveyed Squatter Structure”) was assigned a squatter survey number (“SC No”). 5.Under the Government’s squatter control policy, Surveyed Squatter Structures are unauthorized temporary structures whose existence are tolerated for the time being until they cease to exist or are subject to clearance action taken by the Lands Department for development or environmental improvement reasons or for safety reasons, so long as the locations, dimensions, building materials and use of the Surveyed Squatter Structures remain the same as stated in the SC Survey Record. 6.In 1984/85, the Housing Department also conducted a Squatter Occupancy Survey for the purpose of registration of the occupants of those Surveyed Squatter Structures for domestic use. 7.In the pamphlet published by the Lands Department entitled “Squatter Control Policy on Surveyed Squatter Structures” (June 2020 edition), the Lands Department’s relevant policy is described as follows:
8.Pausing here, it should be noted that at the time of the Decisions, the Government’s squatter control policy could be found in a handbook issued by the Housing Department “寮屋區居民手冊” (2003 edition) produced as exhibit “CKK-2” to the Affirmation of Chan Kin Kau, Acting Manager of the Squatter Control (Kowloon, Tsuen Wan & Kwai Tsing) Office (“SCO”) of the Lands Department. The handbook set out similar restrictions on “building” and “repair” of a Surveyed Squatter Structure on Government land:
BASIC FACTS OF THE APPLICANT’S CASE 9.According to the Applicant, the Structures have been occupied by his family members in various capacities since the 1960s. The Structures were registered by the Lands Department as Surveyed Squatter Structures. 10.Apparently, by the 2014, the Structures became out of repair to such an extent that the roof had collapsed and the interior of the Structures was exposed to the weather, with a further risk of collapse of other parts of the Structures. On 21 October 2014, the Applicant’s son (“Wing Kit”) wrote to the Squatter Control Unit of the Lands Department to apply for permission to repair the Structures. In that letter, it was stated that the proposed works did not involve demolition or rebuilding, and would be carried out in conformity with the original size of the Structures. 11.The Lands Department carried out a site inspection on 20 November 2014. It is the Director’s case that during the inspection, Mr Liu Ki-wah (“Mr Liu”) of the Lands Department warned Mr Wong Yin Chan (“Mr Wong”), an occupant of the Structures, that prior approval was required before any repair works could be carried out. This is disputed by Mr Wong. There is no dispute, however, that the Lands Department never gave any formal approval of the proposed repair works. By a letter dated 23 December 2014, the Lands Department informed Wing Kit that his application would be passed to the District Lands Office/Tsuen Wan and Kwai Tsing for handling (in view of the fact that the Structures were formerly covered by Government Land Licence No W6686, which was granted to the Applicant’s father in the mid-1970s and cancelled on 31 August 1990). 12.Notwithstanding the absence of formal approval from the Lands Department, due to the urgency arising from the want of repairs of the Structures, Wing Kit went ahead with the repair works, which were carried out between November 2014 and April 2015, at the costs of about HK$600,000. The Applicant’s case is that during the said period, Mr Liu made numerous inspections of the Structures and the ongoing works, in the course of which Mr Liu:
These allegations are denied by the Director[2]. 13.On 14 April 2015, Mr Liu conducted a further site inspection and found that the Structures had been rebuilt into new structures which were not in conformity with the SC Survey Record in respect of the Structures. The following discrepancies were found:
The findings of Mr Liu are disputed by the Applicant. 14.On 14 May 2015, SCO issued 2 letters to the occupants of the Structures to cancel or delete the SC Survey Record of the Structures. APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW 15.By a Form 86 dated 14 August 2020, the Applicant applied for leave to apply for judicial review of the Director’s decisions contained in the aforesaid letters of 14 May 2015. Five grounds of judicial review are advanced in the Form 86, at §47:
THE DECISIONS ARE NOT AMENABLE TO JUDICIAL REVIEW 16.In Wong Ho Tong v Director of Lands [2018] HKCA 330, the Court of Appeal held that a decision of the Director to cancel the SC Survey Record of a Surveyed Squatter Structure is not amenable to judicial review:
17.Since the judgment of the Court of Appeal in Wong Ho Tong is directly applicable to the present case and is binding on this court, it follows that the present application for leave to apply for judicial review stands to be dismissed on the ground that the Decisions sought to be challenged are not amenable to judicial review. 18.At the hearing on 10 March 2021, Mr Pang argued that the present case was exceptional, because the Decisions were made in “bad faith”. In support of this argument, Mr Pang relied on §57(c) of the judgment of A Cheung J (as he then was) in Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215:
19.In my view, the Applicant is not entitled to argue that the Decisions were made in “bad faith”, because it is not a ground of judicial review raised in his Form 86. In any event, on the materials before the court, I fail to see any arguable basis for the Applicant to contend that the Director, or officers of the Lands Department, made the Decisions in bad faith. STANDING 20.The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates (Order 53, r 3(7) of the Rules of the High Court, Cap 4A). 21.Mr Pang argues that the Applicant has a sufficient interest because (i) he is an occupant of the Structures, and (ii) he paid for the aforesaid repair works. 22.In respect of the (i), the evidence before the court discloses that:
23.The above matters appear in the Affirmation of Chan Kin Kau, Acting Manager of SCO, filed on 10 December 2020. The Applicant did not dispute those matters in his 2nd Affirmation filed on 17 February 2021. It may therefore be thought that he does not dispute that he no longer resides in the Structures. However, at the hearing on 10 March 2021, Mr Pang informed the court, on instruction, that the Applicant had a divorce in 1998 and moved back to the Structures, and that the Structures are currently occupied by the Applicant, Wing Kit’s family (including his wife and 2 children), and Mr Wong and his partner (Madam Lee, being Wing Kit’s mother-in-law). On the other hand, the evidence before the court indicates that the Applicant had no direct dealings with the Lands Department in relation to the repairs works carried out between November 2014 and April 2015. 24.In respect of (ii), the relevant receipt for the repair works for the amount of HK$500,000 dated 1 May 2015 was issued to Wing Kit, instead of the Applicant. 25.If the Applicant is not, in fact, an occupant of the Structures, I do not consider that he has a sufficient interest in the matter to which the present application relates merely because he has, or might have, paid for the repair works. However, I am unable to make a definitive finding on whether the Applicant is currently an occupant of the Structures on the materials presently before the court. I would not therefore find against the Applicant on the issue of standing, save to note that there is a real issue on whether he has a sufficient interest to make the present leave application. THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IS SUBSTANTIALLY OUT OF TIME 26.An application for leave to apply for judicial review of a decision of a public authority must be made promptly and in any event within three months from the date when grounds for an application first arose (Order 53, r 4(1) of the Rules of the High Court). The Director made the Decisions on 14 May 2015. That was the date when grounds for an application to challenge the Decisions first arose, and the 3-month period for making an application for leave to apply for judicial review of the Decisions began to run as from that date. On behalf of the Applicant, Mr Pang submits that after the Decisions, the Applicant was in constant communication with the Lands Department with a view to having the matter resolved amicably. There were also letters from the Applicant’s solicitors (Messrs Ford Kwan & Co) to the Lands Department dated 2 October 2019 and 8 May 2020 respectively requesting the Director to review the Decisions. However, as this court stated in Nisa Azizan v Director of Immigration, HCAL 203/2015 (unreported, 15 April 2016), at §29: “An applicant cannot get around or avoid this time requirement by the device of asking the decision maker to ‘reconsider’ his decision by putting forward different arguments or providing additional information, still less by repeating the same arguments or relying on the same information previously advanced in support of the original application”. See also Lo Siu Lan v Hong Kong Housing Authority, CACV 378/2004 (unreported, 17 December 2004), at §39; Super Lion Enterprises Ltd v Commissioner of Rating and Valuation, HCAL 71/2005 (unreported, 6 October 2006), at §128; Martin Tao Ming Lee v Secretary for Civil Service, HCAL 82/2010 (unreported, 8 August 2011), at §8; and E T Investment Limited v Director of Health, HCAL 13/2015 (unreported, 3 February 2016), at §§17-18. 27.There has undoubtedly been delay in the present application. Where there has been delay in applying for leave to apply for judicial review, the court’s approach in deciding whether to grant an extension of time to the applicant to make the application is well established (see AW v Director of Immigration [2016] 2 HKC 393). The court should take into account the following non-exhaustive list of factors: (i) length of delay, (ii) explanation for the delay, (iii) merits of the substantive application, (iv) prejudice, and (v) whether any question of general public importance is raised in the application. (i) Length of delay 28.The delay in the present case is about 5 years. As stated by the Court of Appeal in AW, ante, at §37(3)(iii), “[w]here an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’… An Applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case”. (ii) Explanation for the delay 29.The explanation offered by Mr Pang, namely, that the Applicant was in communication with the Lands Department and wished to resolve the matter amicably, is not a good explanation for the delay. In Wong Ho Tong, ante, at §39, the Court of Appeal remarked: “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.” (iii) Substantive merits 30.When considering the merits of an intended application for judicial review in the context of determining whether to grant an extension of time to an applicant to apply for leave to apply for judicial review, the court is not required, and often is not in a position, to form a definitive view. All that is required is for the court to make a provisional assessment of the merits of the intended application. 31.In the present case, the Applicant’s main complaints are four-fold. First, the Applicant alleges that Mr Liu had, on behalf of the Director, given verbal and/or tacit approval of the repair works during his inspections of the Structures and on-going works between November 2014 and April 2015. This allegation raises a substantial dispute of facts which it is not possible to resolve at this stage. I would merely observe that the allegation is not supported by contemporaneous documentary evidence. In Wong Ho Tong, ante, at §67, the Court of Appeal made the following observation: “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.” That observation was made in the context of an allegation that an officer of the Lands Office had given an oral representation at a meeting with the applicant that she would be allowed to “rectify” the works which caused the cancellation of the SC Survey Record in that case, which would seem to be inconsistent with the Government’s squatter control policy. This observation is, I consider, equally apposite in the context of the present case. 32.Second, the Applicant disputes the findings of Mr Liu from the site inspection carried out on 14 April 2015 and the alleged discrepancies between those findings and the SC Survey Record in respect of the Structures. According to the Applicant, the discrepancies arose out a mistake of fact or confusion on the part of the Lands Department regarding the correct locations of SC 86 and SC 87[3]. My comments are as follows:
33.Third, the Applicant complains about inadequate reasons given by the Director for the Decisions. I have read the 2 decision letters, and consider that they are sufficient to enable the Applicant to understand the basis of the Decisions, namely, that the current dimensions, materials and use of the Structures were not in conformity with the SC Survey Record in respect of the Structures. Anyhow, I do not see that the Applicant has suffered any real prejudice arising from the alleged inadequate reasons. 34.Fourth, the Applicant argues that the Director, in making the Decisions, failed to take into account the fact that the Structures had been subsisting since the 1960s and had been in occupation by various persons, and were dilapidated and in urgent need of repairs to make them habitable again. It seems to me that these are discretionary matters for the Director, not the court, to consider. 35.Overall, leaving aside the question of amenability and standing, I am prepared to assume, in the Applicant’s favour, that the intended application for judicial review, in so far as it is based on the complaints mentioned in §§31 and 32 above, is reasonably arguable. However, I do not consider the merits of the intended application to be strong. (iv) Prejudice 36.Assuming that the Applicant is still an occupant of the Structures, the Decisions, if allowed to stand, will undoubtedly cause him prejudice. 37.On the other hand, the Director will also suffer prejudice if time is extended for the Applicant to make the present application for leave to apply for judicial review. As stated by the Court of Appeal in Wong Ho Tong, ante, at §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”. (v) No question of general public importance 38.The grounds of judicial review raised by the Applicant in his Form 86 (breach of legitimate expectation, inadequate reasons, failure to take into account relevant considerations, mistake of fact, and unreasonableness) are all facts specific. No questions of general public importance are raised in the intended application for judicial review. CONCLUSION 39.Having come to the view that the Decisions sought to be challenged by the Applicant are not amenable to judicial review, it is clear that the intended application for judicial review is not reasonably arguable and has no realistic prospect of success. In such circumstances, I would not be prepared to grant any extension of time to the Applicant to apply for leave to apply for judicial review. 40.Even if, contrary to my view, the Decisions are amenable to judicial review, there is still an issue on the Applicant’s standing to make the present application. The substantive merits of the intended application are not strong. The delay in the present case is very substantial, and there is no good explanation for the delay. Overall, I would decline to exercise my discretion to grant any extension of time to the Applicant to make the present application for leave to apply for judicial review. DISPOSITION 41.The application for leave to apply for judicial review is dismissed. 42.The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here. I consider that the Applicant should pay the costs of the Director in this case, because (i) the Director filed evidence and attended the inter-partes leave hearing pursuant to a Consent Summons dated 7 September 2020, and has provided substantial and helpful assistance to the court; (ii) the application has plainly no realistic prospect of success in view of the fact that the Decisions sought to be challenged are not amenable to judicial review, and (iii) the Applicant has substantially delayed in making the present application by 5 years. I make an order that the Applicant shall pay the Director’s costs of this application, including the costs of the hearing on 10 March 2021 and all reserved costs (if any), to be taxed if not agreed.
Mr Ronald Pang, instructed by Ford, Kwan & Co., for the Applicant Mr Mark Chan, DPGC (Ag.) of Department of Justice for the Putative Respondent [1] See §26 of the Form 86. [2] See §§34 and 38 of the Affirmation of Chan Kin Kau. [3] See §§39-43 of Mr Pang’s Skeleton Argument for the Applicant dated 2 March 2021. [4] On the Applicant’s own measurement, the size of SC 85 has become 23’ or 27’ (L) x 12’ (W): see Exhibit “KTY-12”. [5] On the Applicant’s own measurement, the size of SC 89 has become 25’ (L) x 16’ at one end and 5’at the other end (W): see Exhibit “KTY-12”. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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