Wong Kar Mau Bernard v. Commissioner for Heritage’s Office

HCAL 1222/2021

[2021] HKCFI 3582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1222 OF 2021

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BETWEEN

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Before:  Hon Coleman J in Court

Date of Hearing:  25 November 2021

Date of Decision:  29 November 2021

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D E C I S I O N

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A.  Introduction

1.In an effort to put Government-owned historic buildings into good re-use, the Commissioner for Heritage’s Office has implemented the Revitalising Historic Buildings Through Partnership Scheme (“Scheme”).  Suitable historic buildings were identified and Non-profit-making organisations (“NPOs”)  are invited to submit proposed projects of how to revitalise these buildings.  The selected entry will be funded by the Government.

2.The applicant is the managing director of Brighter Future Charitable Foundation Ltd, one of the NPOs which submitted an entry to the Scheme, in Batch VI.  The proposed project is to revitalize a building known as Homi Villa, by running it as a museum.  Though, of course, the applicant and his NPO company are separate legal entities, I shall for convenience refer to the applicant as the entrant in the Scheme (but see further, below).

3.The selection is a two-round process conducted by the Advisory Committee on Built Heritage Conservation.  The applicant submitted his entry in January 2021.  In late May 2021, he heard from an unofficial source that his entry did not make it into the second round.  From there ensued a series of communications between the Committee and the applicant.  The applicant demanded an official result of the first round, the scores of his entry and an explanation as to why his entry failed to make the second round.  These requests were rejected by Committee/Commissioner, which is only willing to release the final result and the applicant’s scores around April 2022 when the entire selection process is completed.

4.The applicant acts in person.  He did not clearly identify the decision the subject of the intended judicial review in his Form 86.  But the relief he sought in the Form 86 is the official announcement of the first round result and an “explanation” (ie. reasons)  why his entry failed to make the second round.  Though there is a little confusion on this point (see below), the applicant originally stated in his affirmation that he does not wish to challenge the “final decision” of the Committee.  Therefore, it seems that the decision he seeks primarily to challenge is the Commissioner/Committee’s refusal to announce the first round result and the refusal to give reasons for his presumed failure at the first round, instead of the first round result itself.

5.However, the applicant’s evidence and his oral submissions demonstrate the applicant’s confidence in his entry.  As he put it, he is himself quite sure that his entry meets all the requirements.  He also accuses the Commissioner/Committee of procedural impropriety in the deliberation processing leading to the first round result.  These points would suggest that the applicant also intends to challenge the first round result itself.  For the applicant’s benefit, I will assume that he intends to challenge both (a) the first round result and (b) the refusal officially to announce the first round result and to give reasons for it.

6.I directed an inter partes leave hearing which was held on 25 November 2021.  The applicant appeared in person, and assisted the Court with his courteous and succinct submissions.  The Commissioner was represented by Mr Edward Chik, Government Counsel of the Department of Justice (“DoJ”), who had also provided a helpful written skeleton argument.

B.  Background Facts

7.Details about the selection process and how applicants would be notified of the result are provided in a guidebook known as the “Revitalising Historic Buildings Through Partnership Scheme Guide to Application” (“Guide”).  The Guide sets out the assessment criteria (there are 5 in total)  in the selection process.

8.The Scheme has been run for several years and different batches of the historic buildings were identified over the years. The Guide has been revised along the way.  Pertinent to the current application is the amendment to §2.6.1 of the Guide:

(a)  §2.6.1 of the Guide for the Batch I of historic buildings provided as follows (emphasis added):

Applicants will be notified of the outcome of the first round selection after deliberation has been completed by [the Committee].

(b)  By the time of the material Batch VI, §2.6.1 had been revised as follows, to delete the qualifier “of the first round selection” after “outcome”:

Applicants will be notified of the outcome after the [Committee] has completed its deliberation and assessment”.

9.Under both versions of the Guide, only applicants successfully making it into the second round would perhaps be required to take further action, be it the submission of further information and/or attending interviews.  This is presumably how the applicant learned of or came to the view that his project did not pass the first round.  Indeed, he said he had revisited the premises and there met representatives of some of the four entrants (from the original number of 11 entrants)  who appeared to have been invited to proceed further.

10.The Commissioner insisted that under the current arrangement – as stated in the revised Guide – there would only be one announcement at the end of the entire selection procession.  There would be no separate announcement for the result of the first round.  At the end of the entire process (about April 2022), all applicants, including the applicant (or the NPO of which he is a director)  would be notified of the ultimate result and be given the scores of their entries.  But the applicant, believing that the first round had been completed in May 2021, requested the result of the first round be announced and reasons for his failure be given.

11.As stated, the applicant firmly believes that his project had been specifically designed to suit the 5 assessment criteria and he has no clue as to why his project failed the first round.  He believed that entries should have been scored in the first round and the Committee must have had some sort of deliberation process which was recorded in some forms.  He says that not disclosing the scores or the deliberation process as recorded is unfair.  Alternatively, if no such scoring or deliberation records exist, this would suggest that the first round result was arbitrary, predetermined and was reached without proper procedure.

12.The Committee did not deny that, by then, the first round assessment had already been done.  However, it said that the “scores had not been finalized” at that stage and the assessment would continue.  The applicant queried, since his entry already failed at the first round, why the scores would be further revised or it be further assessed.

C.  Grounds of Intended Review

13.In his Form 86, the applicant identified the following grounds (filled in the box for the decision the subject of intended review): (i) procedural unfairness, failing the doctrine of natural justice; (ii) failing of giving the result and explanation of the result of first round of assessment; and (iii) failing the doctrine of promissory estoppel.

14.At §12 of his supporting affirmation, he summarized his grounds as: (i) procedural unfairness – a closed door selection process with arbitrariness, a breach of natural justice; (ii) unreasonableness – refusal to provide explanation and the delay in providing result of the competition; (iii) in breach of doctrine of promissory estoppel; and (iv) in breach of doctrine of legitimate expectation.  In §§10-11 of the same affirmation, he also said that by the time when the first round result is released in April 2022 (together with the ultimate result), the successful applicant would already have started investing in the winning project which would make judicial review against the Committee’s decision more difficult if the applicant so wishes.  Orally, he also expressed the concern that he might later be barred by the provisions of Order 53 from challenging the result of the first round, if he has to wait until after the completion of the process in April 2022.

15.In an “Annex” to the affirmation titled “grounds of support of my application concerning the Batch VI Revitalization Scheme – Homi Villa”, the applicant said that “I have no intention to challenge the final decision, but I will appreciate appropriate review about the fairness and also any bias in making the decision”.

16.Drawing strands from all documents before the Court, I believe it is fair to summarise his intended grounds as follows:

(1)  he has a legitimate expectation that the first round result would be officially announced and the announcement be made upon the completion of the first round assessment instead of waiting until the completion of the entire selection process;

(2)  it is unreasonable not to give some sort of reasons such as or including his scores under the assessment criteria at the first round;

(3)  it is unreasonable to delay giving the first round result and reasons/scores until the entire selection process is done, because by then the successful applicant would have invested in developing its project which makes overturning the first round result/or final result more difficult; and

(4)  if no such first round scores or reasons for his failure exist, the first round assessment is arbitrary, predetermined and unreasonable.

17.However, during his oral submissions, the applicant sought to raise the additional point of ‘apparent bias’.  His suggestion was that it appeared likely from what he had heard that the entrant which would be selected for the Scheme has some connection with the chairman of the Committee.

D.  Is there merit in the intended grounds of review?

D.1  Preliminary Point

18.By way of a preliminary point, I would state that I am wholly satisfied that the applicant is motivated by what he sees to be in the best public interest, and that he is not bringing this application for his own ‘personal’ interest.  I also accept that the applicant sees his entry in the Scheme as being firmly for the benefit of the public interest, hence his concern that the entry should be properly considered.

19.The Commissioner advanced three grounds to oppose leave: (1) the applicant lacks standing in the current application, (2) the application is premature, given that no final decision of the Scheme has been made, and (3) there is no procedural unfairness because all projects submitted for the Scheme are considered by the properly constituted Committee based on the 5 assessment criteria as stated in the Guide.

D.2  Standing

20.Orally, Mr Chik did not really press the point on standing.  This is understandable.  The applicant and his wife are the two directors of the NPO which is the actual applicant of the Scheme.  Even if it is the NPO, not its director, which has the direct standing to seek leave for judicial review, the applicant has a clear interest.  He is in control of and a driving force behind the NPO, and if he is now suing in the wrong capacity it is only because of his ignorance of the law.  As Mr Chik accepted, this mistake could be readily cured.

D.3  Prematurity

21.The prematurity argument assumes the impugned decision of the intended review is the first round result.  Mr Chik submits that the first round result is an interim decision since no ultimate winner has been produced yet, because there is still the second round.  The applicant’s reply is that, for him/the NPO and the other applicants who are in effect “knocked out” at the first round, the first round result is not interim but finally dispositive; there will be no second round for them.

22.It is only natural for the applicant to focus on his own entry.  But the decision tasked with the decision maker, the Committee, is not to determine whether a specific entry should win but to choose an ultimate winner from among all entrants.  The elimination of entries round by round are the steps by which the ultimate decision is made.  The first round result is thus interim in nature in the context of the decision tasked with the Committee, even if the entries eliminated in the first round have no possibility of being revisited. As shown in Mr Chik’s Skeleton Submissions, the Committee seem to take the view that it is possible for entries eliminated in the first round to be re-scored or re-visited, but that is neither here nor there.

23.I agree with Mr Chik that the current leave application is premature because the Committee has not yet selected the winner for the Scheme.  This is sufficient to dispose of the leave application if the impugned decision is the first round result.

24.Even if the impugned decision is the refusal officially to announce the first round result and the refusal to give reasons/scores for the entries apparently eliminated at this stage, the leave application still fails to show any reasonably arguable grounds of review.

25.The Commissioner does intend to announce the result next year when the entire selection process is completed and to provide the applicant with his scores in the assessment process.  It is only a matter of time.

26.As to any concern that awaiting the final decision and the provision of reasoning will somehow be too late for the applicant to mount any further challenge, Mr Chik confirmed that the Commissioner could not have it both ways.  Once the Commissioner says that no actual decision is made until (as anticipated)  April 2022, the applicant cannot be criticised for not acting before that.

27.Perhaps relevant to the prematurity point is the suggestion of a legitimate expectation that the first round result will be separately announced at any time sooner than the completion of the entire selection process. However, under the latest and applicable version of the Guide, it is not arguable that the applicant has any such legitimate expectation.  It is well settled that legitimate expectation requires a clear and unambiguous promise, representation, practice or policy.  Whilst I understand the applicant’s point that there could be said to be some degree of ambiguity in their being a two-stage process, but only one decision announcement, I think that the Guide in its current version states with some clarity when the (only and final)  announcement will be made.

28.Further, whilst I would readily understand the desire of any entrant in the Scheme to know as soon as possible if his entry will not be subject to further consideration, and if so why, I do not think that founds a legitimate expectation for the purposes of any public law challenge.

D.4  Procedural Impropriety

29.It is also well established that there is no general duty for administrative body to give reasons.  In the context of a Scheme to select projects to fund in revitalizing a historic building, and given that the Committee does plan to release the scores of the applicant’s entry at the completion of the entire selection process, any duty to give reasons (assuming that such duty exists)  would be satisfied.  It is not reasonably arguable that the Committee has to release the scores or give any sort of reasons at this stage.

30.Nor, on the materials, is it reasonably arguable that there has been any other procedural impropriety.  It would be an impermissible leap of logic to move from the applicant’s belief that his entry is one worthy of being ultimately selected, or at least making the second round, to an assumption that if that does not happen there must have been some unfairness or impropriety.

31.No argument on any promissory estoppel was pursued by the applicant.

D.5  Apparent Bias

32.As identified, this suggestion was only raised orally by the applicant during the leave hearing.  As Mr Chik says, an allegation of apparent bias is a serious allegation, and it would require proper particulars and a proper opportunity to be answered.

33.But the further point is that, unless and until the ultimately successful entrant in Batch VI of the Scheme is identified, it would not be possible to be in a position to make (let alone make good)  any such allegation.  Whatever concerns the applicant may have can safely await the official announcement of the successful entrant.

E.  Conclusion

34.The applicant’s leave application is therefore dismissed.

35.Mr Chik asked for costs of the application.  However, in the particular circumstances, and bearing in mind my acceptance that the applicant is acting from the best motives in what he sees to be the public interest, it seems to me that the appropriate order to make in the exercise of my discretion is that there be no order as to costs.

The applicant, acting in person

Mr Edward Chik, Government Counsel, of Department of Justice, for the putative respondent