劉靜文 v. 林鄭月娥 特別行政區首長 and Another

HCAL 1538/2021

[2022] HKCFI 555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1538 OF 2021

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Before:  Hon Coleman J in Chambers (Open to Public)

Date of Submissions:  20 December 2021, 19 and 28 January 2022

Date of Decision: 23 February 2022

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D E C I S I O N

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A.   Introduction

1.By Form 86 dated 5 November 2021, the Applicant sought an order for the landfill and sludge incinerator (respectively “Landfill” and “Incinerator”) at Nim Wan, Tuen Mun to cease operation immediately and be removed, so as not to harm the health of residents at Lung Kwu Tan (or Tung) anymore and to be in breach of Article 4 of the Basic Law.  The broad reasons given were that:

(1)  harmful substances were released from the operation of the Landfill and Incinerator, seriously affecting the health of the inhabitants in the vicinity of Lung Kwu Tan and increasing the risk of their contracting cancer;

(2)  the odour produced in the treatment of the huge amount of waste seriously affects the air quality in Lung Kwu Tan; and

(3)  the Landfill will be infested with flies, which will spread diseases, affecting the health of inhabitants.

2.However, though the Form 86 identified the Chief Executive of the HKSAR and the Secretary for the Environment as the 1^st and 2^nd Putative Respondents, the Form 86 did not identify a specific decision made by either of them which the Applicant intended to challenge in the application for leave to apply for judicial review.

3.By directions dated 8 November and 12 December 2021, I directed the Putative Respondents to file an Initial Response, and permitted the Applicant to file a Reply to that Initial Response.

4.On 20 December 2021, Mr Edward Chik, Acting Senior Government Counsel representing the Putative Respondents filed the Initial Response, together with various supporting documents referenced in it.  Mr Chik opposed the grant of leave to apply for judicial review, in summary for the reasons that:

(1)  the Applicant failed to lodge the application in a timely manner;

(2)  the construction of the Landfill and the Incinerator were in strict compliance with the related laws and regulations and were completed properly; and

(3)  the operation of the Landfill and the Incinerator have been subject to monitoring to ensure that they are operating in compliance with the requirements of the related environmental legislation.

5.On 19 January 2022, the Applicant filed her Reply, together with a proposed amended Form 86 and her second affirmation.  The proposed amendment seeks to identify specific decisions for challenge, and seeks to identify reasoned grounds on which the proposed relief is sought.  The specific proposed amended relief sought is (1) an order to find the West New Territories (“WENT”) Landfill Extensions illegal, and (2) an order to revoke the decision of the construction of WENT Landfill Extensions – apparently meaning the decision approving the funding made by the Finance Committee of the Legislative Council (“Legco”) – and to return the project to the government for re-selection of location and a fresh environmental impact assessment report.

6.By letter dated 28 January 2022, Mr Chik requested the Court to dispose of the amendment application on paper, (a) by refusing the application for amendment, or (b) if the application for amendment were allowed, by dismissing the application for leave for the original Form 86 and the amended Form 86.

7.Many of the documents are in Chinese, but I have been provided with English translations.  Having considered the materials, it seems to me that the application overall can appropriately be dealt with on paper.

8.This is my Decision.

B.    Relevant Background

9.From the materials provided with Mr Chik’s submissions, the following chronologies can be identified as regards the Landfill and Incinerator respectively.

10.As regards the Landfill:

(1)  On 22 July 1986, the Tuen Mun District Council had discussions on the reasons for choosing Nim Wan for the landfill for waste.

(2)  On 22 November 1991, the Finance Committee of Legco approved the funding proposal on the development of the landfill in New Territories West.

(3)  The Landfill commenced operation in November 1993.  It can be noted that the Landfill is one of two landfills in Hong Kong that accept municipal solid waste, is the larger of the two landfills, and the only one that can accept waste from marine access.

(4)  On 6 November 2013, the Secretary for Food and Health replied to a Legislative Councillor on the problem of flies at some of the housing estates and villages in Tuen Mun, pointing out that there was no evidence to show that the source of the flies was from the Landfill.

(5)  On 29 August 2019, the Environmental Protection Department (“EPD”) pointed out that CLP Power (Hong Kong) Ltd had an air quality monitoring station at Lung Kwu Tan Village, and the data recorded showed that in the previous five years the concentration of air pollutants in the vicinity of the village was in compliance with air-quality objectives in Hong Kong.  Compared with other areas in Hong Kong, the air-quality level was similar to that from general air-quality monitoring stations (for example, Shatin).

11.As regards the Incinerator:

(1)  The project feasibility study was completed on 21 May 2007.

(2)  On 30 March 2009, the Legco Panel on Environmental Affairs discussed the project on a sludge treatment facility.

(3)  On 25 May 2009, the Public Works Sub-Committee of Legco approved the project.

(4)  On 5 June 2009, the Finance Committee of Legco approved the funding.

(5)  On 1 April 2015, phase 1 of the sludge treatment facility commenced operation.

(6)  On 5 April 2016, the sludge treatment facility was in full operation (both phases 1 and 2).  It can be noted that the Incinerator is the only facility in Hong Kong that can deal with sludge incineration.

12.I also note from the proposed amended Form 86 that the Applicant agrees that the Landfill came into operation in 1993, and the sludge incinerator commenced operation in 2015.

13.The Applicant also refers in her proposed amendments to: (1) February 2021, when the government officially proposed the Landfill extension plan to the Legco Panel on Environmental Affairs; (2) 24 March 2021, when the project passed the examination of the Public Works Sub-Committee; and (3) 10 September 2021, when the Finance Committee of Legco approved the WENT Landfill Extensions.  It is said that the Environment Bureau will commence the project works in 2022, and the acceptance of waste is expected to commence from 2026.

C.    Approach to Form 86 and Proposed Amendments

14.It seems to me to be appropriate and convenient first to address the original intended challenge as apparently raised in the Form 86, before addressing the question of whether to permit the proposed amendments and, if so, then addressing the intended challenge as raised in the Amended Form 86.  I also keep in mind that the grant or refusal of leave to amend may be impacted by a view of the merits of the proposed amended case.

D.    Original Intended Challenge

15.It is trite – and it is a requirement of RHC Order 53 rule 4(1) – that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.

16.In this case, there is no dispute that the Landfill has been operating since 1993, a period of almost 28 years.  There is also no dispute that the Incinerator commenced operation in 2015 and has been fully operating since 2016, a period of over 5 years.

17.In those circumstances, it is plain that the challenge proposed to be raised by the original Form 86 is woefully out of time, and without any basis identified for the grant of any extension of time as would permit a challenge after so many years.

18.Indeed, this point seems to me to be tied directly to the failure in the original Form 86 to identify any particular decision of either the 1^st or 2^nd Putative Respondent as the specific subject-matter of the intended challenge.  Rather, what is identified is a general complaint about the existence and operation of the Landfill and/or the Incinerator.  That is not a matter suitable for a challenge by way of an application for leave to apply for judicial review.

19.On that basis alone, I would reject the application for leave to apply for judicial review on the original Form 86.  Therefore, it seems to me to be unnecessary – and it may be an unhelpful factual distraction – to consider the other two bases of opposition raised by Mr Chik.  In any event, as also likely flows from the failure to identify any particular decision as the specific subject-matter of intended challenge, those points relate to factual aspects of the ongoing operation of the Landfill and the Incinerator.  Absent identification of a particular decision under challenge and a basis for saying it was taken in breach of a principle of public law, that kind of matter is also not ordinarily something amenable to judicial review.

E.    Proposed Amendments

20.The proposed amended Form 86 identifies the specific ‘judgment, order, decision or other proceeding in respect of which relief is sought’ as follows:

The Environmental Protection Department’s decision to construct the West New Territories (WENT) Landfill Extensions can originally be found in the Project Profile in April 2004 (Attachment 1); in Legco Paper in February 2021 (Attachment 4) and on 10 September 2021 (Attachment 2), the Finance Committee approved the WENT Landfill Extensions and its works.  The Environment Bureau will commence the project work at the end of 2022 and it is expected that acceptance of waste will commence in 2026.

21.As already indicated above, in substitution for the previously identified relief, the specific proposed amended relief sought is:

An order to find the West New Territories (“WENT”) Landfill Extensions illegal

An order to revoke the decision of the construction of WENT Landfill Extensions; and return the project to the government for re-selection of location and a fresh environmental impact assessment report

22.The proposed changes are explained in the Applicant’s Reply.  She acknowledges that although she originally asked for relocation of the sanitary landfill and sludge incinerator currently situated at Nim Wan, Tuen Mun, on second thoughts what she really wants to challenge now is the decision by the EPD to carry out the WENT Landfill Extension Plan.  She explains that she has been living throughout in Lung Kwu Tan, so has personally felt the health impact brought about by the Landfill.  She had thought that operation of the Landfill would stop in 2026 when it reaches its full capacity.  However, contrary to her expectations, the Government subsequently decided to expand it, and that is why the application for judicial review was lodged.

23.The proposed amendments to the Form 86 also identify grounds for the intended challenge, which I think can be summarised as follows:

(1)  Related factors not considered: The Applicant takes the view that the WENT Landfill Extension has not sufficiently taken into consideration the harmful effects the Landfill has on nearby residential buildings, and the limitations of the environmental protection measures in that:

(a)  the Landfill is already very close to residential buildings, and has brought about negative effects to the environment;

(b)  in the paper of March 2021, the Environment Bureau did not take into account the effects on villagers when considering the extension of the chosen site;

(c)  the Government has not taken into account the related environmental policies, and should have taken into account the effectiveness and necessity of previous measures, and when reassessing the effectiveness of those measures reconsider the necessity of the Landfill Extension;

(d)  the Government should reconsider the necessity and urgency of the Landfill Extension in light of the targeted waste reduction in Hong Kong;

(e)  the related Environmental Impact Assessment (“EIA”) report has not taken into consideration the distance between the site selected and residential buildings, and the effect on those buildings;

(f)  further, the EIA report was made more than 10 years before 2021, and the Applicant takes the view that the information and assessment results in it may not still be applicable to present circumstances, such that there is a need for reassessment of the environmental impact.

(2)  Procedural unfairness: when the government implemented the extension plan and conducted the EIA, the villages in the area were not consulted, nor was there any response to the dissatisfaction and doubts raised by villagers.  The Applicant takes the view that implementation of the policy in the absence of consideration of the villagers’ views is unfair on the villagers affected.

(3)  Summary: If the various points had been taken into account, together with an appropriate and timely EIA report, no reasonable government authority would have made the decision on the WENT Landfill Extension.  It was perverse for the CE and the Environment Bureau to make that decision.

24.The Applicant’s own summary of her grounds for intended judicial review, as set out in her Reply, are as follows:

(1)  the Government failed to take account of the health issues and other relevant factors such as the nuisance inflicted upon nearby residents in terms of smell, dust, sewage and noise;

(2)  the Government must understand that refuge tipping is not a sustainable waste treatment method, and it is at odds with the strategies outlined in the Waste Blueprint for Hong Kong 2035;

(3)  the EIA report(s) simply ignored the fact that the chosen site is only a short distance from its neighbouring residential areas and totally disregarded its impact on the residents who live there;

(4)  the Government failed to consult the residents living in the vicinity, nor did they put forward any consultation paper or reports to remove the negative environmental impact caused by the plan in question;

(5)  the decision of the Government is in defiance of common sense.

25.Mr Chik opposes the proposed amendments on the twin bases that (a) the amendments are put forward out of time, and (b) the amendments lack merits.

26.On timing, Mr Chik points out that, as early as February 2021, the Government proposed to the Panel on Environmental Affairs of Legco about the WENT Landfill extension, and discussion started in the Panel.  On 10 September 2021, the Finance Committee of Legco approved the funding.  All of that information is available to the public.  Yet it was only on 19 January 2022 that the Applicant applied to amend the Form 86, out of time and without any explanation about her delay, contrary to the requirements under Order 53 rule 4(1).  Mr Chik relies on the “high threshold” expounded in various cases, including 葉國成 對 懲教署署長 [2021] HKCFI 2908 at §2; Tomorrow Finances Ltd v Director of Fire Services [2019] HKCFI 3025 at §10(3); and Sunevision Holdings Ltd v Hong Kong Science and Technology Parks Corp [2019] HKCFI 1253 at §20.

27.In the proposed amended Form 86, the Applicant suggests that the application is made in good time because the (original) Form 86 was issued on 5 November 2021.  However, I agree with Mr Chik that the relevant date to look at is the date of the proposed amendments, namely 19 January 2022.  I do not think it correct to seek to ‘piggy-back’ on the date of the original Form 86, when the substance of it was entirely deleted/struck through and replaced.  Indeed, it is only in the proposed amendment that a specific decision was identified as the intended subject of challenge.

28.I take into account that the Applicant acts in person, and her explanation that, on reflection, her intended challenge was really triggered by, and was an intended challenge to, the proposed extension to the Landfill – rather than to the existence of the prior existing Landfill itself.  However, it seems clear that the proposed amendments aim to counter or avoid the clear force in the Putative Respondents’ submissions relating to her original complaint, and that the amendments follow a change of mind (“on second thoughts”).

29.The necessary funding for the Landfill Extension was granted only on 10 September 2021, and the proposed amendments are therefore advanced only one month or so beyond the normal three-month period within which to bring an intended challenge by way of judicial review.  Though the papers suggest that work on the Landfill Extension will commence in 2022, the amendments were put forward in the first few weeks of the year.  But, where the real complaint put forward by the Applicant seems to focus on environmental matters, which were dealt with sometime before the approval of funding by the Finance Committee of Legco, it might be thought that the complaint is more obviously actually directed at earlier decisions than the approval of funding.

30.Nevertheless, in the circumstances, I do not think I would dismiss the application for leave to amend so as to proceed on the basis of the proposed amendments, simply because the proposed amendments were advanced out of time.  But I have also already mentioned that, in the exercise of discretion as to whether or not to grant leave to amend, the merits of the proposed amendments can properly be taken into consideration.

31.On the merits, Mr Chik submits that the Applicant’s complaint is that the Government “failed to sufficiently consider” the impact of the WENT Landfill extension on the local villagers, and failing to consult the villagers.  However, under common law, the Government has no general duty to consult for a particular policy. Further, even in some circumstances where the Court sees the need for the Government to consult, the extent and scope of consultation should be decided by the policymakers, not the Court: see 陳基裘 訴 香港政府發展局 [2020] HKCFI 3126 at §35.

32.Mr Chik also submits that, in fact, since the grant of funding by the Legco for the “West New Territories landfill extension – consultants’ fees and investigations” in 2014, the Environment Bureau and the EPD have been in close dialogue with various stakeholders, including the village representatives of Lung Kwu Tan Village, collecting their views on the planning and development and road widening work of the WENT Landfill Extension.

33.Mr Chik further submits that the Applicant’s complaint against the extension of the Landfill is, in substance, her personal dissatisfaction with the Government’s proposal to extend the Landfill.  But, case authorities have shown clearly that the Court is not the proper arbiter of political, economic or socio-economic disputes or differences: see Kwok Cheuk Kin v The Chief Executive of the HKSAR [2021] HKCFI 2357 at §§21-22.

34.Ultimately, I think that is correct.  The Applicant’s complaint is the expression of personal dissatisfaction, in particular about the weight given or not given to individual factors in the overall consideration as to whether or not and, if so, how to develop the Landfill by the WENT Landfill Extension, and in particular by reference broadly to environmental matters.  On the materials, I am afraid that I do not think it is reasonably arguable with a real prospect of success to complain that relevant matters were not taken into account, or that there was some other form of procedural unfairness in the decision-making process.  Nor is it reasonably arguable that the decision to fund the WENT Landfill Extension was irrational, perverse, or unreasonable in the public law sense.

35.In the circumstances, even if leave were given to amend the Form 86 out of time, there are no reasonably arguable public law complaints with any real prospect of success as would lead to the grant of leave to apply for judicial review.

F.    Conclusion

36.The Applicant does not cross the threshold for the grant of leave to apply for judicial review, either on the original Form 86 or on the proposed amendments (even if leave to amend were to be granted).

37.In conclusion, I refuse both the application to amend the Form 86 and, in any event, the application for leave to apply for judicial review.

38.However, in the broad exercise of my discretion relating to costs, I refuse Mr Chik’s application that the Applicant should pay costs.  Rather, I make no order as to the costs of these proceedings.

The applicant, acting in person

Mr Edward Chik, Senior Government Counsel (Ag.), of the Department of Justice, for the 1^st and 2^nd putative respondent