張偉明 v. 地政總署署長黎志華先生

HCAL 742/2022

[2022] HKCFI 2592

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 742 OF 2022

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BETWEEN

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

Date of Decision:  19 August 2022

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D E C I S I O N

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A.  Introduction

1.The applicant is a villager of Cheung Uk, Sha Lo Tung (沙羅洞).  In the Form 86 filed on 11 August 2022, he has identified the decision the subject of the intended judicial review (with added official English interpretation)  as:

要求法庭將上述被告人所頒之行政命令(決定)將我族原居民私人祖祠﹑祖屋及耕地規劃批予沙螺洞發展有限公司及其下關連團體仍違基本法40條，29條.

Requesting the court to [rule] that the executive order (decision)  made by the above defendant granting the planning of the private ancestral hall[s], ancestral house[s] and agricultural land of indigenous inhabitants of our clan to Sha Lo Tung Development Company Limited and related bodies under its purview is in breach of Articles 40 and 29 of the Basic Law

2.It is not entirely clear what the impugned decision is, as seen from that description in the Form 86.  A possible reading is that the Lands Department has granted planning as regards all or some of the subject lands in Sha Lo Tung to a company known as the Sha Lo Tung Development Company Limited (沙螺洞發展有限公司)  (“Developer”)  and its connected entities.  This reads the phrase “規劃批予” as “granting the planning of” those lands/buildings referenced immediately beforehand.

3.But, in her letter to the Court dated 18 August 2022, Ms Elsie Chu, Senior Government Counsel (Ag), suggests that the phrase “規劃批予” means “plans to grant”, so that the apparent complaint is that the Government plans to grant the subject lands/buildings to the Developer.  Though I shall adopt the official interpretation, I do not think the alternative offered makes any substantive difference to any review of the merits.

4.The relief sought in the Form 86 is identified (with added official English interpretation)  as:

要求法庭頒令將上述被告人行政機構行政人員將我原告人土地祖祠﹑祖屋﹑耕地…規劃給他人是違返基本法，頒令此等機構立刻無條件歸還給申請人的原居民家族。

Requesting the court to rule that the above defendant, the executive personnel of the executive bodies, granting the planning of my, the plaintiff’s village land, ancestral hall[s], ancestral house[s], agricultural land … to other people is in breach of the Basic Law, and order these bodies to return it unconditionally to the applicant’s clan of indigenous inhabitants at once.

B.  Consideration of the Application

5.The body of the supporting affirmation is one page long written in large handwriting.  It repeats that the Director of Lands has granted the planning of Sha Lo Tung to the Developer and its connected entities.  It says that 16 lots of lands – the subject lands – are involved and there are ancestral halls, ancestral houses and farmlands on those lands.  It also identifies Articles 29, 39 and 40 of the Basic Law as the basis of the application.

6.The applicant has exhibited to his affirmation as supporting evidence a news report dated 20 July 2022.  From reading the news report, the following can be gathered.  All or part of the lands in Sha Lo Tung is owned by the Developer.  The lands fall within one of the 12 priority sites for environmental protection.  The Government offered to the Developer another piece of land around Tai Po in exchange for the Sha Lo Tung lands, with a premium to be paid by the Developer.  The Government said that Sha Lo Tung has high ecological value and will plan for its conservation in the long run. The arrangement was applauded by environmentalists.

7.It is not clear what the applicant means by “granting the planning of Sha Lo Tung” to the Developer.  As is shown in the news report, by completing the land exchange arrangement, any planning of that area has actually reverted from the Developer (the old owner)  to the Government (the new owner).  Even if he means “plans to grant”, the subject land has not been granted to the Developer.

8.It appears that the applicant seeks the return of the Sha Lo Tung lands to the applicant’s clan.  The use of the word “return” suggests that the lands originally belonged to the applicant’s clan.  But according to the news report, prior to the land exchange, the lands were owned by the Developer.  The applicant does not explain why the lands should be “returned” to him or his clan.

9.The Basic Law articles the applicant has invoked are:

(1)  Article 29: The homes and other premises of Hong Kong residents shall be inviolable.  Arbitrary or unlawful search of, or intrusion into, a resident’s home or other premises shall be prohibited.

(2)  Article 39: The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law.  Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

(3)  Article 40: The lawful traditional rights and interests of the indigenous inhabitants of the “New Territories” shall be protected by the Hong Kong Special Administrative Region.

10.It falls on the applicant to provide sufficient information and adduce sufficient evidence at the leave stage to persuade the Court why leave should be granted.  As it now stands, it is hard to see how the applicant can rely on Articles 29, 39 or 40.  The applicant has not explained how the 16 lots of lands exchanged are “homes” to him or his clan.  No particulars or evidence are provided about the applicant or his clan’s ownership over the lands.  It is entirely unclear what rights under Article 39 or what “lawful traditional rights and interests” under Article 40 he is relying on, and how that would give rise to any entitlement to the return of the lands to him or his clan.

11.Where no comprehensible or proper grounds of review are identified in the application, with no specific allegation of the breach of any public law duty owed, that is fatal to the application (being in breach of Order 53 rule 3(2)(a)(iii)  of RHC).  It is settled that it not the Court’s role to seek to identify any ground for review for an applicant.

12.In any event, even on the material he has himself deployed, the decision he seeks to impugn does not seem to be have been made as a matter of fact.

13.But further, Ms Chu has also explained in her letter:

(1)  of the subject land lots referred to in the applicant’s affidavit, none of them are owned by the applicant;

(2)  according to the Land Registry’s land register, all of the subject lots except Lot 810B are co-owned by Chueng Yuk Ping, Cheung Wai Kwan and Cheung Shuk Ying, whereas Lot 810A is owned by the Developer;

(3)  on 18 July 2022, the Government completed the non-in-situ land exchange procedures with the Developer (namely surrender of land by the Developer in exchange for grant of land by the Government)  for the long-term conservation of Sha Lo Tong;

(4)  the private land surrounded by the Company did not involve any of the subject lots of land;

(5)  the land granted by the Government is in Tai Po.

14.Therefore, however the application is approached, it is based on a misconception.

15.I also accept that such non-in-situ land exchange is within the purview of the Government’s land administration and management as a private landlord, and is thus not amenable to judicial review.

C.  Result

16.The materials before the Court disclose no reasonably arguable grounds with any reasonable prospect of success.

17.The applicant’s leave application is therefore dismissed, with no order as to costs.

The applicant, acting in person

Ms Elsie Chu, Senior Government Counsel (Ag), of the Department of Justice, for the putative respondent and interested parties