Hau Koon Yan v. Lands Department

HCAL 601/2023

[2023] HKCFI 1697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 601 OF 2023

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D E C I S I O N

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A.  Introduction

1.By a Form 86 filed on 24 April 2023, the Applicant seeks leave to apply for judicial review, so as to challenge two decisions of the putative respondent Lands Department (“LandsD”) in:

(1)  a letter dated 31 July 2019 (“Letter”), in which LandsD informed the Applicant and his son that they were not eligible for ex-gratia rehousing arrangements on the ground of the Applicant’s ownership of a domestic property, and

(2)  LandsD’s termination of the Modification of Tenancy (Permit No. 34915) (“MoT”) on 27 December 2019.

2.On 25 April 2023, I gave directions for LandsD to file an Initial Response to the application, and to permit the Applicant to file a Reply to that Initial Response. Both documents have been filed.

3.Having considered the various documents filed, it seems to me that this is a proper case for paper disposal. This is my Decision.

B.  Background

4.I can take most of the material background facts from the matters as set out in the Initial Response, as supported by the various documents attached to the Initial Response.

5.The case concerns Section A (“Ex-Lot”), a particular parcel of land, being a section of Lot No. 1794 in Demarcation District No. 83 (“Mother Lot”).

6.The Mother Lot was held under a Block Government Lease, described as “sloping ground” in the Schedule to that lease. Pursuant to the MoT granted to the registered owner of the Mother Lot dated 1 December 1965, the Government permitted the modification of the Block Government Lease to such an extent that the registered owner may direct certain specified structures for the purpose of dwelling and kitchen, subject to the general and special conditions set out, including (amongst other things) that the permit may be cancelled at any time by the District Officer of Tai Po on one month’s notice being given, and that the permit shall not be transferred.

7.The Ex-Lot was carved out from the Mother Lot by a Deed Poll registered in the Land Registry. The Applicant became the administrator of the Ex-Lot by way of letters of administration dated 1 August 2012, also registered in the Land Registry. The Ex-Lot was subsequently assigned to the Applicant by an assignment dated 21 February 2018, registered in the Land Registry.

8.In December 2015, the Government proposed to resume various private lots in accordance with the provisions under the Roads (Works, Use and Compensation) Ordinance Cap 370 (“Ordinance”) in the Fanling North New Development Area (“Scheme”). The Ex-Lot was not originally included in the list of private lots to be resumed for the implementation of works under the Scheme.

9.However, following a Government Notice published on 8 November 2016, in which the Government proposed an alternative alignment of the works originally identified, the Ex-Lot has been included in the list of additional lots to be resumed pursuant to the amendments.

10.On 23 January 2017, an objection resolution meeting (“Meeting”) was held between the Applicant and representatives of the Government and the consultant of the Scheme. The meeting notes (“Notes”) reveal that, at the Meeting, the Applicant contended that the proposed resumption of the Ex-Lot was unreasonable, especially when the huge amount of costs incurred in his recent repairing works on the structure on the Ex-Lot would not be compensated. LandsD suggested that appropriate ex-gratia compensation and rehousing arrangements would be offered to affected private landowners and eligible affected persons. But the Applicant continued to express dissatisfaction, and to maintain his objection to the Scheme because of its impact on him.

11.Pursuant to the Ordinance, the Applicant’s unresolved objection together with the Scheme were submitted to the Chief Executive in Council (“CE-in-C”) for consideration. The CE-in-C later authorised the works and the use previously described (although with certain modifications).

12.Further, on 26 September 2019, notice was given under section 14 of the Ordinance that LandsD had made an order under section 13(1) of the Ordinance directing the resumption of various pieces or parcels of land, including the Ex-Lot, for the purposes of or incidental to the works or the use described in the Scheme.

13.On the same date, 26 September 2019, LandsD served a Notice of Termination of the MoT on the registered owner of the Mother Lot and the Applicant, informing them that the termination of the MoT would take effect on 27 December 2019.

14.As to the compensatory consequences of the resumption of the Ex-Lot, there were two potential elements: (1) under the Ordinance, the Applicant had a right to claim compensation; and (2) there was the possibility of ex-gratia compensation and rehousing arrangements, dealt with in accordance with the ‘General Ex-gratia Compensation Arrangements for Owners, Tenants and Occupants and Rehousing Arrangements for Occupants of Squatter Structures affected by Land Resumption and Government Development Clearance Exercises – Guidelines for Owners, Tenants and Occupants’ published by LandsD in July 2018 (“Guidelines”).

15.As to the compensation under the Ordinance, LandsD made two without prejudice offers (a pre-reversion offer and a post-reversion offer on 14 November 2019 and 20 January 2020 respectively) to the Applicant, in the identical amounts of HK$3,632,414.40. Neither offer was accepted by the Applicant, who instructed solicitors to act for him in the negotiation which ensued with LandsD.

16.Following that negotiation, the solicitors informed LandsD by a letter dated 3 August 2022, sent ‘without prejudice and subject to agreement’, that the Applicant was agreeable to accept LandsD’s offer of HK$3,632,414.40 in full and final settlement of all and any claims which the Applicant may have against the Government in respect of the resumption of the Ex-Lot. The letter also included a further claim against LandsD for reimbursement of the legal and professional fees incurred by the Applicant in the total amount of HK$130,000.

17.Later, and subject to certain formalities, LandsD said would arrange to pay the agreed settlement sum of HK$3,632,414.40 together with interest to the Applicant accordingly.

18.As to the ex-gratia compensation and rehousing arrangements, the Guidelines identify that in order to be eligible for ex-gratia rehousing arrangements, the occupants of licensed domestic structures should fulfil certain eligibility criteria, including the “no-domestic-property” requirement. Essentially, the Guidelines require that, during the period from the date of pre-clearance survey (in this case, on 18 November 2016) to the date of acceptance of rehousing, an applicant and his/her family members listed on the Clearance Registration Form (in this case, the Applicant and his son) should not own or co-own or have an interest in any domestic property in Hong Kong.

19.However, according to the Land Register, the Applicant became a joint tenant of a domestic property (“Property”) in Aberdeen by way of an assignment dated 9 April 1991. There being no record of subsequent change of registered ownership of the Property, that suggested that the Applicant remains a registered joint tenant of the Property. As a result, the Applicant did not comply with the “no-domestic-property” requirement under the Guidelines, and LandsD considered that the Applicant was not eligible for ex-gratia rehousing arrangement. Further, because the Applicant’s son was under the age of 18 as at 31 July 2019, he was not eligible for ex-gratia rehousing arrangement under the prevailing policy.

20.It was on that basis that LandsD informed the Applicant in the Letter about his ineligibility for rehousing, despite his entitlement to the Domestic Removal Allowance. This was also explained by LandsD in a letter dated 28 May 2020 sent to the Applicant’s solicitors.

21.Though it does not matter to any part of the analysis in these proceedings, I note that occupation of the Ex-Lot had not ceased before the stipulated deadline of 30 September 2020, and LandsD subsequently took possession of the Ex-Lot on 6 July 2021, when it was handed over to the relevant works department for implementation of the Scheme.

C.  Basis of Intended Challenge

22.From the Form 86 and the affirmation filed in support, it can be seen that the Applicant places intended reliance on the following matters:

(1)  The Letter is factually incorrect, in that the Applicant did not own any residential property as of 31 July 2019, and his son had never owned any residential property.

(2)  The Applicant’s former matrimonial home (i.e. the Property) had been transferred to his ex-wife pursuant to an order made by the Family Court dated 3 May 2018 (and filed on 21 May 2018) (“Court Order”).

(3)  The Applicant and his son had never conducted a qualification review by LandsD.

(4)  The Applicant has not received any form of compensation as a result of LandsD’s termination of the MoT on 27 December 2019.

(5)  LandsD’s termination of the MoT violated the principle of fairness, in particular where the Applicant had invested his retirement fund in decorating his property after having obtained LandsD’s confirmation that his lot would not be resumed nor affected by the Scheme.

23.These matters are not actually set out as intended grounds of judicial review, but rather as a narrative of events. Nevertheless, I will address those points under the heading ‘Merits of Intended Review’ below.

24.The Applicant also offered three reasons seeking to explain his delay in making this application. I will deal separately with those matters under the heading ‘Delay’ below.

D.  Merits of Intended Review

25.LandsD submits that the Applicant’s application for leave to apply for judicial review should be refused for various reasons, being:

(1)  The Applicant failed to identify any proper grounds of review in the form of any alleged public law breach, whether in the Form 86 or the affirmation in support.

(2)  The purported challenges advanced in the Form 86 and the affirmation are not reasonably arguable with a realistic prospect of success.

(3)  LandsD’s decision to terminate the MoT was a private function not amenable to judicial review.

26.LandsD also submitted that, in any event, there had been substantial and unjustified delay in making this application. Again, I can address that point separately under the heading ‘Delay’ below.

27.In order to obtain leave to apply for judicial review, an applicant must identify grounds of review which have a reasonably arguable prospect of success. It is trite that a narrative attachment to the Form 86 which does not readily identify any proper ground in support of the application is not sufficient in satisfying the requirement to provide a clear and succinct statement of the grounds upon which the claimed relief is sought: see RHC Order 53 rule 3(2)(a)(iii); and Ponomorova Olena v Master Kent Yee [2022] HKCFI 2243 at §40.

28.I agree with the submission made for LandsD that the Applicant has failed in this case to state any proper grounds in support of his application, except by setting out a narrative statement of facts as identified above. That narrative can be described as an expression of his personal grievance and dissatisfaction with the decisions the subject of the intended challenge, but without identification of any conventional grounds of judicial review. That in itself is a reason for dismissing the application: see Ma Tak Yuen v Director of Lands [2023] HKCFI §§17-18.

29.Moreover, I do not think the points raised by the Applicant in his Reply identify with any clarity any public law grounds of intended review, though he has identified certain matters (as he puts it) “for the better future of Hong Kong”, being: (1) illogical and invalid use of Pre-Clearance Survey; (2) illegal use of Pre-Clearance Survey date; (3) use Clearance Registration Date illegally; (4) misinterpretation of the Land Registry record; (5) violate principles of equity and justice in terminating the MoT; and (6) violate principles of equity and justice on compensation.

30.But, in any event, the proposed challenge does not identify any reasonably arguable ground with realistic prospect of success. Even looking at the matters raised in his Form 86, affirmation and Reply, this is for the following reasons:

(1)  There is no factual error in the Letter. Whilst the Applicant has relied on the Court Order by which his interest as joint tenant in the Property was ordered to be transferred to his ex-wife, the Court Order does not itself have the effect of transferring legal title in the Property. Further, the Land Register identifies the Applicant as having been one of the registered joint tenants of the Property since 1991, without change in registered ownership since that date. The Applicant’s point made in his Reply, that he completed his part by registering the Court Order and it was for the ex-wife to alter the record and the Land Registry, does not change the legal analysis.

(2)  Further, the Applicant’s son has never owned any residential property in Hong Kong and was under the age of 18 as at 31 July 2019, so was ineligible for ex-gratia rehousing arrangement under the Guidelines.

(3)  In so far as the Applicant has stated that LandsD’s qualification review should be invalidated, because he and his son never conducted a qualification review by LandsD, the Applicant did in fact complete and sign the Clearance Registration Form dated 19 November 2018, containing the personal details of himself and his son as residents of the then existing structure on the Ex-Lot. The Applicant also acknowledged in that form that the personal data provided will be used by LandsD (amongst other reasons) for the purpose of determining his housing eligibility.

(4)  The suggestion made by the Applicant that LandsD resumed the Ex-Lot and terminated the MoT without any compensation to the Applicant is simply incorrect. After the without prejudice offers and negotiation for compensation, the Applicant agreed in August 2022 to accept LandsD’s offer of HK$3,632,414.40 in full and final settlement of all and any of the Applicant’s claims against the Government in respect of the resumption of the Ex-Lot.

(5)  The Applicant has suggested that LandsD confirmed to him at the Meeting that the Ex-Lot would not be resumed, but the Notes of the Meeting show that to be incorrect. The Notes do mention a prior telephone inquiry from the Applicant on 11 January 2016, enquiring whether the Ex-Lot would be resumed under the Scheme, which at that time would not affect the Ex-Lot. But the Notes also make it manifest that, prior to the Meeting, the Applicant had been aware of the proposed amendments of the road scheme which would affect the Ex-Lot. Indeed, this was the very basis of the discussion about an offer of appropriate ex-gratia compensation and reads housing arrangements. The suggestion made by the Applicant in his Reply that there was detrimental reliance, through his investment on renovation, is not factually supportable.

(6)  The decision to terminate the MoT is not amenable to judicial review. This is because it is settled law that lease enforcement actions (including decisions to terminate a Government lease) are matters of the Government’s land administration and management as a private landlord: see the Ma Tak Yuen case at §19. I agree with LandsD that the MoT is a land instrument granted to the registered owner of the Mother Lot permitting the modification of the Block Government Lease to a limited extent, so that its termination should not be considered to be a public law decision amenable to judicial review. The mere presence of some public element in the Government’s decision is not sufficient to transform such a decision into a public law decision amenable to review.

(7)  Further, I reject the Applicant’s submission made in his Reply that the termination of the MoT somehow violated the principles of equity and justice. The submission is in effect based on the suggestion that he was misled into investing in the Property, but I have already rejected that has been misunderstanding of what was discussed at the Meeting.

31.For the above reasons, the Applicant’s application stands to be dismissed.

E.  Delay

32.But I also agree that there has been substantial delay in the making of this application, where RHC Order 53 rule 4 requires an application for leave to apply for judicial review to be made promptly and in any event within 3 months from the date when grounds for the application first arose (unless the Court considers there is good reason for extending the period within which the application shall be made).

33.In cases where the delay is considerable, and there is little or no proper application for the like, and where the merits of the intended application are weak, the Court will not grant an extension of time to apply for judicial review: see Mohammad Farooq v Permanent Secretary for Security [2022] HKCFI 2383 at §§24-27.

34.In this case, the delay is considerable. The two decisions the intended subject of review were given in July 2019 and September 2019 (though the latter decision was to take effect from December 2019). Therefore, the delay is well in excess of 3 years.

35.The Applicant has offered three explanations for the delay, being that: (1) he was unable to receive documents and attend to matters relating to the Ex-Lot because he was working in and “blocked” in the Mainland during the pandemic since December 2019; (2) he had engaged a lawyer since December 2019, negotiating with LandsD after 31 July 2019; and (3) he made an application for legal aid in October 2022, which was rejected on 7 December 2022, and his legal aid appeal was rejected on 13 April 2023, and he was unable to apply for judicial review in person without a solicitor.

36.However, the first two reasons are in essence inconsistent. Precisely because the Applicant had engaged solicitors to act for him as regards the question of compensation and the termination of the MoT from early 2020 identifies that it was practicable for the Applicant to have sought and obtained prompt legal advice as regards potential remedies, including the commencement of judicial review proceedings against the timeframe permitted under the RHC. Further, it does not seem to me that there was any particular need to receive documents, or that being in the Mainland would have prevented appropriate contact (e.g. by email) with people including his legal representatives. I do not understand why the Applicant was unable to receive or respond to correspondence.

37.As to the point on legal aid, the application for legal aid was made as late as October 2022, itself approaching 3 years after the deadline for commencing judicial review proceedings, and the application obviously does not act so as to restart the timeframe within which to begin those proceedings. Nor does the making of such a late application, or the fate of its rejection and decision on the legal aid appeal give rise to any good reason for extending the time within which to have commenced the challenge intended in these proceedings.

38.This is an additional reason why the application stands to be dismissed.

F.  Result

39.In the circumstances, the Applicant’s application for leave to apply for judicial review discloses no reasonable grounds with any realistic prospect of success. The application is dismissed.

40.I make no order as to costs.

The applicant, acting in person

Mr Louis Poon, Government Counsel, of the Department of Justice, for the putative respondent