Cheung Ping Hang T’ong v. Secretary for Home and Youth Affairs

HCAL 1775/2024

[2025] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1775 OF 2024

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D E C I S I O N

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A.  Introduction

1.This application for leave to apply for judicial review concerns Cheung Ping Hang T’ong (張坪杭堂) (“Applicant” or “T’ong”) which is and was a t’ong associated with Lok Ma Chau Village, Yuen Long, New Territories.

2.The T’ong is the owner of Lot No. 3681 in DD 93 (“Lot”) consisting of an area of 812,394 square feet of agricultural land with its statutory managers registered under the predecessor of the present section 15 of the New Territories Ordinance Cap 97 (“Ordinance”).

3.The T’ong has been a business t’ong, which is formed under the Chinese concept of land ownership in that money and money’s worth were collected from investors to form a consortium when the Lot was acquired for a common commercial purpose, i.e. letting the Lot to be used for cultivation or fish-farming in return for rental income until the decline in agricultural activities in the New Territories since the late 1970s.

4.Home Affairs Department (“HAD”) is the executive arm of the Home and Youth Affairs Bureau, which is headed by the Secretary for Home and Youth Affairs (“Secretary”). The district affairs of the North District are handled by the North District Office (“NDO”) of the HAD.

5.In 2006, approval was given by the District Officer (North) (“DO(N)”), head of NDO, to cancel four manager positions held by the deceased managers of the T’ong. Since then, four managers (“Managers”) have remained in position.

6.On 22 February 2011, at a formal meeting convened and held for deciding whether the T’ong should sell and dispose of the Lot, the members of the T’ong passed resolutions that the Lot be sold at not less than HK$130.00 per square foot (“2011 Resolutions”). Out of the 19 members who participated in the meeting, all supported the proposal for sale.

7.Pursuant to the 2011 Resolutions:

(1)  on 3 March 2011, a sale and purchase agreement (“SPA”) in respect of the Lot was entered into between the T’ong and Asia Pacific Group International Limited (“Asia Pacific”), subject to the consent of the Secretary to be issued under section 15 of the Ordinance; and

(2)  on 28 November 2011, the SPA was registered in the Land Registry.

8.On 2 August 2013, the Applicant submitted an application for sale of the Lot (“2013 Application”), signed by the Managers including one Cheung Wai Loong (“CWL”), to NDO to seek the consent (“Section 15 Consent”) of the Secretary to the proposed sale (“Proposed Sale”) of the Lot to Asia Pacific pursuant to section 15 of the Ordinance.

9.In August and November 2013, the Applicant provided four sets of notes of meetings in support of the 2013 Application. In those notes of meetings, there was no mention of Asia Pacific and its interest in the T’ong.

10.Other correspondence has since continued in relation to the 2013 Application. But, until now, there is no decision made on it.

11.By Form 86 dated 8 October 2024, the Applicant sought leave to apply for judicial review of the Secretary’s decision or rather lack of decision (“Decision”), which is alleged to be “the failure or refusal on the part of the [Secretary] to give a decision either to consent to or to refuse the 2013 Application” and/or “the 2013 Application would be determined in accordance with the law and practice” and/or “the T’ong’s legitimate expectation that the 2013 Application would be determined within a reasonable time”.

12.I gave directions permitting the filing of an initial response by the Secretary, and a reply by the Applicant. The initial response dated 30 December 2024 (“Initial Response”) was served by Mr Edward Chik, Senior Government Counsel (Ag), Mr Louis Poon, Government Counsel, and Miss Amy Hung, Government Counsel, of the Department of Justice. The reply dated 27 January 2025 (“Reply”), which was prepared by Mr K M Chong, Counsel for the Applicant, was filed on 28 January 2025.

13.Having considered the materials, I am satisfied that it is appropriate to deal with this application on the papers. This is my decision.

B.  Background

14.To consider the intended grounds of review in proper context, it is necessary to set out more of the background relevant to this application, and which has been helpfully summarised by the parties in the Form 86, supporting affirmation of CWL dated 2 October 2024 (filed on 8 October 2024) and Initial Response broadly as follows.

B.1  Procedure of Processing a Section 15 Consent Application

15.The established procedures, which are applicable to all New Territories district offices of HAD, for handling any application for a section 15 consent, are as follows:

(1)  Upon receipt of an application, the manager of a t’ong will be asked to attend an interview during which a number of documents will be examined, including proof of the requisite consent of the t’ong members and members’ list.

(2)  The manager will also be asked to provide a completed Members’ List and prescribed Application Form.

(3)  HAD may also ask for documentary support and seek clarification on the tradition, practice, and process adopted by the t’ong for the proposed sale and take into account documents submitted, such as internal rules of the t’ong, resolutions or minutes of meetings.

(4)  HAD will arrange for the posting of official notices and the Members’ List.

(5)  If an objection is received, then the case will be passed for investigation and mediation as appropriate.

(6)  Clarification/confirmation/documentary support should be sought from the objector. As a general rule, every effort should be made to reach a decision as to whether the objection should be overruled as soon as practicable.

16.The above procedures are applicable to the processing of the 2013 Application.

B.2  Initial Objections

17.In the 2013 Application, it was declared that consent was obtained from all members for the Proposed Sale. The objections to the Proposed Sale were first received in June 2012, i.e. even before receipt of the 2013 Application by NDO, when a number of purported members filed written complaints upon learning that an Agreement for Sale and Purchase for the Proposed Sale was registered at the Land Registry.

18.Between August and December 2013, seven persons who asserted their interests in the T’ong (“Initial Objectors”) – including (1) CWL whose purported signature was found in the 2013 Application in his capacity as a manager of the T’ong and asserted that he had never signed any written consent to the Proposed Sale and (2) a Chang Yoon-wah (“CYW”) – confirmed their objections with NDO.

19.The reasons provided by the Initial Objectors included, inter alia, (1) allocation of interests in the T’ong and authenticity of the Membership List, (2) accuracy of the notes of meetings, and (3) absence of consent given to the Proposed Sale.

20.Between March 2014 and December 2022, communication between the Applicant and the Initial Objectors was facilitated by NDO with a view to addressing the objections and assessing the 2013 Application. Prior to the 2013 Application, since March 2013, attempts had been made by NDO to resolve the differences of views over the Proposed Sale, including:

(1)  constant written and telephone communications relaying views of the Initial Objectors and the replies of the Managers;

(2)  meetings with the Applicant between August 2013 and December 2022 to receive supplementary documents supporting the 2013 Application, seek clarifications and address issues raised by the Initial Objectors;

(3)  attempts at arranging mediation meetings in February and October 2014 between the Applicant and the Initial Objectors; and

(4)  a mediation meeting on 22 July 2015 between the Applicant and the Initial Objectors (including CWL who was then maintaining his objection to the sale) in which the participants exchanged views on the allocation and calculation of share interests.

21.Between December 2017 and January 2018, letters were received by NDO from the Initial Objectors, including CWL and CYW, who indicated their withdrawals of objections to the Proposed Sale.

22.In late January 2018, CYW informed NDO that he had not issued any letter to NDO, and that he maintained his objection to the Proposed Sale. Thereafter, regarding CYW’s objection, the Managers and CYW continued to correspond through NDO. The Managers alleged that the father of CYW had already sold his share of interest in the T’ong in 1954 and therefore CYW was never a shareholder in the T’ong. Despite this, the name of CYW and his purported signature had been included in one of the Consent Forms provided in support of the 2013 Application.

23.In April 2019, a letter was received by NDO from the purported son of CYW, who indicated that he maintained the objection of his late father and appointed one Ms Beatrice Wong to act on his behalf.

B.3  Alleged Change of Ownership of the T’ong

24.Throughout the exchanges between the Applicant and NDO, as to the membership of the T’ong, there has been an inconsistent case on the part of the Applicant, including (1) accuracy of the Membership List and (2) changes to the membership of the T’ong before and after submission of the 2013 Application, which was only made known to NDO in 2015.

25.On 4 and 9 December 2015, Cheung Bing-fok, one of the Managers, represented to NDO that since June 2013 Asia Pacific had been holding 85.69% of the shares in the T’ong (i.e. prior to the 2013 Application), which was the first time the alleged change of ownership of the T’ong was brought to the attention of NDO.

26.On 3 June 2021, during the meeting between NDO, CWL and a Ms Chu Kin-kam Karen (“Karen Chu”), NDO requested inter alia an account for changes in the membership lists of the T’ong from 1976 to 2013 with proof. On 17 November 2021 and 7 February 2022, the Applicant provided some documents attempting to resolve the discrepancies in the membership lists.

27.On 2 June 2022, CWL further wrote to NDO, declaring that between 2013 and 2018 all of the interests in the T’ong had been sold to Asia Pacific and one Ding Furu (“Ding”). An updated membership list with only Asia Pacific and Ding as members was provided but there was no mention about the respective shares of the two purported members. The alleged change of ownership of the T’ong as revealed in the supplementary documents provided by the Applicant is not consistent with the 2013 Application, in which Asia Pacific and Ding were never stated as members of the T’ong.

28.On 18 November 2022, NDO was informed by Karen Chu that the 2013 Application would be withdrawn and a fresh application would be submitted with the relevant membership list.

29.In view of the difference in the shareholding of the T’ong between what was then recently represented and what was declared in the 2013 Application, during a meeting between NDO, CWL and Karen Chu on 23 December 2022, NDO advised the Applicant to withdraw the 2013 Application and submit a fresh application for consent.

30.On 8 May 2023, NDO issued a letter to CWL to request the Applicant to make a fresh application because of the alleged change in the ownership of the T’ong.

31.On 25 July 2023, by way of letter from its solicitors, the Applicant enclosed documents evidencing the resolutions of the T’ong passed in a members’ meeting dated 18 July 2023 (1) to object to withdrawal of the 2013 Application, and (2) to confirm and adopt the 2013 Application and to proceed with it. The attendees of that meeting included Asia Pacific (represented by Karen Chu), Ding (represented by Karen Chu) and the Managers (represented by CWL). Authorisation letters were not provided.

32.Thereafter, NDO continued to proceed with the 2013 Application and requested the Applicant to provide evidence of signatures of the members to demonstrate their consents to the Proposed Sale. Through its solicitors on 4 December 2023, the Applicant provided a consent form (“Form D2”) with the authorised signature of Asia Pacific and signature of Ding.

B.4  Public Notice and Subsequent Objections

33.Upon receipt of the Form D2, NDO arranged for the display of public notice of the 2013 Application on the District Office Notice Boards of North District and Yuen Long District on 14 and 19 February 2024 respectively.

34.In March 2024, objections to the Proposed Sale were received by NDO from four purported members of the T’ong (“Subsequent Objectors”). On 28 March 2024, the Applicant was notified by NDO of the objections received.

35.On 16 May 2024, NDO invited the Applicant to deal with and address the Subsequent Objections. Upon obtaining their consent, NDO disclosed the identities of three of the Subsequent Objectors, whilst one of them remained anonymous.

36.On 23 May 2024, by way of letter from its solicitors, the Applicant replied to NDO. It asserted inter alia that the three identified Subsequent Objectors were non-members of the T’ong, and put forward the argument that the Subsequent Objectors had no locus standi to raise objections.

37.On 2 July 2024, NDO inquired with the Subsequent Objectors as to their interests in the T’ong, when such interests were vested, and whether such interests had been disposed of. With a view to forming a determination on the 2013 Application, NDO has been engaging in continuous communication with the Applicant’s solicitors and the Subsequent Objectors to clarify the latter’s grounds of objections and the former’s replies.

38.On 23 July 2024, the Applicant, through its solicitors, notified the Secretary that, given her insistence of requiring the Applicant to answer the Subsequent Objections and the alleged refusal to discharge her duty to determine the 2013 Application, it would commence legal proceedings against her.

39.On 8 October 2024, the Applicant filed an application for leave to apply for judicial review to challenge the Decision (as defined above).

C.  Statutory Provision Engaged

40.Section 15 of the Ordinance provides that:

Registration of manager of “t’ong”, etc.

Whenever any land is held from the Government under lease or other grant, agreement or licence in the name of a clan, family or t’ong, such clan, family or t’ong shall appoint a manager to represent it. Every such appointment shall be reported at the appropriate New Territories District Office of the Home Affairs Department, and the Secretary for Home and Youth Affairs on receiving such proof as he may require of such appointment shall, if he approves thereof, register the name of the said manager who shall, after giving such notices as may be prescribed, have full power to dispose of or in any way deal with the said land as if he were sole owner thereof, subject to the consent of the Secretary for Home and Youth Affairs, and shall be personally liable for the payment of all rents and charges and for the observance of all covenants and conditions in respect of the said land. Every instrument relating to land held by a clan, family or t’ong, which is executed or signed by the registered manager thereof in the presence of the Secretary for Home and Youth Affairs and is attested by him, shall be as effectual for all purposes as if it had been executed or signed by all the members of the said clan, family or t’ong. The Secretary for Home and Youth Affairs may on good cause shown cancel the appointment of any manager and select and register a new manager in his place. If the members of any clan, family or t’ong holding land do not within 3 months after the acquisition of the land make and prove the appointment of a manager, or within 3 months after any change of manager prove the appointment of a new manager, it shall be lawful for the Government to re-enter upon the land held by such clan, family or t’ong, which shall thereupon become forfeited. Such re-entry shall be effected by the registration of a memorial thereof in the Land Registry.

D.  The Intended Grounds of Review

41.It is trite that in an application for leave to apply for judicial review, the applicant needs to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong. This is a mandatory requirement of Rules of the High Court (“RHC”) Order 53 rule 3(2)(a), and a failure to comply with that rule is itself a reason to refuse leave to apply for judicial review. As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant.

42.However, although not clearly identified in the Form 86 and the supporting affirmation, the Applicant’s allegations are apparently discernible. In a way with which I agree, Mr Chik has summarised the grounds as follows:

(1)  Ground 1 – Error in law and irrelevant considerations.

(2)  Ground 2 – Legitimate expectation.

(3)  Ground 3 – Wednesbury unreasonableness or irrationality.

43.I will deal with each of the Grounds in turn.

E.  Delay

44.Before doing so, the issue of delay as traversed by the Secretary and in the Reply of the Applicant can be considered.

45.Mr Chik made the following submissions in the Initial Response:

(1)  It is unclear from the Applicant’s case as to when NDO should have made a decision on whether a Section 15 Consent should be given and when precisely the grounds for the leave application first arose.

(2)  The Applicant merely challenges the Putative Respondent’s “failure or refusal … to give a decision either to consent to or to refuse the 2013 Application for the sale of the [Lot] despite the lapse of 11 years after the same has been lodged” and contends that the latter has delayed determination “for more than 11 years”. There is no statutory or other fixed standard requirement as to the time to be taken to process an application.

(3)  On the Applicant’s case alone apparently resting upon the purported “11-year” delay, there is no attempt to provide an explanation for the delay of the Applicant to take out the leave application or to justify the extension of period within which the same is made.

46.In the Reply, Mr Chong submitted that:

(1)  The submission of the Secretary has disregarded the want of time frame within which a section 15 application needed to be determined and the nature of the duty of the Secretary to discharge under section 15 of the Ordinance. In the absence of a time imposed by section 15, the Secretary is required to discharge her duty within a reasonable time.

(2)  The duty to be discharged is not statically frozen at the time after the 2013 Application was first lodged on 1 August 2013. In the absence of a decision made within 3 months of an application for a Section 15 Consent, the Applicant would not be deprived of relief when he later applies to the Court. It is the Secretary’s continuous duty to consider all matters arising since receipt of the 2013 Application until a decision is made which, so far, she had not made.

47.Mr Chong further contended that:

(1)  Instead of raising a bar to relief, delay in making a decision by a statutory authority is, per se, a ground for mandamus.

(2)  As to when a claim should be brought having regard to Rules of the High Court Order 53 rule 4(1), the Court recognises that sometimes a claimant does not seek to challenge a specific decision on a specific date, as the conduct under challenge ‘may be of a continuing nature’: see R (Ali Raja & Anor) v London Borough of Redbridge [2020] EWHC 1456 (Admin) at §19. In circumstances where it is difficult to point to a specific act, a claim may be classified as having a ‘rolling’ deadline where the ‘decision’ being challenged is deemed to be ongoing rather than occurring on a specific date.

(3)  In the present case, the Secretary has never made any ‘decision’ capable of being relied upon for the purpose of judicial review. The Secretary was still clarifying the information of the objectors and will keep the Applicant posted of the progress in due course.

(4)  After receipt of the 2013 Application, there was an ongoing duty on the part of the Secretary to consider and reconsider the 2013 Application whenever new issues were raised by her and were answered. As revealed from the uncontroversial evidence, since the Applicant submitted the application on 2 August 2013 and up to July 2024, the Secretary has been requesting clarifications and for resolution of difference with objectors, and the Applicant acceded to such requests. The Secretary has never made any decision either giving or refusing a Section 15 Consent.

(5)  Due to the exceeding delay in processing the 2013 Application, the appropriate relief would be a mandamus to compel the Secretary to make a decision as in the case a statutory body failing to make a decision after a long delay in M v Criminal Injuries Compensation Authority [2002] All E.R. (D) 143 (Nov).

(6)  Analogy can be drawn from the decision in Tang Chiu Man v Secretary for Justice, for Director of Lands [2021] HKCFI 3518 in which leave was granted for judicial review of the lack of decision of the Director of Lands in approving an application to rebuild, taking irrelevant matters into consideration and imposing unjustifiable conditions: see §§16 and 26.

48.In this context, I can usefully adopt the following table regarding the documents annexed to the Initial Response, which to a large extent summarises the correspondence between the parties and the handling of the 2013 Application:

Annexures	Date	Description
1.	1 August 2013	Documents submitted with the 2013 Application
2.	22 February 2011, 2 December 2011, 8 March 2011 and 16 March 2012	Four sets of Notes of Meetings of the T’ong
3.	1 September 2014	Letter from NDO to Manager of the Applicant
4.	4 December 2015 and 9 December 2015	Two letters from Cheung Bing-fok, a manager of the Applicant, to DO(N)
5.	3 June 2021	Minutes of meeting prepared by NDO
6.	18 November 2022	Internal minute of NDO
7.	8 May 2023	Letter from NDO to CWL

49.As can be seen from the table above, and also on the facts of the present case as traversed above, the Secretary has been making various efforts in handling the 2013 Application, including liaison with the Applicant and its solicitors, arranging for meetings and mediation, facilitating the communication between the Applicant and the objectors, seeking clarifications from the stakeholders, and asking for documents pertinent to determining the 2013 Application.

50.Therefore, with respect to both Mr Chik and Mr Chong, each of their submissions on ‘delay’ gives rise to problems of internal inconsistency:

(1)  It is internally inconsistent for the Secretary to argue both (a) that no time for deciding the application has yet arisen as it is an ongoing process yet to conclude, and (b) there was a delay in bringing a complaint about there being no decision.

(2)  It is internally inconsistent for the Applicant to argue both (a) that there has been no delay in bringing proceedings, and (b) that it was Wednesbury unreasonable not to have reached a decision on the application within a reasonable time of two events which occurred, one as early as in 2015 and the other in 2023.

51.Having considered the submissions against the overall timings, I do not think it would be right to dismiss this application on the basis of ‘delay’ in its commencement. Indeed, as is evident from the Grounds of review, perhaps the real issue on the consideration of the timing of this application for leave to apply for judicial review is not one of ‘delay’, but one of ‘prematurity’.

52.It seems reasonable that, in view of the time and effort required for handling and assessing a variety of matters (including the alleged change of membership of the T’ong, receipt of objections and the necessary follow-up and clarification on them), the Secretary is still at the stage of processing the 2013 Application and has not yet made a determination on whether a section 15 consent should be given or not.

53.Without any substantive decision having been made by the Secretary pursuant to section 15 of the Ordinance, it is premature for the Applicant to make an application for leave to apply for judicial review of the so-called Decision. On the basis of this alone, the application should be dismissed.

F.  Ground 1 – Error in law and irrelevant considerations

54.As regards the complaint about error in law and irrelevant considerations, the contention of the Applicant as set out in its Form 86 is as follows:

(1)  The Secretary has erred in law in refusing to determine the 2013 Application on the ground that (a) the Applicant would be required to address the objections of the three identified objectors despite none of them having locus standi to raise objections; and (b) that the Applicant would be required to deal with the anonymous objection despite the Secretary having refused to identify this objector. As such, the Secretary should disregard those objections.

(2)  Legal propositions, including that only persons having an interest (as members) in a t’ong may object, have been laid down in Re Man Sham Chung Wui [2011] 1 HKLRD 427.

55.Further, Mr Chong submitted, in summary, that:

(1)  The Secretary purported to deal with facts (inclusive of objections) concerning the application for section 15 consent prior to the 2013 Application, which is erroneous and misplaced because:

(a)  the 2013 Application was based upon majority of share of interest in the T’ong supporting the application rather than the 2011 Sale and Purchase Agreement; and

(b)  the objections to the 2011 Sale and Purchase Agreement were withdrawn after clarification by the Secretary’s enquiries with the then objectors.

(2)  Upon unchallenged evidence showing a majority of share interest in the T’ong supporting a section 15 application, it is the duty of the Secretary to act in accordance with relevant Chinese law and custom concerning business t’ongs (governing sale of landed interest in a business t’ong where a majority decision prevails) and to discharge her duty.

(3)  Re Man Sham Chung Wui supports the contentions of the Applicant that:

(a)  a resolution passed by the majority share interest in the T’ong to sell is valid;

(b)  upon passing a valid resolution by members, the Secretary would be obliged to act according to that valid resolution; and

(c)  instead of requiring the Applicant to deal with the objections (inclusive of anonymous objections) which were irrelevant, the Secretary should proceed with the Applicant’s application.

(4)  Given the refusal of the Secretary to disclose the identities of the anonymous objectors, the Applicant would not be able to respond, as without knowing their identities, it would not be possible for the Applicant to pinpoint whether they have the necessary locus to object.

(5)  As regards the Secretary’s reliance on the Personal Data (Privacy) Ordinance Cap 486 (“PDPO”) (see below), it is misplaced because:

(a)  whether the objector has sufficient standing to object is a statutory exception under section 55(1) of the PDPO; and

(b)  as the 2013 Application has been supported by a valid resolution, the Secretary should not have required the Applicant to deal with any objections which, having regard to the valid resolution, would be irrelevant.

(6)  Instead of applying relevant Chinese law and custom, including the majority rule on the validity of resolutions of business t’ongs, to the 2013 Application, the Secretary has failed or refused to discharge her duty.

(7)  Regarding the role of the Secretary under the Ordinance, section 15 does not confer the Secretary with any discretion to exercise upon application for consent. The Secretary is obliged to apply Chinese law and custom in respect of all matters “in relation to land in the New Territories” pursuant to Section 13 of the Ordinance, which is mandatory.

56.However, against the background of the present case and the procedural history of the Secretary’s handling of the 2013 Application as set out above, I broadly accept Mr Chik’s submissions in response to Ground 1, which can be summarised as follows.

57.Re Man Sham Chung Wui does not support the Applicant’s case that a majority decision of the T’ong would mandate the Secretary to give the Section 15 Consent, or that any objection from the minority shareholders of the T’ong must be disregarded in the exercise of the power under section 15 of the Ordinance by the Secretary. The passage in Re Man Sham Chung Wui at §41 only supports the proposition that, in the absence of clear evidence of a custom to the contrary, land held by a “wui” could be sold, even if there was no unanimous consent by all its members. It was held that (1) the prevailing articles of the appellant “wui” specifically provided that any objections by the minority were to be disregarded, and (2) even if the Court grants an application for directions as to the sale of the land, the applicant therein will still have to seek the approval of the Secretary for any proposed sale of property.

58.Indeed, the crux of the disputes in Re Man Sham Chung Wui was the proper construction of the old articles and the new articles of the “wui” involved (which had bearing on the authority of the managers of the “wui” and the passing of resolutions pertinent to disposal of the “wui’s” properties), rather than the approval of the then Secretary for Home Affairs for any proposed sale of the properties under section 15 of the Ordinance.

59.The Applicant’s reliance on the Re Man Sham Chung Wui case is further misplaced on the facts of this case, because (a) the Secretary has never imposed a requirement of unanimous consent; (b) to the contrary, it was the Applicant which declared in the 2013 Application that “all members agree to the above application”; and (c) there have been disputes as to the membership and/or the shareholding of the T’ong.

60.Reference can be made to Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 at 1065, where it was held that a body empowered to exercise a discretion is under a duty to take reasonable steps to acquaint itself with matters relevant to its decision, but the extent of its obligation to make inquiries and consider alternative courses of action will vary according to the context, and is often referred to as the ‘Tameside duty’.

61.The Tameside duty is a facet of Wednesbury unreasonableness, where the extent of the duty is affected by the following principles (which I addressed in Gao Jie Acting By Her Next friend Qu Mingpeng v Director of Immigration [2024] HKCI 1750 at §93):

(1)  The obligation upon the decision-maker is only to take such steps to inform himself as are reasonable.

(2)  Subject to a Wednesbury challenge, it is for the public body and not the Court to decide upon the manner and intensity of inquiry to be undertaken.

(3)  The Court should not intervene merely because it considers that further enquiries would have been sensible or desirable, but only if no reasonable authority could have been satisfied on the basis that the enquiries made that it possessed the information necessary for its decision.

(4)  The Court should establish what material was before the decision-maker and only strike down the decision not to make further enquiries if no reasonable decision-maker possessed of that material could suppose that the enquiries made were sufficient.

(5)  The duty which may require a decision-maker to draw his own attention to relevant considerations, perhaps by consulting other bodies or persons with particular knowledge or involvement, springs from the duty to inform himself so as to arrive at a rational conclusion (and it is not a duty of procedural fairness).

(6)  The wider the discretion conferred on the decision-maker, the more important it must be that he has all relevant materials to enable him properly to exercise it.

62.Of course, government ministers taking decisions will be assumed to be aware of all relevant information available to their departments. A decision-maker exercising a statutory power must ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. However, absent any specific statutory requirement and subject to any Wednesbury challenge, it is generally a matter for the decision-maker to decide what steps to take to collect the relevant information for the purpose of answering the right question: Join Smart Ltd v Town Planning Board [2021] 4 HKLRD 645 at §58.

63.It cannot reasonably be argued that, in discharge of the Secretary’s duty under section 15 of the Ordinance, she cannot take into account all relevant considerations or ascertain all relevant information, which would include whether consent has been obtained or given properly in respect of the Proposed Sale, as well as the validity and weight of any objection, including the identity and locus of any objectors. Objections submitted to the Secretary warrant careful consideration and should not be lightly dismissed without being thoroughly examined, which is to ensure that all relevant factors are taken into account before any determination is made. A section 15 consent should not be given by solely relying without other examination on the assertion of the Applicant that all objectors do not have locus standi. The Secretary is either duty-bound and/or it is sensible to verify the truthfulness, accuracy and reliability of any representation made in the application for a section 15 consent.

64.Though it has obviously taken a long time, the facts show that Secretary has been continuously handling the 2013 Application in accordance with established mechanism and procedure. The NDO has prudently requested submission of necessary documents from the Applicant and continuously communicated with all stakeholders including the Managers, the Initial Objectors, and the Subsequent Objectors. Here, in view of the inconsistent case of membership/shareholding as recorded in the documents submitted and/or factual disputes by the Subsequent Objectors as to the membership/shareholding of the T’ong, it might be thought all the more important for the Secretary to take into account all relevant and available materials to assess the 2013 Application prudently.

65.The preservation of the anonymity of the remaining objector who chooses to remain anonymous and who has objected to the disclosure of his/her identity to the Applicant both comply with the PDPO. Communication between the Applicant and the anonymous objector was been continuously facilitated by the Secretary. There is no hindrance to due process.

66.The Applicant’s reliance on section 55(1) of the PDPO as an exception to the Secretary’s non-disclosure of the identity of the anonymous objector is misconceived. Section 55(1) of the PDPO provides that:

55. Relevant process

(1) Personal data the subject of a relevant process is exempt from the provisions of data protection principle 6 and section 18(1)(b) until the completion of that process. (Amended 18 of 2012 s. 2)

(2) In this section—

completion (完成), in relation to a relevant process, means the making of the determination concerned referred to in paragraph (a) of the definition of relevant process;

relevant process (有關程序)—

(a) subject to paragraph (b), means any process whereby personal data is considered by one or more persons for the purpose of determining, or enabling there to be determined— (Amended 18 of 2012 s. 2)

(i) the suitability, eligibility or qualifications of the data subject for—

A. employment or appointment to office;

B. promotion in employment or office or continuance in employment or office;

C. removal from employment or office; or

D. the awarding of contracts, awards (including academic and professional qualifications), scholarships, honours or other benefits;

(ii) whether any contract, award (including academic and professional qualifications), scholarship, honour or benefit relating to the data subject should be continued, modified or cancelled; or

(iii) whether any disciplinary action should be taken against the data subject for a breach of the terms of his employment or appointment to office;

(b) does not include any such process where no appeal, whether under an Ordinance or otherwise, may be made against any such determination.

67.Section 55 of the PDPO, in my view, is in plain language and clear in its scope of application. The determination of the 2013 Application by the Secretary does not belong to any category of the “relevant process” as defined in section 55(2) of the PDPO. There is neither unfairness to the Applicant nor irrationality of the Secretary in non-disclosure of the identity of the anonymous objector.

68.In conclusion, I do not think there is any reasonably arguable error of law or irrelevant consideration as argued for the Applicant. So far as it is specific to Ground 1, I see no arguable Wednesbury unreasonableness or irrationality in the process of handling the 2013 Application by the Secretary.

69.Ground 1 is not reasonably arguable with any realistic prospect of success.

G.  Ground 2 – Legitimate expectation

70.Based on the background and procedural history of the 2013 Application as canvassed above, the Applicant submits that it had a legitimate expectation that the 2013 Application would be determined within a reasonable time. But there is no explanation on how such a purported legitimate expectation was provided by the Secretary to the Applicant. This is problematic for the Applicant, and I agree with Mr Chik’s analysis as set out in the Initial Response, which is in summary as follows.

71.In Lam Yuet Mei v Permanent Secretary for Education and Manpower Bureau [2004] 3 HKLRD 524 at §72, it was held that in order for a legitimate expectation to arise, the expectation must be induced by the decision-maker either expressly or impliedly, and the representation must be clear, unambiguous and devoid of relevant qualification. But the Applicant has failed to identify any representation made by the Secretary, let alone any clear and unambiguous one, as to the timeframe of the determination of the 2013 Application, and if so, what such timeframe comprises.

72.In any event, in Financial Secretary v Wong (2003) 6 HKCFAR 476 at §§14, 94-95, it was held that an essential quality of a reviewable decision is that it is a substantive determination. The emphasis is on the decisive nature of the exercise of power, and the extremely important judicial review jurisdiction of the Courts is not meant for the purpose of micro-managing the activities of subordinate tribunals or administrative decision-makers.

73.Subject to the matters put forward in support of Ground 3 (see below), the Applicant has otherwise failed to pinpoint the time frame within which it is said the Secretary should have made a decision either to consent to or to refuse the 2013 Application. As touched on above, this points to a conclusion that the leave application should be dismissed on the ground of prematurity.

74.For the purposes of this Ground 2, I do not think it necessary to go into the particular chronology or the reasons why the Secretary might have conducted, for example, a thorough evaluation of the objections and ascertainment of the validity of such objections. The Applicant’s complaint about reasonableness of the time required by and the efforts made by the Secretary in determination of the 2013 Application has been dealt with above. The key point is that, on the facts of the present case as traversed above, there was no representation made by the Secretary to the Applicant in respect of the determination of the 2013 Application as might properly have founded the claimed legitimate expectation.

75.Ground 2 is not reasonably arguable with any realistic prospect of success.

H.  Ground 3 – Wednesbury unreasonableness or irrationality

76.In the Form 86, the Applicant alleges that the Secretary’s inaction in discharging her duty is Wednesbury unreasonable and irrational, and she should be obliged to make a decision on whether to consent to or refuse the 2013 Application within a reasonable time of:

(1)  the Applicant submitting the 2013 Application or upon the Applicant clarifying the want of locus standi of the objection in 2015; or

(2)  the Applicant, by its 2023 Resolutions, reiterating the 2013 Application or upon the Applicant’s clarification on the want of locus standi of the objections latest in May 2024.

77.In the Reply, Mr Chong further contended that:

(1)  When considering a section 15 consent application, there is no supervisory role for the Secretary, whose duty is to apply Chinese law and custom, on the uncontroversial evidence that the 2013 Application had been supported by the votes of 85.69% share of interest when it was lodged and, since 2023, the votes of 100% share of interest when the Secretary’s request to withdraw the 2013 Application was responded to.

(2)  On the basis of the above, given the fact that the Applicant is a business t’ong, the Secretary’s continuous requirements imposed on the Applicant to deal with the objections must be Wednesbury unreasonable and irrational.

(3)  Due to the Secretary’s refusal to disclose the identity of one of the objectors, it was impossible for the Applicant to respond to their objections and ascertain whether those objectors had locus standi to object.

78.The gist of the response of the Secretary is as follows:

(1)  There has been no delay on the part of the Secretary, who has been in continuous discharge of her duty under section 15 of the Ordinance.

(2)  Ground 3 is essentially premised on Grounds 1 and 2 being reasonably arguable.

(3)  In the present case, in due compliance with the established procedure, the Secretary has been making continuing efforts in processing the 2013 Application. The Applicant has failed to specifically identify any inaction on the part of the Secretary causing the purported delay in the processing of the 2013 Application being so unreasonable as to warrant the Court’s intervention.

79.It seems to me that this intended Ground of review, namely Wednesbury unreasonableness or irrationality, is essentially a repackaging of or reliant on Ground 1 and/or Ground 2. Both have failed, and I have already dealt with the issue of irrationality in that context as well.

80.Ground 3 is not reasonably arguable with any realistic prospect of success.

I.  Result

81.I acknowledge there may be a degree of frustration at the time taken in dealing with the 2013 Application, but that of itself does not give rise to a proper basis for judicial review. For the reasons set out above, the Applicant has failed to identify any reasonably arguable public law grounds of review. Therefore, the application for leave to apply for judicial review is dismissed.

82.As to costs, it is appropriate for the costs to follow the event and for the Applicant to bear the costs of the Secretary, to be summarily assessed.

83.The Secretary shall file a statement of costs for summary assessment by 21 March 2025. The Applicant may file any list of objections by 31 March 2025. Thereafter, I shall perform the assessment of costs on the papers.

Mr K M Chong, instructed by Hau, Lau, Li & Yeung, for the applicant

Mr Edward Chik, Acting Senior Government Counsel, Mr Louis Poon, Government Counsel, and Miss Amy Hung, Government Counsel, of the Department of Justice, for the Secretary