Tse Sai Kit and Another v. The Director of Environmental Protection

HCAL 1256/2024

[2025] HKCFI 1447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1256 OF 2024

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D E C I S I O N

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A.  Introduction

1.The grant of leave to apply for judicial review is not ordinarily seen as firing the starting gun for a relay race. But, by his summons dated 6 March 2025 (“Substitution Summons”), the Applicant in this case seeks to ‘pass the baton’ to a substitute applicant to carry on these proceedings after he withdraws. The Substitution Summons requires the identification of the appropriate applicable and guiding principles as might permit that to occur, and then the application of those principles to the circumstances of this case.

2.The Substitution Summons arises against the outline chronology that I granted leave to apply for judicial review on the papers on 12 August 2024, and that I have set and subsequently revised a now compressed timetable for evidence and to hear the substantive application for judicial review on fixed dates commencing 9 June 2025 (with five days reserved). Obviously, the parties need to know how the summons will be determined as soon as possible.

3.Indeed, in a previous ruling given by me in these proceedings, I noted that there are numerous public interests involved in these proceedings. Matters relating to the protection of the environment are matters of public interest. Similarly, matters relating to infrastructure and other government development projects, including the provision of I&T, residential and commercial accommodation, are also matters of public interest. If the challenge mounted in these proceedings is for some reason not to be continued, I think that everyone is entitled to know that in good time.

4.Therefore, and in order to accommodate the parties’ Counsel’s availabilities, I fixed the hearing of the summons at the unusual time of 5pm on 7 April 2025. At that hearing: the Applicant and the intended substitute applicant (“Ms Chan”) were represented by Mr Ernest Ng and Mr Jason Ko; the Respondent (“DEP”) was represented by Mr Benjamin Yu SC, Ms Bonnie Cheng and Mr William Wong; and the Interested Party (“CEDD”) was represented by Mr Abraham Chan SC, Ms Leticia Tang and Mr Zenith Chan.

5.At the end of the hearing, I reserved my decision to be handed down a few days later. This is my decision.

B.  Procedural Background

6.All parties have sought to place some emphasis on parts of the procedural background and chronology. Therefore, it is helpful to set out some of those matters here. I keep this chronology in mind.

7.On 1 August 2024, the Applicant filed his Form 86 seeking leave to apply for judicial review of the DEP’s decision dated 17 May 2024 (“Decision”), approving the EIA Report submitted by the CEDD on 6 December 2023 for the San Tin Technopole Project (“Project”).

8.On 12 August 2024, I granted leave on the papers.

9.On 14 August 2024, the Applicant applied for legal aid in person. It is fair to say that from the outset of the making of the application for legal aid, the solicitors for the Applicant pressed the Director of Legal Aid (“DLA”) to deal with the application with some degree of expedition. The 42-day statutory stay of proceedings was triggered, lasting until 25 September 2024. Around that time, the DLA decided to seek an independent legal advice on the merits of the judicial review application (notwithstanding my grant of leave). On 26 September 2024, the Applicant was informed of that fact, but was also told that the means test for legal aid had been satisfied.

10.On 4 October 2024, the Applicant applied to stay the proceedings pending the determination of his outstanding legal aid application. On 7 October 2024, I declined to order a stay and instead gave directions which seemed to me to effect the appropriate balance of interests, to fix a substantive hearing date and give a reasonable timetable for the steps necessary to bring the matter to that hearing, counting back from the fixed hearing date. The hearing date was fixed with four days reserved commencing 9 June 2025 (though a fifth day was later also reserved).

11.My case management directions were provided to the DLA, together with the request made by the solicitors for the Applicant that determination of the legal aid application be reached without delay.

12.What was regarded by the Applicant as the prolonged process of dealing with his still outstanding legal aid application led to the Applicant’s second application for a stay, made by summons dated 29 October 2024.

13.At the hearing of that application on 11 November 2024, I dismissed the summons with reasons to be given subsequently. My Reasons for Decisions were given on 13 November 2024, [2024] HKCFI 3255. I expressed the view that granting the 14-day stay sought by the summons would be of apparent little benefit, where it would simply be likely that an application for a further extension of that stay would be made were the legal aid application not to be determined within those 14 days. I anticipated that the logic for seeking the stay at all might give rise to a series of rolling applications for stays in the hope that the legal aid application would be finally determined within one of the periods of stay granted. I found that prospect unattractive, and not in the best interests of any party to this litigation.

14.It is fair to say that I also expressed some degree of dissatisfaction or frustration with the way in which the legal aid application was being dealt with, and with the time taken for it. I expressly stated that if a fuse needed to be lit somewhere, it should be lit. I acknowledged that all litigation is important to the litigants, and all applications for legal aid need to be dealt with appropriately. But I pointed out that some litigation is more urgent than others, and some litigation raises or engages more public interest issues than others. I expressed the view that this particular piece of litigation was both more urgent and engages more public interest issues than many others even in the public law sphere.

15.If any fuse was actually lit, it was slow-burning.

16.By summons dated 4 December 2024, the Applicant made the application which he then felt compelled to make, namely for an extension of time to file his expert evidence.

17.I dealt with that matter at a hearing on 30 December 2024, at which I also heard from the DLA’s representative about the progress of the legal aid application. She explained to the Court that a review of the Applicant’s situation (including as to his means) was necessitated by reports from undisclosed third parties. With obvious reluctance, I varied and compressed the procedural timetable, but to maintain the ‘milestone’ hearing dates in June 2025. The first step in that timetable, for the Applicant to file and serve his expert evidence, was moved to 21 February 2025.

18.A short expert evidence report was filed on that date, albeit in a form which the Applicant has since himself described as arising from his inability “to obtain meaningful expert evidence” because of the lack of funding.

19.This was the consequence of the DLA’s decision dated 9 January 2025, refusing the application for legal aid on both the means and merits grounds.

20.It seems that there has been no legal aid appeal from the DLA’s decision to refuse the grant of legal aid.

21.As at the date of this decision, the next step in the procedural timetable set by me is for the DEP and the CEDD to file their evidence in opposition to the application for judicial review on or before 22 April 2025.

C.  Applicable Principles

22.Counsel’s research has identified only two Hong Kong cases which may have some relevance or provide some assistance. However, neither really quite provides full assistance, as one had no argument on the point now arising, and the other did not need any resolution of that argument.

23.The first case in time was Chee Fei Ming v Director of Food and Environmental Hygiene [2014] 5 HKLRD 771. Madam Chee was one of two applicants (in two sets of proceedings heard together), who were Falun Gong (“FLG”) practitioners who sought to challenge a decision requiring the removal of FLG static banners and displays from various locations in Hong Kong. After the rolled-up hearing had been conducted, the Court was informed that Madam Chee had passed away. In his Judgment, Poon J (as the CJHC then was) held that despite her death, the issues raised in her application, which were virtually identical to those raised by the other applicant in the challenge dealt with at the same hearing, could not be cursorily passed over without determination, because of the general public importance involved. In those circumstances, he exercised his inherent jurisdiction to order, by consent (and so without argument or discussion), that leave be given to a different FLG practitioner to be substituted for Madam Chee as applicant, so that the matter might be properly disposed of. The reference to the inherent jurisdiction was footnoted to the English decision of River Thames Society v First Secretary of State [2006] All ER (D) 105 (as to which, see below).

24.The second case in time was Designing Hong Kong Ltd v Town Planning Board [2018] 5 HKLRD 828, a decision of Au J (as Au JA then was). However, that case was not really an application for substitution of one applicant with another, but rather an application for a third party to be joined as an applicant to existing judicial review proceedings. As footnote 9 to §31 makes clear, Au J declined to allow the requested joinder, without it being necessary to decide on the submissions advanced by reference to a number of UK authorities dealing with the substitution of one applicant with another, so as to permit the substituted party to pursue the original claim in place of rather than in addition to the original applicant.

25.However, that substitution question does squarely arise in the present application. For that reason, and in any event, it is obviously helpful for the Court to set out the appropriate principles and guidance arising on an application made in existing judicial review proceedings for the substitution of the applicant by another person.

26.As already indicated, that question has been addressed in a number of UK decisions. They can be briefly identified as follows, in chronological order. All the cases proceeded on the basis that the Court has an inherent jurisdiction to allow substitution, and the question was as to how that jurisdiction fell to be exercised.

27.River Thames Society v First Secretary of State [2006] EWHC 2829 (Admin) concerned a judicial review challenge to a grant of planning consent. Underhill J permitted the substitution of the applicant, an unincorporated Society, by the vice-chairman of that Society, who had appeared in her own right together with the Society before the inspector to oppose the proposed development. Indeed, the Society’s own judicial review challenge was made on the initiative of the vice-chairman. Hence, Underhill J was satisfied that there was a sufficient identity of interest between the original claimant and the person seeking to be substituted, and that the person seeking to be substituted was far from being a stranger who had failed to apply in time seeking to take opportunistic advantage of someone else’s claim.

28.R (SDR) v Bristol City Council [2012] EWHC 859 (Admin) concerned a case in which the applicant had been granted anonymity on the basis that he had been subject to threats of violence and harassment. The judicial review challenge was to a planning body’s rejection of the planning inspector’s recommendation about registering a potential development area in a way which would preclude that development. Underhill J dealt with an application to substitute a new anonymized applicant (“ABC”) for SDR who wanted to discontinue or withdraw the application. He accepted what was common ground, that the Court could permit an individual claimant in judicial review proceedings who is recognised as bringing the proceedings on behalf of a wider group to be substituted by another such claimant if in the course of the proceedings the original claimant for one reason or another does not wish to proceed. Underhill J held that he would have allowed the substitution of ABC as a claimant if the original proceedings were still on foot. However, because the proceedings had actually been discontinued, it was necessary to address the alternative application for ABC to commence fresh proceedings, rather than by way of substitution in the proceedings. This he permitted on the circumstances of the case.

29.In Re an Application by Roseleen Dalton [2020] NICA 27, the Northern Ireland Court of Appeal permitted the applicant to be substituted in place of the original applicant, who had passed away. Both the applicant and original applicant were members of the same family who had decided to seek a fresh inquest into the death of their father. The original applicant was the administratrix of the estate of the father, and had been chosen to be the judicial review applicant for that reason. The new and substituting applicant was the administratrix of the estate of the since deceased original applicant. The Court specifically approved and applied the approach taken by Underhill J in the River Thames Society case.

30.In R (Batmanghelidjh) and Kerman v Charity Commission for England and Wales [2024] EWHC 2637 (Admin), the original claimant was the CEO of a charity, about whose management the Charity Commission had published a report. The judicial review challenge was to the report. Mr Kerman was a senior employee of the charity. After the original applicant had died, Mr Kerman applied to be substituted as claimant. Swift J reviewed the earlier authorities, noting that on the facts of those cases it was evident that in each, the proposed new claimant could have made the claim in question in his/her own right. He accepted the submission that any decision to substitute a claimant must be consistent with the requirement for standing in public law cases, and that there should be a sufficient identity of interest between the original claimant and the proposed substitute. On the facts of the case, Swift J considered that Mr Kerman, as a former senior employee of the charity, was sufficiently identifiable with the charity as to be materially affected by the report which criticised the way in which the charity was operated and run. Therefore, he accepted that Mr Kerman had sufficient interest and sufficient identity of interest for the purposes of being appointed as applicant in substitution for the deceased original claimant. As an aside, it can also be noted that Swift J decided that Mr Kerman’s duties as a joint executor of the estate of the original claimant did not touch upon any matter relevant to whether he should be substituted as a claimant in the public law proceedings.

31.Reference can also be made to an earlier case, Eco-Energy (GB) Ltd v First Secretary of State [2004] EWCA Civ 1566, which related to an appeal against refusal of planning permission made under certain statutory provisions, where there was a late application to substitute someone in place of the original claimant (whose claim had been struck out). Though not a judicial review case, the case stressed the importance of the short timeframe within which such applications are to be made, and the emphasis on finality. The point was made that not only is it important under the statutory provision for applications to be made rapidly, it is also important that the persons affected by planning decisions should know who it is with whom they are dealing.

32.This emphasis on the importance of timing and finality was echoed in the Designing Hong Kong case (albeit in the context of a joinder application), and in a number of the other decisions.

33.Seeking to draw the various strings together, so as to set out a reasonably comprehensive set of guiding principles, it seems to me the following can be stated:

(1)  Judicial review proceedings are dealt with in Hong Kong under the specific provisions found in Order 53 of the Rules of the High Court (“RHC”).

(2)  The provisions in RHC Order 15 rule 6 – applicable to general private law civil litigation – are not applicable to public law judicial review proceedings.

(3)  Nevertheless, in judicial review proceedings, the Court has the inherent jurisdiction to permit the substitution of an original applicant by a replacement/substitute applicant.

(4)  That discretionary exercise has to be exercised on a principled basis, within the proper context of the ordinary requirements of judicial review proceedings.

(5)  It is trite that, absent the grant of an extension of time, an application for judicial review must be made promptly and in any event within the (long-stop) period of three months.

(6)  It seems obvious that an application to substitute one applicant for another will occur only after the expiry of the primary period for commencing the proceedings.

(7)  A real concern arises to avoid the substitute applicant avoiding the consequences of his being out of time, by piggy-backing on an original applicant who has commenced his application in good time.

(8)  Hence, the Court will be astute to avoid the case of a stranger who has failed to apply in time seeking to take opportunistic advantage of someone else’s claim.

(9)  If a simple common interest in the subject matter of the claim were sufficient to permit substitution, that would be a licence for general interchangeability of applicants, which would be wrong in principle.

(10)  Therefore, substitution in judicial review proceedings should not be permitted simply on the basis of a community of interest, in the broad sense, between an applicant who no longer wishes to proceed and a new applicant who wishes to pick up the baton.

(11)  Something more is needed, which properly recognises the importance attaching to time limits in public law claims, which are notoriously short and recognise the particular public interest in finality when it comes to matters of public administration.

(12)  Substitution is only permissible where it can be seen (1) that the original applicant was from the start bringing the proceedings for the benefit of a wider group which was in some sense associated with him in doing so, and (2) that the new applicant has a sufficient identity of interest.

(13)  The focus should be on the nature and extent of the connection between the original applicant, the claim and the proposed substitute – not just on the question of the proper standing of the proposed substitute to have commenced his own proceedings.

(14)  But, of course, if the proposed substitute would have had no standing to have commenced the proceedings, the application must be dismissed.

(15)  The relevant link between the original applicant, the claim and the proposed substitute need not be established by the use of any particular formula, and considerations of formal agency are out of place.

(16)  It is sufficient for the connection to be apparent to the respondent and any interested parties (and to the Court).

(17)  There is no bright line indicating exactly where there begins to be a sufficient identity of interest between the original applicant and the person seeking to be substituted.

(18)  But the connection must be such so that it can be seen that the policy underpinning the mandatory timing of applications for judicial review, and the policy of finality, are not being substantially undermined.

(19)  On the other hand, the Court can also consider whether the withdrawal of the original applicant provides an uncovenanted windfall for the respondent.

(20)  Where the original applicant has not passed away, it is also relevant for the Court to ask, and for the existing applicant to explain, why he wishes to withdraw and to be substituted.

(21)  The answer to that question may be relevant to the discretionary mix.

(22)  For example, if the original applicant has been made the subject of threats and inducements offered in order to get him to withdraw, that might weigh heavily in favour of allowing a substitute applicant to take over the proceedings.

(23)  It would be intolerable if a legitimate challenge to the decision of a public authority were able to be defeated by improper pressure, such as threats and harassment.

(24)  On the other hand, the mere impecuniosity of the original applicant is unlikely to weigh heavily in favour of allowing a substitute applicant to take over the proceedings.

(25)  It is also usually necessary for the Court to ask, and for the proposed substitute applicant to explain, why he had not previously brought his own judicial review challenge within time.

(26)  One answer to that question might be because another person with sufficient identity of interest had already commenced the proceedings.

(27)  Hence the paradigm cases to be seen in the previous authorities: for example, one member of a family replacing another; a senior employee of a charity replacing the deceased CEO; an applicant associated with a particular lobbying or pressure group being replaced by another member of that group; etc.

(28)  Each application must be decided on the particular facts of the case.

D.  The Evidence

34.At the beginning of the hearing, I asked Mr Ng to confirm whether it was the Applicant’s intention to withdraw from this judicial review challenge, irrespective of whether substitution by Ms Chan were to be permitted. Mr Ng confirmed that was the Applicant’s intention. That also informs the context for the discretionary exercise arising on the application.

35.The Substitution Summons was led by the 5^th affidavit of the Applicant and the 1^st affirmation of Ms Chan. It is important to look at what that evidence says, as well as what it does not say. The Substitution Summons was opposed by the 1^st affirmation of Ng Yuen Ching (“Mr YC Ng”), a senior officer in the Environmental Protection Department. Ms Chan filed her 2^nd affirmation in reply. Subsequently, at the hearing, I also permitted the DEP and CEDD to rely on the 2^nd affirmation of Mr YC Ng and the affirmation of Ho Ka Man, a senior engineer in CEDD.

36.In his affidavit, the Applicant identified that he has issued the Substitution Summons “with utmost regret”. He referred to the previous procedural history of the case, and provided an update of the latest events which are said to have “cumulated into this application”. Essentially the update was as to the DLA’s re-investigating the Applicant’s means and eventually refusing legal aid on both the means and merits grounds, by the DLA’s letter dated 9 January 2025. The Applicant stated that the consequence of the lack of funding is aptly demonstrated by the reality that he had not been able to obtain meaningful expert evidence from his intended expert.

37.The Applicant further stated that he would also like to highlight the immense outside pressure that he has had to face during the period, on top of that previously identified in his 3^rd affidavit – which had stated that on 14 November 2024, he and his legal team began to be attacked online (and which exhibited a printout of the online video page of the video in question). He gave the updated information that:

(1)  on 4 January 2025, his personality and integrity began to be attacked online at different social media platforms;

(2)  on 16 January 2025, unpleasant and malicious comments were made online regarding his family members (ex-wife, daughter, life partner and her daughters) which exposed their personal information and private lives;

(3)  on 17 January 2025, his daughter informed him that both she and her mother had started to receive mail addressed to them respectively at their residence (different from the Applicant’s own residence) sent by unknown senders, and enclosing printouts of news clipping and social media coverage on the Applicant;

(4)  on 18 January 2025, the Applicant’s legal team was attacked online on social media; and

(5)  on 18 February 2025, the Applicant was informed by his daughter that she received mail, anonymously sent, addressed to her at an address where she provides long-term volunteer and community service, again enclosing printouts of similar news clippings and social media coverage on the Applicant – though I think it fair to note that the daughter also expressly told the Applicant that she did not think the mail was intimidating.

38.Notwithstanding that activity by third parties, it seems that the Applicant continued to try to seek outside assistance to fund the conduct of these proceedings, albeit without success. Although he has hitherto been assisted by lawyers acting on a pro bono basis, he stated that would not solve the problem of having to face an unaffordable adverse costs order in the event that the judicial review application does not succeed.

39.The Applicant concluded that, in the circumstances of having no means to conduct the proceedings and having to continuously face pressure from his family and those from outside, after thorough consideration and with a lot of difficulties, he had eventually decided that he could not further continue the proceedings any more.

40.The Applicant also stated he has discussed his decision with other persons concerned about the environment in Hong Kong, including Ms Chan. Ms Chan shared the same view, and upon knowing the Applicant’s decision to withdraw she informed him that she was willing to step in and carry on the proceedings, and to do so on the basis of the existing materials filed.

41.There is no suggestion in the Applicant’s evidence that he had discussions about these proceedings with Ms Chan prior to reaching his reluctant decision to withdraw.

42.Ms Chan’s affirmation was stated to be for the purpose of demonstrating to the Court that she has sufficient interest in the matters to which the Form 86 in these proceedings relate. By way of personal background, she is a European Federation of Financial Analysts Societies (EFFAS) Certified Environmental, Social and Governance (ESG) Analyst.

43.Ms Chan stated that she works as a project officer at a non-government organisation (which she did not name), tasked with primary job duties of raising awareness of environmental risks and advocating for vulnerable populations on environmental issues. Her responsibilities include drafting organisational statements and comments on key environmental issues, such as the Hong Kong Wetland Park System and the San Tin town planning project. She has conducted postgraduate studies since September 2023, including a focus on case study analysis of EIA reports. She says that given her involvement in EIA matters and the San Tin Technopole project, she was consulted by various green groups in their preparation of submissions. She also organised a birdwatching field tour at San Tin fishponds, to observe and study the biodiversity of the area and the potential impacts that development projects would bring.

44.Ms Chan also refers to her own previous experience of judicial review applications in environmental and town planning matters. She was the successful applicant in two judicial review cases concerning the proposed re-zoning of land (enclaves) in country parks to permit further village house development. In those cases, her own concerns and those of a number of sectors of the Hong Kong public were the direct environmental impacts the developments would have had on the biodiversity and eco-system in hitherto-preserved natural areas, namely the country parks of the New Territories.

45.In addition to her general belief that it is in the public interest that the procedure set out in the Environmental Impact Assessment Ordinance Cap 499 for large-scale developments be adhered to by Government and its contracted consultants, Ms Chan offered two other number of reasons for substitution as applicant in place of the Applicant. First, given the pressing public interest as regards the matter in these proceedings, the substantive judicial review should not be terminated merely because the Applicant is no longer able to carry on due to personal circumstances. Second, given the difficult personal circumstances encountered by the Applicant, and her sufficient interest in the subject matter, and the public interest involved in these proceedings, she believes that an order for substitution should be granted to enable her to carry on the proceedings.

46.Notably, Ms Chan does not address in any way why she took no prior legal steps in relation to the DEP’s Decision, or why it was not until March 2025 that she came forward (except, of course, by implication that she only did so after the possibility of being substituted was canvassed by the Applicant, after he had made his decision to withdraw his own challenge). Though she might not need to, Ms Chan does not address her abilities to fund these proceedings, or to face any adverse costs order if the judicial review challenge were to fail.

47.In his affirmation filed in opposition, Mr YC Ng pointed out that Ms Chan lacked participation and involvement in the Project, the DEP’s Decision and the subsequent town planning process. The EPD did not receive any comment from Ms Chan during the public inspection of the Project Profile for the Project in May/June 2021, nor during the public inspection of the EIA Report in February/March 2024 (nor within three months after the Decision). Nor did Ms Chan participate in any of the six public engagement briefings in relation to the Project organised by CEDD for green groups and stakeholders in fisheries and agricultural industries in July and August 2023, nor in the briefing in relation to the subject EIA organised by CEDD on 8 February 2024, or any subsequent workshops. No representation was received from Ms Chan during the public inspection under the town planning process.

48.In her reply affirmation, Ms Chan sought to counter that evidence by repeating her concerns, involvement and interest in the Project in both her work aspects on environmental protection matters and individually as a member of the public being a regular recreational birdwatcher. She pointed out that the briefings and workshops said to have been arranged for public engagement purposes were actually not open to members of the public. Instead they were closed-door events, with participation by invitation only via the green groups and stakeholders who might receive invitations shortlisted by the Government. Ms Chan suggested that, despite its public education and advocacy work on environmental issues for years, the NGO she works for (which she still did not name) was not invited to attend any of those briefings and workshops.

49.She pointed out that although there was no representation made under her personal name, she was the author of the submissions that were lodged under the name of her employer NGO during the town planning process, and would have attended to make oral representations but for a change of date (as was shown in correspondence). She also sought to emphasise the significant public interest which she says warrants the continuation of the present judicial review proceedings, where she says she is not a stranger seeking to take opportunistic advantage of someone else’s claim; after all, she stated, she has nothing personal to gain from the judicial review proceedings, which exist purely for the safeguard of public interest.

50.I allowed the subsequent 2^nd affirmation of Mr YC Ng and the affirmation of Ho Ka Man, as they seem to me to identify matters relevant to Ms Chan’s unnamed employer NGO. It is fair to allow the evidence to counter what might otherwise be potentially misleading inferences drawn from the fact that Ms Chan’s employer was not invited to the briefings/workshops. From the materials available, it seems that the NGO in question is the Diocesan Commission for Integral Human Development (“DCIHD”), which appears to be primarily a religious/humanity group with an aim to promoting the integral development of the human person in the light of the Gospel. There is little to be found on DCIHD’s webpage concerning its work of an environmental focus. That explains why it was not amongst the green groups invited to the briefing/workshops in 2023 and 2024. Anyway, EPD did not receive any comment from DCIHD during the public inspection of the Project Profile or the EIA Report.

51.It may also be important to mention that in Mr YC Ng’s 1^st affirmation he stressed numerous aspects of importance of the Project, as follows. The 2013 Policy Address first stated the need to take forward further development of the New Territories North with a view to developing a modern new town. With the National 14^th Five-Year Plan supporting Hong Kong to develop into an international I&T Centre, the Northern Metropolis is to be developed into a “new international I&T city”. It is to be located at the heart of the Northern Metropolis, in close proximity to Shenzhen’s I&T zone, and strategically positioned to be a hub for clustered I&T development, creating synergy between the zones. The Project is intended to provide approximately 300 ha of I&T land, which will effectively address the shortage of local I&T then supplied, and promote a more comprehensive development of the I&T ecosystem. The Project area will be a new community combining industrial development, ecological conversation and a liveable environment. It is the flagship project of the Northern Metropolis, providing about 160,000 employment opportunities, about 50,000 flats, as well as comprehensive transport infrastructure and community facilities. The importance of the Northern Metropolis has been emphasised in the Chief Executive’s 2024 Policy Address on 16 October 2024, describing it as the new engine of Hong Kong’s economic development, as well as providing a better living environment to attract talent and enhance the quality of life of the people of Hong Kong, improving their livelihood and well-being.

E.  The Submissions

52.Mr Ng’s submissions made on behalf of the Applicant can be summarised as follows:

(1)  In exercising its discretion as to whether to order substitution, the Court will have regard to the following factors:

(a)  whether the issues raised in the judicial review cannot be passed over without determination because of the general public importance involved;

(b)  whether there is sufficient identity of interest or whether there is stranger seeking to take opportunistic advantage;

(c)  whether there is prejudice to the DEP and/or CEDD arising from the passage of time or delay;

(d)  whether there are substantive merits in the judicial review claim; and

(e)  the reason why the original applicant can no longer proceed.

(2)  The Court has already recognised the issues of great public importance raised in these proceedings, which should be determined.

(3)  There is a sufficient identity of interest between the Applicant and Ms Chan, because they are both engaged in some environmental activism, and share the public interest in environmental protection and the rule of law.

(4)  Ms Chan was involved in the statutory public consultation under the EIAO and in other social responses to the plans for the Project.

(5)  Ms Chan is far from an opportunist who has failed to apply in time seeking to take opportunistic advantage of the Applicant’s claim.

(6)  No prejudice will be caused to the DEP/CEDD if substitution is granted, where the application itself remains entirely unchanged and the Applicant and Ms Chan are represented by the same team of lawyers. There will be no delay to the determination at the substantive hearing already fixed.

(7)  There are realistic prospects of success, evidenced by the grant of leave to apply for judicial review.

(8)  The Applicant has become the target of widespread harassment and intimidation, and his family also suffers from mail threats and online doxxing. There is at least a serious possibility (if not an undisputed fact) that the Applicant is unable to proceed as a result of illegitimate pressure.

(9)  Without a substitution order, the legitimate challenge to the DEP’s Decision would be defeated, and a matter of great public importance would not be scrutinised by the Court.

53.Mr Yu’s submissions made on behalf of the DEP can be summarised as follows:

(1)  Ms Chan has failed to demonstrate that she shares a sufficient identity of interest with the Applicant, and has only stated that she seeks to demonstrate that she has a sufficient interest in the matters to which the proceedings relate.

(2)  Demonstration of a sufficient interest to have started the claim is not sufficient to justify substitution.

(3)  There is no suggestion that the Applicant was bringing the challenge on behalf of any particular interest group to which Ms Chan belongs.

(4)  Nothing in the evidence suggests anything more than that the Applicant and Ms Chan at best share a general interest in the protection of the environment.

(5)  Sharing that common interest is not sufficient for the purpose of substitution.

(6)  To allow the Substitution Summons would effectively grant a substantial time extension for Ms Chan to seek leave to apply for judicial review, where the delay remains unexplained.

(7)  The DEP and the general public would suffer significant prejudice as a result of the Applicant’s delay in bringing the Substitution Summons and Ms Chan’s delay in seeking to be substituted for the Applicant.

(8)  This where the matters canvassed by Mr YC Ng in his 1^st affirmation come into play.

(9)  Delay is much less tolerated in public interest litigation, which is controlled with particular strictness.

(10)  To say that the proceedings involve matters of great public importance does not assist the Applicant, as it does not relax the standard of sufficiency of identity of interest required for substitution.

(11)  Any alleged pressure faced by the Applicant is not a reason to permit substitution.

(12)  In reality, Ms Chan is a stranger who has failed to apply in time and seeks to take opportunistic advantage of someone else’s claim to launch an out of time challenge.

54.Mr Chan’s submissions on behalf of the CEDD can be summarised as follows:

(1)  Ms Chan’s background in environmental activism generally does not show any sufficient interest in the Project specifically as would warrant late substitution.

(2)  The sufficiency of interest for standing in judicial review is not generally met simply because an individual is an activist interested in environmental protection. Rather, the individual must demonstrate a genuine interest in the aspects of the environment they seek to protect, and that they have sufficient knowledge of the subject to qualify them to act in the public interest in what is, in essence, a representative capacity.

(3)  A sufficient personal interest is different from the public interest. It does not arise simply because a person has an interest in protecting Hong Kong’s environment or otherwise anyone in Hong Kong would have sufficient standing to bring such proceedings or be substituted as applicant to them.

(4)  It is at least tolerably clear from the evidence that the real or primary reason for the Applicant’s withdrawing from the proceedings is because of the refusal of legal aid.

(5)  The refusal of legal aid cannot be of itself a valid ground for substituting the applicant. Further, the Court should strongly discourage such substitutions as a matter of policy.

(6)  There is no proper basis on the evidence for suggesting that without a substitution order, a legitimate challenge would be defeated by improper pressure.

(7)  The evidence adduced by the Applicant – however unattractive the alleged harassment – does not amount to any real intimidation.

(8)  The Substitution Summons was also inexplicably late, where the legal aid application was refused on 9 January 2025 and the summons was issued only some two months later on 6 March 2025.

(9)  Ms Chan should not be permitted in effect to circumvent the three-month time limit for applying for leave to commence judicial review.

55.Though only set out in summary above, I have kept in mind the full detail of the various submissions made for all parties, both in writing and orally.

F.  Application of Principles in this Case

56.I can deal with the application of principles to the particular circumstances of this case under separate (though potentially overlapping) sub-headings. However, the ultimate result comes from the balancing of these various matters, in accordance with the weight that seems to me to be appropriate to each of them.

F.1  Public Interest

57.I have already mentioned the various obvious areas of, potentially competing, public interest in these proceedings. They relate to the protection of the environment, as well as to infrastructure and other government development projects, including the provision of an I&T hub, residential and commercial accommodation.

58.Of course, it is not the Court’s role itself to balance those competing public interests. Rather, the Court is concerned with the legality, rationality, fairness and integrity of the decision-making processes which feed into that balancing exercise. I accept that the issues of general public importance raised by the Applicant in the present proceedings, where I have granted leave to apply for judicial review, are not such as should be cursorily passed over without determination.

59.But it is also necessary to keep in mind that the Court looks at those questions of legality, rationality, fairness and integrity in judicial review proceedings only if those proceedings are properly brought before it. The Court does not look around for decisions made by public authorities which might potentially be open to challenge on public law grounds. Maintenance of the rule of law does not require every potential public law challenge to be identified and determined. If no public law challenge is brought, that is the end of the matter from the Court’s point of view. If an attempted public law challenge is brought out of time, in circumstances which do not properly support the grant of an extension of time, that is also the end of the matter.

F.2  Reason for the Applicant’s Withdrawal

60.I accept that the evidence identifies that the primary, if not sole, reason for the Applicant’s decision to withdraw from these proceedings is because he has failed to obtain legal aid and has been unable to source any alternative funding.

61.It seems obvious that the Applicant (and perhaps his legal advisers acting pro bono) entertained the hope or even expectation that, were leave to be granted to apply for judicial review, then the Applicant would be granted legal aid as would provide the funding to permit him to pursue the challenge to a substantive hearing and to avoid the consequences of a potential adverse costs order. Once it became clear that legal aid would not be granted, and the Applicant was unable to identify any alternative source of funding, that was the primary driver for the Applicant’s decision to withdraw.

62.Indeed, that the Applicant continued to seek alternative funding after the refusal of legal aid seems to me to identify that the alleged harassment matters were of substantially less importance to the decision to withdraw.

63.That is not to say that the harassment and doxxing described by the Applicant in his evidence should ever be considered by any person to be acceptable. It is not acceptable, and it is deeply unattractive that persons pursuing legitimate legal rights in matters of public interest should ever be concerned that they or their families might face potential harassment and intimidation from faceless and nameless third parties hiding in the shadows. I have already echoed what was said in the English cases that it would be intolerable if a legitimate challenge to the decision of a public authority were able to be defeated by improper pressure from third parties.

64.Nevertheless, however unattractive it was, and even bearing in mind the insidious nature of such activity and the pressures it might inflict, I do not think the harassment described by the Applicant in his evidence was necessarily performed specifically in order to cause the Applicant to withdraw from these proceedings. Many of the matters contained in the social media activity related to other aspects of the Applicant’s circumstances.

65.I have taken into account that the legal aid application process took rather longer than the Applicant, those advising him, and the Court either anticipated or even thought necessary – and that helps to explain the timing of the making of the Substitution Summons. It is possible, perhaps even likely, that had the refusal of legal aid been several months earlier, then the Applicant might have reached the decision to withdraw from these proceedings and seek to be substituted somewhat earlier than he did. It is speculative to ask whether Ms Chan would have been willing at that earlier time to take over the proceedings, or if some other potential substitute might have been found. But even in those circumstances, the Substitution Summons would have been issued well after the expiry of the time limit for bringing a judicial review challenge to the DEP’s Decision. Hence, I do not think the legal aid application timing is very weighty in the current balancing.

F.3  Prejudice

66.The potential prejudice of which the DEP and CEDD complain (see above) has been present since the commencement of these proceedings. It is the legitimate, though some might think regrettable, consequence of the Applicant’s exercising his legal right to challenge the Decision by the DEP where, as my grant of leave shows, there is real room for argument about its lawfulness. Assuming the Applicant were to continue to press the challenge, they would have to put up with that prejudice until the hearing of the substantive judicial review application, which everyone agrees should occur as soon as possible, and for which I have fixed the evidential timetable and milestone hearing dates.

67.On one view, the Applicant’s change of mind, reflected in his decision to withdraw from these proceedings, is an uncovenanted windfall for the DEP and CEDD (as may be reflected even by the number and seniority of the Counsel deployed to seek to gather up the fruit). So it might be thought that if the substitution of the Applicant by Ms Chan is permitted, the DEP and CEDD would be no worse off than if the Applicant were to continue with his own challenge.

68.But that is in reality only the case if Ms Chan and the Applicant have the necessary sufficient identity of interest. If they do not, and the Applicant withdraws his challenge, then the DEP and CEDD are simply in the position they would have been in had no challenge been made by anyone at all, or had an application been made only out of time and in circumstances where there was no good reason to extend time. There is nothing wrong with that position. Despite the number of cases brought to this Court, it is of course the usual position that there is no public law challenge made to the decisions of public authorities.

F.4  Sufficiency of Identity of Interest

69.Ultimately, this is the key point in the exercise of the relevant discretion as to whether or not to permit the requested substitution of the Applicant by Ms Chan.

70.For present purposes, I am prepared to accept that had Ms Chan been the original applicant, making an in time application for leave to apply for judicial review so as to challenge the DEP’s Decision, I might have accepted on a flexible and holistic basis that she had sufficiently arguable standing to bring the challenge, such as might lead to the grant of leave to apply. But that assumption in part rests on the absence of any ‘better’ applicant having come forward, whereas I do not think it can be a matter of real dispute that the Applicant appears to be at least a ‘better’ maker of the particular challenge.

71.Nevertheless, it also seems to me that had Ms Chan made her own application for leave to apply for judicial review by a Form 86 dated 6 March 2025 (the date of the Substitution Summons), I would almost certainly have refused leave. I would have done so primarily on the basis of delay, which I have already noted is wholly unexplained by Ms Chan.

72.I take into account that there is no suggestion in the evidence from either the Applicant or Ms Chan that she previously contemplated bringing a challenge to the DEP’s Decision about the Project, but left it to the Applicant to do so. This is in the context that Ms Chan is no stranger to judicial review applications, and can reasonably be taken to know of and broadly understand the public law principles and the strict time limits involved. In short, Ms Chan has not offered any explanation for delay – except perhaps by way of the apparently compelling inference to be drawn that Ms Chan actually had no intention to mount a challenge to the DEP’s Decision until after she learned from the Applicant that he had decided to withdraw his own challenge, and following discussions between them about a potential substitute.

73.Further, whilst it can certainly be said that the Applicant and Ms Chan both have an interest in environmental matters, the protection of the environment and the rule of law in general, I do not think that there has been demonstrated a sufficiency of identity of interest as would justify substantially undermining the policy behind the strict time limits and finality. It may not be helpful to debate whether Ms Chan can properly be described as a stranger seeking to take opportunistic advantage; I have in mind her express denial of that fact, and in particular of the possible pejorative perception of the phrase. The real meaning is simply one way to identify the difference between a person who has sufficiency of identity of interest with the original applicant and one who does not. I also acknowledge the absence of any bright line as to where the sufficiency of identity of interest begins. But the overlap between the Applicant and Ms Chan seems to me to be little and not specific.

74.So, after anxious consideration, I have reached the conclusion that, in the circumstances of this case outlined in the evidence, Ms Chan falls on the wrong side of the line.

G.  Result

75.I acknowledge that there may be disappointment and regret among some persons or groups that the public law challenge initiated by the Applicant will not now come to a determination. But that is simply the consequence of three factors: (1) no one other than the Applicant came forward to mount the same or similar challenge, leaving only the Applicant who was apparently prepared to do so; (2) the Applicant’s own decision that he is no longer willing or able to continue the challenge; and (3) the analytically robust application of the appropriate guiding principles which point firmly that the discretion potentially to substitute the Applicant with Ms Chan at this time should not be exercised in favour of substitution on the particular circumstances of this case.

76.Therefore, I dismiss the Substitution Summons.

77.Nevertheless, in accordance with his clear statement of his intention to withdraw, I grant leave to the Applicant to withdraw the challenge made by him in these proceedings.

78.As a result, the substantive judicial review application falls away. I revoke all previous outstanding directions and I vacate the hearing dates in June 2025.

79.I will deal with all consequential matters of costs separately, on paper. I leave it to Counsel to seek to agree and offer for my consideration an appropriate timetable for the provision of materials to enable me to deal with the question of costs on paper.

H.  Postscript

80.I have already noted that the lawyers who have acted for the Applicant thus far have done so on a pro bono basis. It is in the best traditions of the Bar and for Solicitors that they are prepared to provide such legal advice and representation on a pro bono basis. Whether they act on that basis or not, it is troubling that lawyers may find themselves attacked on social media platforms for acting for their clients and for seeking to advance their clients’ cause – when those lawyers are doing precisely what their professional and constitutional duty requires, namely zealously representing their clients, including clients with views or causes some people may not like.

81.It is a reassuring fact that in Hong Kong there can be no suggestion that the government or public authorities seek to suppress legal challenges brought against them. Rather, the fact is that they meet such challenges on the merits on an open and principled basis. Following that proper respect for the rule of law, private citizens should also not seek to place undue pressure on litigants or their lawyers. Public comment on a fair and informed basis cannot be criticized, but improper pressure through (usually anonymous) harassment, threats or intimidation can never be acceptable.

Mr Ernest Ng and Mr Jason Ko, instructed by Patricia Ho & Associates, for the applicant and intended applicant

Mr Benjamin Yu SC, Ms Bonnie Cheng and Mr William Wong, instructed by the Department of Justice, for the respondent

Mr Abraham Chan SC, Ms Leticia Tang and Mr Zenith Chan, instructed by the Department of Justice, for the interested party