Lau Oi Kam v. Director of Lands

CACV 33/2025, [2026] HKCA 869

On Appeal From [2025] HKCFI 239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 33 OF 2025

(ON APPEAL FROM HCAL NO. 2214 OF 2024)

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BETWEEN

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J U D G M E N T

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Hon Anthony Chan JA (giving the Judgment of the Court)  :

1.This is the Applicant’s appeal against the Order of Mr Justice K Yeung (“Judge”)  dated 13 January 2025 dismissing her application for leave to apply for judicial review. The Director of Lands (“Director”)  was identified in the Form 86 as the proposed respondent. As stated in the Judgment below dated 13 January 2015 (“Judgment”), [2], the Form 86 did not identify any judgment, order, decision or other proceeding in respect of which relief is sought in the intended judicial review (“Disputed Decision”).

2.In addition to the appeal, there are 3 applications before the Court which have been taken out by the Applicant, namely, (i)  an application to adduce new evidence on appeal pursuant to a Summons filed on 12 June 2025 (“New Evidence Application”); (ii)  a discovery application against the Director pursuant Order 24, rule 7 of the Rules of the High Court, Cap 4A (“RHC”)  under a Summons filed on 30 June 2025 (“Discovery Application”); and (iii)  an application to review the directions given by the Registrar of Civil Appeals dated 22 July 2025 (“Directions”)  pursuant to a Summons filed on 26 August 2025 (“Review Application”).

3.At the hearing of this appeal, the Applicant produced a 4-page submissions on the “procedural dispute” in this case (“就本案程序爭議作出以下陳述”).  Despite the reluctance of the Court due to its lateness, the document was read. Essentially, apart from repeating some of the arguments advanced in the written submissions of the Applicant which had already been filed with the Court, the Applicant complains that (i)  she had only received a copy of the written submissions of the Director dated 13 April 2026 on the Review Application on 30 April 2026; (ii)  two important documents are missing from the hearing bundles, namely, the Court’s directions dated 16 September 2025 and an urgent application of the Applicant by letter dated 22 September 2025; and (iii)  the Applicant asks for an adjournment of the hearing.

4.There is no reason for the Court to question the submission of Mr Chik, who appeared with Ms Chan for the Director, that the submissions dated 13 April 2026 were served on the Applicant.  It is possible that the document was not delivered to the Applicant due to unforeseen circumstances.  The submissions are straight forward.  There is no reason to believe that the Applicant would not be able to deal with the Review Application. 

5.The directions dated 16 September 2025 and the Applicant’s letter dated 22 September 2025 can be found in the court file and were read by the Court.  The former contains nothing unusual and the matters set out in the latter are largely repetition of those advanced in the Applicant’s written submissions.  There was no reason to adjourn the hearing of this appeal. 

Review Application

6.It is logical to deal firstly with the Review Application because it concerns the conduct of this appeal.

7.The Review Application is supported by an affirmation of the Applicant filed on 26 August 2025, which contains a 2-page attachment referred to as “SUPPORTING AFFIDAVIT” and two exhibits.  Exhibit “LE-1” is a 3-page submission, which deals with matters outside the Review Application, and exhibit “LE-2” is a copy of the Directions.

8.It appears from the materials filed by the Applicant that the two main complaints over the Directions are (i)  pursuant to para 1a thereof, the Director is not required to file and serve any affidavit in opposition to the New Evidence Application and the Discovery Application; and (ii)  para 4 contains an error in that there was no agreement by the parties to the disposal of this appeal on paper.

9.In respect of complaint (i), it was pointed out in para 1a for the attention of the Applicant that the filing of evidence in opposition is a matter for the Director.  That is plainly correct, and this complaint is misconceived.

10.As regards complaint (ii), the error is of no consequence because this appeal was duly listed for hearing before this Court pursuant to a Notice of Hearing dated 21 October 2025, and hence this hearing. The complaint is entirely academic.

11.There are two other points raised in the 2-page attachment to the Review Summons.  First, the Applicant seeks leave to file the Review Application and her supporting affirmation.  As pointed out by Mr Chik, pursuant to the directions of the Registrar of Civil Appeals dated 16 September 2025, the Review Application is to be dealt with by this Court in conjunction with the Applicant’s appeal and other applications.  This matter has been overtaken by event.

12.Second, the Applicant asks for the inclusion of exhibit “LE-1” in the appeal bundles.  That exhibit was duly included in the amended application bundle (經修改的申請文件冊)  under tab 17.  The matter is again overtaken by event.

13.It should be said that in her written submissions on the Review Application (書面陳述書(覆核傳票))  filed on 30 March 2026, the Applicant acknowledged that a hearing has been fixed for her appeal, and “LE-1” has been included in the appeal bundles. 

14.In conclusion, the issues in this application are either misconceived or have been overtaken by events.  The Review Application must be dismissed.

This appeal

15.It appears from the Form 86 and the Applicant’s supporting affirmation (with 3 attachments)  that she is the occupier of a squatter structure which is at risk of having its squatter structure survey record (“Survey Record”)  cancelled (寮屋編號被刪除)[1].  The reason for the cancellation is not apparent from the materials advanced by the Applicant.  However, it is not important for the purpose of this appeal. 

16.In the Judgment, at [2], it was held that the absence of any Disputed Decision was fatal to the Applicant’s leave application and constituted sufficient reason to dismiss the same.

17.The Judge further held (Judgment, [4] and [5])  that the decision to cancel a Survey Record was part of the Government’s policy on land administration, which was not amenable to judicial review.  Furthermore, the attempt by the Applicant to circumvent the administrative decision and challenge the underlying squatter control policy (“SC Policy”)  was ill-founded, because the policy had been in existence since 1982 and any fundamental challenge of the policy would infringe the 3 months’ time limitation under Order 53, rule 4(1)  of the RHC.  In the premises, the leave application was not reasonably arguable, and accordingly dismissed.

18.In the Notice of Appeal, 6 grounds of appeal have been put forward (“Grounds (1)  to (6)”).  They may be shortly stated as follows :

(1)  The Judge might not have carefully considered all the exhibits before the Court, and it was possible that he held a prejudice against the Applicant.

(2)  This case concerns a challenge to the SC Policy and to the existence and legality of power, and is not one against the administrative decision of the Director.

(3)  The Applicant questions the legality of the SC Policy, and asserts that the Judge had wrongly attributed the burden of proof on her.

(4)  The Applicant questions the applicability of Order 53, rule 4(1)  in this case.

(5)  The Judge did not attach appropriate weight to the exhibits or to the absence of record and legal support for the SC Policy.

(6)  Apart from the legality of individual administrative decision, this case concerns the protection of important rights under the law.

19.The Applicant has filed supplemental grounds of appeal dated 26 February 2025.  They are in the nature of submissions rather than additional grounds.

20.We regret to say that there is no merit in any of the grounds of appeal. 

21.The SC Policy had been explained in a number of judgments of the Court (see, eg, Koo Ting Yuen v Director of Lands [2021] HKCFI 649, [2] to [8]).  In short, squatter structures are illegal structures built on Government land but their existence is temporarily permitted by the Government subject to conditions.  The occupiers of squatter structures can acquire no legal right to occupier the land in question.  A Survey Record, which represents the toleration granted by the Government, is an informal licence or waiver in terms of legal analysis[2].  It is liable to be cancelled by the Government[3].  If the Government decides to cancel a Survey Record, it would be acting as the landowner.  Any challenge to the cancellation falls within the private law sphere and not amenable to judicial review.

22.It appears from the Applicant’s submissions (attachment (3)  of her affirmation filed on 20 November 2024 in support of the leave application, pg 2, second complete paragraph)  that she is alive to the fact that the cancellation of Survey Record is not open to judicial review (see 陳家文 訴 地政總署署長 [2024] HKCA 819, [35]).  We regret to say that her attempt to circumvent the legal obstacle was misconceived.

23.The Judge was right that a Disputed Decision was essential to a leave application and the absence of which was fatal to the application before him.  Further, as the Judge pointed out, the attempt by the Applicant to circumvent the legal obstacle by challenging the SC Policy, which had been in existence since 1982, was ill-founded in light of the requirement under Order 53, rule 4(1).  We agree. 

24.Even assuming that the SC Policy may be challenged on judicial review and ignoring Order 53, rule 4(1), the only interest which the Applicant may have in challenging the SC Policy is the cancellation of the Survey Record.  If not for the cancellation, she would not have sufficient interest to ground a leave application.  This demonstrates the futility in her purported challenge of the SC Policy. 

25.In respect of Ground (1), it is clear from the Judgment, [5], that the exhibits produced by the Applicant had been considered by the Judge.  This ground is baseless.

26.As for Grounds (2)  and (3), it has been sufficiently explained above that they are misconceived.  Further, burden of proof was not material in the determination of the leave application. 

27.There is no reason advanced by the Applicant as to why Order 53, rule 4(1)  of the RHC is inapplicable in this case. Ground (4)  is baseless. 

28.Grounds (5)  and (6)  are bare assertions with no substance. 

New Evidence Application

29.The new evidence in question are :

(1)  A letter from the Legislative Secretariat dated 29 April 2025, including attachment 1 (a brief introduction of the housing policy dated 1 April 2003)  and attachment 2 (a press release dated 30 March 2002);

(2)  Emails exchanges with the Lands Department from 3 April to 24 May 2023; and

(3)  An email from Government Records Service dated 24 March 2025 in relation to the public inspection of file XCC(82)107.

30.It is trite that this Court would not consider the admission of new evidence unless the following conditions are satisfied (see Ladd v Marshall [1954] 1 WLR 1489), namely, the new evidence :

(1)  could not have been obtained at the trial with reasonable diligence;

(2)  would or might, if believed, have a very important effect on the mind of the tribunal; and

(3)  is of a sort which inherently is not improbable.

31.The new evidence has been considered by this Court.  This application can be dealt with swiftly.  In light of the fundamentally misconceived nature of the Applicant’s leave application and this appeal, the new materials simply do not assist her case.  Condition (2)  cannot be met.

32.The Applicant contends that this case involves matters of great public importance.  We are unable to agree.  The law in question is clear and the Applicant’s leave application was ill-founded.  In the premises, this application must be dismissed.

Discovery Application

33.The documents sought by the Applicant are as follows :

(1)  Documents from 1982 to 2003 relating to the policy on cancellation of Survey Record, namely, (a)  minutes of meetings on formation of policy; (b)  internal implementation guidelines of the Lands Department; and (c)  departmental correspondence;

(2)  Legal opinions, namely, (a)  original copies of legal opinions on legality of policy from the Department of Justice or lawyers of the private sector; and (b)  risk assessment report on the power to cancel Survey Record in accordance with sections 6 to 13 of the Land (Miscellaneous Provisions)  Ordinance, Cap 28 (“依據《土地（雜項條文）條例》(第 28 章)  第 6-13 條對刪除編號權力的風險評估報告”).

34.It is highly exceptional for a discovery application to be made in an appeal.  It is important to bear in mind that an appeal deals with the challenge to the judgment below.  Discovery concerns the evidence to be placed before the judge hearing the trial or application.  It is dealt with by a master or a judge in advance of the main hearing as part of the preparation work.  It is for the parties to make proper use of the discovery procedure in good time to prepare for the hearing. 

35.The appeal process does not normally allow the admission of any evidence which was not before the court below.  Hence, the stringent requirements for the introduction of new evidence on appeal.  To allow a discovery application to be made on appeal is turning the well-established litigation procedure on its head.  The procedure is there to ensure fair play and efficient determination of disputes.  To allow a discovery application on appeal would infringe the basic principle of finality in litigation and is highly prejudicial to the winning party. 

36.Moreover, to allow discovery on appeal would likely result in considerable delay to the resolution of the appeal, which is again highly prejudicial to the winning party.  If discovery is allowed, and assuming that relevant documents are produced as a result, such evidence cannot be adduced on appeal unless the Ladd v Marshall test is satisfied. Further, it is quite possible for a discovery exercise to turn into a satellite litigation, eg, on arguments over privilege.  Such a litigation will likely have to be referred to the court below.  A party dissatisfied with the result of that litigation may seek to appeal it.

37.The above analysis illustrates the extremely undesirable nature of a discovery application on appeal.  In our view, this type of application cannot be entertained unless the applicant can demonstrate, as threshold requirements, (i)  a compelling explanation why he did not make the discovery application below (“1^st Requirement”); and (ii)  the document sought is likely to have a decisive effect on the outcome of the appeal (“2^nd Requirement”).

38.The materials before this Court do not begin to satisfy the 1^st Requirement.  There is simply no explanation by the Applicant as to why she did not seek discovery below if it was thought necessary.  On the face of it, the documents sought had been in existence for years.  Further, it should be borne in mind that although the court has the power to order discovery in judicial review proceedings, such an interlocutory application is not normally required because dispute of facts in judicial review is not common.

39.Given the misguided nature of the Applicant’s leave application, it is difficult to see how the documents sought can have any effect on the outcome of this appeal.  The 2^nd Requirement is not met either. 

40.For completeness, on the question of relevance of the documents sought, which is an elementary requirement under Order 24, rule 7, this application must fail.  Relevance takes on a different complexion when a case is considered on appeal.  The issues had been crystallized and rulings made by the court below.  The issues on appeal are to be determined by the grounds of appeal.  In this case, where the grounds are without merit, it is difficult to see how the documents sought are of any relevance in terms of advancing the Applicant’s case or damaging that of the Director. 

41.In the premises, the Discovery Application must be dismissed. 

Disposition

42.For the above reasons, this appeal, the New Evidence Application, the Discovery Application and the Review Application are all dismissed.  There is no reason why costs should not follow the event.  We make an order that the costs of this appeal and the three applications be paid by the Applicant. 

43.As to the revised statement of costs lodged by the Director on 17 April 2026, notwithstanding the Applicant’s submission that the charges are high, we believe that they are reasonable.  However, the hearing took less than one hour instead of the estimated 5.  After adjustment, the costs are summarily assessed at HK$105,617.

The Applicant appeared in person

Mr Chik Wai On Edward, Senior Government Counsel and Ms Chan Yu Sze Jenny, Government Counsel of Department of Justice, for the Putative Respondent