Chan Choi Shing (in His Personal Capacity As the Beneficiary and in His Capacity As the Executor of the Estate of Chan Yuk Lun, Deceased v. District Lands Officer, Tai Po and Another
Read the full judgment text of HCAL 1899/2025 on BabelCite. This High Court CFI judgment was delivered on 17 July 2026.
1. This is the determination of two judicial review applications concerning the same plot of land (“Lot”) situated at Section B of Lot No. 261 in Demarcation District No. 8, Tai Po, New Territories.
Cited by 1 case · Cites 9 cases
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HCAL 1899/2025 [2026] HKCFI 3369 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1899 OF 2025 ________________________
AND HCAL 2744/2025 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2744 OF 2025 ________________________
________________________ (Heard together)
___________________ J U D G M E N T ___________________ A. Introduction 1.This is the determination of two judicial review applications concerning the same plot of land (“Lot”) situated at Section B of Lot No. 261 in Demarcation District No. 8, Tai Po, New Territories. 2.The Applicant is not the owner of the Lot, but (1) previously he assisted the since deceased owner (“Deceased”) of the Lot in his dealings with the Respondents, the District Lands Officer, Tai Po (“DLO”) and Director of Lands (“Director”) respectively, and (2) he is also now the sole beneficiary of the Lot under a partial will of the Deceased. 3.In HCAL 1899/2025 (“HCAL 1899”), the Applicant seeks to challenge the decision dated 23 June 2025 (“Refusal Decision”) refusing to consider and to accede to the Applicant’s application for the issuance of Certificates of Exemption (“COEs”) in respect of the intended building, site formation and drainage works at the Lot pursuant to sections 4 and 6 of the Buildings Ordinance (Application to the New Territories) Ordinance Cap 121 (“BOANTO”). 4.In HCAL 2744/2025 (“HCAL 2744”), the Applicant seeks to challenge the decision dated 3 October 2025 (“Revocation Decision”) revoking and cancelling Building Licence No. 171/2015 dated 28 September 2017 and registered in the Land Registry by Memorial No. 18020101370077 (“Licence”) granted to the Deceased to erect upon the Lot one building containing not more than three storeys subject to the terms and conditions contained in the Licence, and rejecting the Small House Application. 5.On 1 September 2025, in HCAL 1899, I granted leave to apply for judicial review on the papers. 6.The Form 86 in HCAL 2744 was filed on 11 December 2025. 7.By consent of the parties, HCAL 1899 was stayed pending the determination of leave to apply for judicial review for HCAL 2744. 8.On 29 December 2025, I directed that HCAL 1899 and HCAL 2744 be heard together for directions. Two overarching questions were brought for determination, being (1) whether the impugned decision in HCAL 2744, i.e. the Revocation Decision, is amenable to judicial review, and (2) if not, whether the challenge made in HCAL 1899 is academic and should be dismissed. 9.The matter was brought to an oral hearing on 28 April 2026. At the hearing, the Applicant was represented by Mr Leung Sze Lum of Counsel, and the Respondents were represented by Ms Ebony Ling of Counsel. 10.At the end of the hearing, I reserved my decision. This is my Judgment. B. Factual Background 11.The Deceased was an indigenous villager, being a male person of at least 18 years of age descended through the male line from a person who was in 1898 a resident of an established village in Hong Kong. The Applicant, on the other hand, is not an indigenous villager. 12.Under the Small House Policy, an indigenous villager in the New Territories may upon meeting certain criteria apply for permission to erect, for once in his lifetime, a small house on a suitable site within his own village. 13.The Deceased acquired the Lot for the consideration of HK$300,000 by Assignment dated 29 September 2010. 14.By the Licence dated 28 September 2017, the Government had granted a licence to the Deceased (as “Licensee”) to develop a building on the Lot with certain specifications and conditions known to be required for “Small Houses” in the New Territories. The Licence contains, amongst others, the following terms, which are relevant for present purposes:
15.Clause 3 will be referred to as the “Non-alienation Clause” and Clause 4(a) will be referred to as the “Disposal Clause”. 16.At all material times, the Applicant assisted the Deceased in obtaining the Licence and liaised with the DLO and submitted necessary proposals to apply for the COEs so as to construct a “Small House” at the Lot. 17.The Applicant also assisted in making similar applications to the DLO for the construction of “Small Houses” at various lots adjacent to the Lot, namely Sections A, C, D and E of Lot No. 261 DD8. 18.COEs for the building of “Small Houses” were granted for a number of those lots in around June/July 2024. However, no COEs were granted for the Lot itself. 19.By will dated 4 July 2017 (“Will”), the Deceased devised the Lot to the Applicant. The Will was a partial will covering only the Lot, with the Applicant being the sole beneficiary of the Lot under the Will. 20.On 31 August 2020, the Deceased passed away in Hampshire, England. 21.On 12 October 2021, the Applicant obtained Probate as the Executor of the Deceased’s Estate (limited to the Lot). 22.On 15 October 2024, the Applicant attended the office of the DLO and had a meeting with DLO staff to follow up on the issuance of the COEs in respect of the Lot. However, the DLO refused to entertain the application unless the Applicant was to pay a premium upfront before commencement of building works. In the alternative, the Applicant was advised first to transfer the Lot to a direct relative of the Deceased before further applying for the issuance of COEs in respect of the Lot. 23.By letter dated 22 October 2024, the Applicant through his solicitors Messrs Terry Yeung & Lai (“TYL”) referred to matters discussed during the meeting, set out the reasons for DLO’s wrongful refusal to issue the COEs in respect of the Lot and demanded the DLO issue the COEs within 21 days thereof. 24.By letter dated 23 June 2025, the DLO wrote to the Applicant in response to TYL’s letter and rendered the Refusal Decision as follows:
25.As already stated, on 1 September 2025, the Applicant obtained against the DLO and the Director leave to apply for judicial review of the Refusal Decision, i.e. in HCAL 1899. I also gave directions to bring the matter to a substantive hearing, including for filing evidence. 26.Subsequently, the deadline for the Respondents to file affirmations in opposition was extended to 6 October 2025. 27.One working day before that deadline, the DLO wrote to the Applicant by letter dated 3 October 2025, giving the Revocation Decision, namely that:
28.Hence the commencement by the applicant of HCAL 2744. C. Relevant Legal Provisions 29.By its long title, BOANTO provides for the application of the Buildings Ordinance Cap 123 (“BO”) to the New Territories, and provides for COEs from certain provisions of the BO for building works, site formation works and drainage works for certain buildings in the New Territories and to make necessary consequential amendments. 30.The relevant provisions of BOANTO are as follows:
31.Part 1 of the Schedule to BOANTO provides for the structural dimensions of building works as follows:
32.The informational pamphlet “Building New Territories Exempted Houses” (LDPM_0068 (09/2024)) issued by the Lands Department and last revised in September 2024 also assists. 33.Section B provides for the guidelines to apply for COEs in the construction of New Territories Exempted Houses, including Small Houses. The relevant paragraphs are as follows:
34.Importantly, the Small House Policy states that an applicant may apply to the Lands Department “once during his lifetime”. For the purposes of this case, there is some room for interpretation with regard to “once during his lifetime”. 35.The Applicant emphasises that it is a “once in a lifetime” right to apply to the relevant government authority for a small house to be built, and once permission has been granted that right has been exercised and the owner of the lot, who is an indigenous villager, has the right to develop the land in accordance with his application. Mr Leung submitted there is subsequently a right to develop the land, which will survive the death of the indigenous villager who applied for the Small House. 36.Conversely, it is the Respondents’ stance that the “once during his lifetime” requirement refers specifically to the indigenous villager’s lifetime, and that right is extinguished when that indigenous villager passes away. D. HCAL 2744/2025 D.1 Whether HCAL 2744 Amenable to JR 37.The first question to be determined is whether leave for HCAL 2744 should be refused on the basis that the Revocation Decision is not amenable to judicial review. 38.Mr Leung submitted the Applicant’s case targets the constitutionality of the provision of the Non-alienation/Disposal Clauses in the Licence by interference with the Deceased’s and/or the Applicant’s right of private ownership of property and right of inheritance under the Basic Law (“BL”) and Hong Kong Bill of Rights (“BOR”) as well as the implementation of the Small House Policy and Article 40 of the BL (“BL 40”), thus providing sufficient public elements of sufficient significance to render the impugned decision amenable to judicial review. 39.On the other hand, Ms Ling submitted that the Revocation Decision was not amenable for the following reasons:
40.Ms Ling argued the Deceased breached the Non-alienation Clause and the Disposal Clause. How those clauses should be interpreted, Ms Ling submitted, is purely a matter of private law. 41.The principles on amenability are well-settled and need not be repeated in detail. It suffices to say that:
42.It is authoritatively settled that a Government lease is a private lease, and ordinarily in relation to steps taken on the lease the Government is acting in a private capacity and thus not subject to judicial review. When modifying leases – or choosing whether to grant or withhold its consent to the modification of the terms of a lease – the Government acts in a private capacity. It is not right that a claimant suing a public body for breach of contract, who is dissatisfied with the remedy afforded him by private law, should be able to invoke public law simply because of his dissatisfaction, understandable though it may be. If he could do so, it would place a party who contracts with a public body in an unjustifiably more privileged position than a party who contracts with anyone else, and correspondingly put the public body in an unjustifiably less favourable position than any other contracting party: see, for example, my own decision in Tang Chiu Man v Secretary for Justice for Director of Lands [2025] 5 HKLRD 165 at §§67-69. 43.The amenability of decisions by the Government as owner or lessor of government land to grant, modify or terminate a lease or licence was further explained by Andrew Cheung J (as the Chief Justice then was) in Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215 at §57. Those principles can be summarised as follows:
44.The decision in Koon Ping Leung v Director of Lands [2012] 2 HKC 329 distinguished between an application for Government land under the Small House Policy and modification of a Government lease at §§18-21:
45.In Hung Hing and 66 others v Director of Lands [2015] 5 HKLRD 516 at §31, Cheung CJHC (as the Chief Justice then was) reiterated that matters beyond the scope of the Small House Policy are not amenable to judicial review:
46.In Chau Tam Yuen Ching v Director of Lands [2013] 3 HKLRD 169 at §38, the decision of the Director to terminate government land licences over plots of land in Sai Kung were held to be not amenable to judicial review on the basis that termination of a licence is to be governed by the terms of the licence and the validity of a termination must be adjudicated according to the private law of contract or land law. 47.In Sime Darby Motor Services Ltd v Director of Lands [2024] HKCA 207, the issue of amenability for decisions based on government leases was discussed. G Lam JA held at §57 that the decision by the Director to reject the application for an in-situ land exchange was not one made by way of application or implementation of the Small House Policy, but rather a decision made squarely in a contractual context where the Government as landlord had contractual rights under the existing leases to prevent the land from being developed and used in any manner inconsistent with the user and building restrictions, and the concomitant freedom to decide whether to release those rights, i.e. terminating the lease. 48.Sime Darby is somewhat analogous to the current situation, where the decision in some way touches upon the Small House Policy as the application was rejected on the basis that the land was to be preserved for small house development by indigenous villagers. However, it was also stated at §60 that it does not follow that any matter concerned or associated with the Small House Policy or its implementation injects a sufficient public element into the decision and is therefore amenable to judicial review. What must be taken into account is the capacity in which the decision-maker is acting and the context surrounding the decision. 49.Taking into account the above authorities, I conclude that there are no sufficient public law elements in HCAL 2744 which make it amenable to judicial review. HCAL 2744 at its core seeks to challenge what is essentially a private contractual arrangement between the Deceased as licensee and the Government as licensor. The Revocation Decision arose from a contractual right offered to the DLO and/or the Director as land agent of the Government in its private capacity as licensor pursuant to clause 31, where there was a breach of the Non-alienation Clause and the Disposal Clause through the demise of the Lot from the Deceased to the Applicant. 50.I am more so persuaded by this perspective, particularly where the identity of the Applicant is taken into account. Unlike the Deceased, the Applicant is not an indigenous villager. His interest in the land arose not out of an application under the Small House Policy, but rather the Will devised by the Deceased. With respect, I fail to see how BL 40 is engaged in the Applicant’s case. 51.Lastly, the Applicant submits that there has been an abuse of power by the DLO and/or the Director because they took into account HCAL 1899 and extraneous considerations in the decision-making process leading to the Revocation Decision. It is contended that the ulterior motive of the Revocation Decision was precisely to render the Refusal Decision in HCAL 1899 academic. 52.Mr Leung relied on three facts as evidence of bad faith, being:
53.On 2 November 2021, the Probate, with the Will annexed therein, was registered in the Land Registry in respect of the Lot. The Applicant was a party to it and was named as the Executor of the Deceased’s Estate and the 2nd Owner of the Lot in the Deed of Mutual Grant of Rights of Way with Plans dated 2 June 2023, which was registered on 16 June 2023. 54.I have previously dealt with the question of bad faith in relation to judicial review applications in the Tang Chiu Man case, and I shall endeavour to repeat those principles once more:
55.I am inclined to agree with Ms Ling that the mere fact that the DLO did not terminate the Licence earlier did not mean he did so later in bad faith. That the Revocation Decision was rendered one working day before the extended deadline for the DLO and the Director to file evidence in opposition for HCAL 1899 is also not enough for me to infer bad faith. 56.Further, the fact that the DLO granted extensions for the completion of the Licence previously did not necessarily mean the DLO would continue to grant extensions in the future. There was agreement by the DLO to suspend the exercise of the rights provided in the conditions of the Licence upon payment of the premium. But, as a matter of fact, the DLO reiterated in their letters that the Government would reserve those rights. As such, the Government as licensor and the DLO and/or the Director (in the capacity of land agent) was at all times entitled to revoke the Licence in accordance with its terms where a breach has occurred. 57.Nor do I think there was acquiescence of the bequest of the Lot from the Deceased to the Applicant. To the contrary, it seems to me on the materials that the DLO was not aware of the Deceased’s death until the 15 October 2024 meeting. As such, until he was informed differently, it was entirely within the subjective knowledge or assumption of the DLO that the Deceased was alive and there was no breach of the Licence yet. In any event, upon discovering the death of the Deceased, the DLO acted as was within his powers to revoke the Licence in light of the breach. 58.Therefore, I am not satisfied there is “cogent” evidence to demonstrate the Revocation Decision was made in bad faith. To the contrary, the DLO and/or the Director effectively exercised a contractual right to revoke the Licence when it discovered a breach had occurred, namely a breach of the Non-alienation Clause and the Disposal Clause. 59.For the reasons above, I find HCAL 2744 is not amenable to judicial review. D.2 Grounds of Review 60.For completeness, though not strictly necessary, I shall briefly consider the substantive grounds for judicial review below. 61.The Applicant put forward four intended grounds of review, being:
62.As to Ground 1, Mr Leung highlighted the need to consider the legitimate aim of the Non-alienation Clause and the Disposal Clause. If the aim is to preserve the unity of the indigenous community, i.e. to give indigenous villagers the right to apply for a Small House and to prevent the sale of those Small House rights to others, then there is no necessary need for a blanket restriction which includes disposing of the property by will. 63.Taken to its logical conclusion, this line of reasoning cannot be right. The object of the Small House Policy is for the provision of property rights for indigenous villagers in the New Territories and the protection of those rights. It is not disputed by the parties that the privileges under the Small House Policy and the Licence are intended to benefit the indigenous villager personally, once in his lifetime, to permit building a small house in his own village for his own occupation. 64.I do not agree that the legitimate aim is so narrow as to be merely to act against sham arrangements or misrepresentations to the DLO. That is only one minor facet of the clauses. The Non-alienation Clause and the Disposal Clause are in place to achieve the object of the Small House Policy. Therefore, the legitimate aim can more accurately be said to be for the provision and protection of property rights for indigenous villagers as described above. 65.The Applicant is not an indigenous villager, and therefore is not actually affected by the Small House Policy or the conditions of the Licence as the Deceased would be. As I have said, it seems to me that BL 40 is simply not engaged in this case. Further, the Non-alienation Clause and the Disposal Clause are not aimed merely at the prevention of the sale of Small House rights, but rather any alienation of those rights. 66.Mr Leung advanced the argument that the personal representatives of the deceased indigenous villager may not be able to develop the Lot under the Licence due to those restrictions in the Licence, even though the development is in the personal interest of the deceased indigenous villager. With respect, I fail to see how that development benefits or is in the interest of a person who is deceased and can clearly no longer benefit from it. 67.Ground 1 is not reasonably arguable with any realistic prospect of success. 68.The parties in their submissions dealt with Grounds 2 and 3 together, and I shall do the same. I note the following facts which are relevant:
69.In Eastrade Holdings Ltd v Secretary for Justice [2025] 1 HKLRD 400 at §59, it was stated in the context of a lease that there are different types of waiver, including:
70.It is clear that in extending the time for completion of the Licence, the DLO did not at any point make any unequivocal representation that he was waiving the right to revoke the Licence in case of a breach of the Non-alienation Clause and/or the Disposal Clause. As to waiver of breach, I find against any such waiver. Indeed, the DLO expressed the opposite, to the effect that the Government reserved any rights under the Licence, including the right to re-entry, and would exercise those rights in case of any breach by the Licensee in the future. I also find that there has been no waiver of covenant. In no circumstances did the DLO state or represent that he would waive the right to complain of future breaches by the Deceased and/or the Applicant. 71.Mr Leung briefly touched upon the inclusion of “demise” in the Disposal Clause. The ordinary legal meaning of demise refers to a conveyance or transfer of an estate by will or lease. The Disposal Clause provides that the licensee shall not dispose of the Lot, including by way of a demise. Mr Leung argued there is no positive act of transfer or divesting of the Deceased’s rights and interests in the Lot by the Will yet, as no assent or conveyance was executed in favour of the Applicant, and therefore he has not yet obtained any beneficial interest in the Lot. Instead, he argued, the Applicant only has a chose in action in the Deceased’s Estate properly administered: see Chung Wing On v Chung Wing Piu [2006] 3 HKC 546 at §15, citing Williams on Wills (2002) (8th Ed). 72.Generally, section 66(2) and (3) of the Probate and Administration Ordinance Cap 10 provides that the assent shall operate to vest in the beneficiary the estate to which the assent relates and shall relate back to the death of the deceased, and that an assent shall be in writing. But the important point here is that the Disposal Clause provides that the Licensee shall not demise “or enter into any agreement so to do, whether directly or indirectly”. 73.In reality, this question is one which ultimately goes back to amenability. Bearing in mind the purpose of judicial review and the principle that the court does not substitute its own view as regards what decision should be made in place of the decision-maker, I agree with Ms Ling that this is a matter of interpretation with regard to the Disposal Clause and/or the Non-alienation Clause, and one which necessarily depends upon the precise facts of the case which the DLO and/or the Director are best-positioned to determine. 74.Grounds 2 and 3 are not reasonably arguable with any realistic prospect of success. 75.As to Ground 4, I repeat my above analysis on bad faith, and I find that Ground 4 is also not reasonably arguable with any realistic prospect of success. E. Whether HCAL 1899 is Academic 76.The relevant principles are also well settled. Where a question is purely hypothetical or academic in the sense that there are simply no events that have occurred that form the basis for the question to be answered, this Court will not entertain it. However, the Court does have jurisdiction where the question before the Court is said to be hypothetical or academic only because the real dispute that drove the parties to litigation happens no longer to be in existence at the time of the hearing, even though the relevant facts giving rise to the dispute were real and had actually taken place. In doing so, the Court will closely examine the relevance or utility of any decision: see Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20. 77.HCAL 1899 is said by Ms Ling to be hypothetical or academic only because the Licence was revoked on 3 October 2025 subsequent to the commencement of HCAL 1899 on 25 August 2025. Nevertheless, the Applicant submits the relevant facts giving rise to the dispute were real and had actually taken place. 78.Mr Leung submitted that the Court may exercise its discretion to hear HCAL 1899, as it is in the public interest to do so and there is real and practical utility to the judicial review application. In particular, Mr Leung argued that the determination of the issues in HCAL 1899 is of great public importance as it affects all personal representatives in the same or similar position as the Applicant. 79.However, it seems to me, quite simply, that where the Licence was revoked, the Deceased (and by extension the Applicant) no longer had the necessary power to develop the Lot, and as such the question of COEs no longer exists, and a judicial review application in relation to the issuance of those COEs is no longer a real and existing issue. 80.Further, there had been a breach of warranty before the Refusal Decision was given. The Licence was granted on 28 September 2017. The Non-alienation Clause provides that the Licensee must give a warranty that he has never entered into any arrangements or agreement with any person to transfer, alienate, dispose or otherwise deal with the Lot or any interest therein or his rights in and over the Lot, including the right to develop the Lot. However, the Deceased made the Will on 4 July 2017 devising the Lot to the Applicant. On that basis, there was a breach of the Non-alienation Clause at the time the Licence was entered into, and, upon knowing the Deceased made a Will and devised the Lot to the Applicant, the DLO and/or the Director were entitled to void the Licence. Had the DLO and/or the Director known about the Will earlier, they might not have granted the Licence in the first place, and the very question of the issuance of COEs becomes an academic exercise. Also, as a matter of established law, the Applicant had no right to develop the Lot as a personal representative. 81.Even if it were to proceed to a substantive hearing, I do not think my findings would be any different. I note Mr Leung’s submission that HCAL 1899 gives rise to a discrete point of law, about whether a personal representative of a deceased person, who owned a lot with the right to develop a Small House conferred by licence, has the capacity or power to develop the Lot. But that his now academic in these proceedings, and I think this is an issue which should be considered with reference to real and existing circumstances, instead of a determination posed upon a hypothetical situation. 82.Therefore, I dismiss HCAL 1899. F. Result 83.Leave to apply for judicial review is refused for HCAL 2744 on the basis that it is not amenable to judicial review and the intended grounds of review are not reasonably arguable with a realistic prospect of success. 84.HCAL 1899 is also dismissed, on the basis that it is academic. 85.As to costs, I see no reason why they should not follow the event. Therefore, I order the Applicant to pay the Respondents’ costs, to be taxed if not agreed. However, I will make this order first on a nisi basis, which will become absolute after 14 days unless a prior application is made to vary this order. Any variation application will be dealt with on paper.
Mr Leung Sze Lum, instructed by Terry Yeung & Lai, Solicitors, for the applicant in both cases Ms Ebony Ling, instructed by the Department of Justice, for 1st and 2nd respondents in HCAL 1899/2025, and 1st and 2nd putative respondents in HCAL 2744/2025 | ||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
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