Lam Kin Chung Morning Sun Charity Fund v. Town Planning Board and Another
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HCAL 517/2026 [2026] HKCFI 3739 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 517 OF 2026 ________________________ BETWEEN
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________________________ D E C I S I O N ________________________ A. Introduction 1.The Applicant (“LKC Fund”) is a tax-exempt charitable organisation, a company limited by guarantee. Its sole director is Dr Lam Kin Chung. The LKC Fund is described as the contractor of the ‘Queen’s Museum’, situate at 61 Queens Road East and 3-5 St. Francis Street, Wan Chai, Hong Kong. Dr Lam is also a director of Hostford Development Ltd (“Hostford”), the applicant in Hostford Development Limited v Town Planning Board [2024] HKCFI 2219, [2024] 5 HKLRD 520 (“Hostford”). Hostford is the owner of the residential development at 3, 5, 7 St. Francis Street and 61 Queen’s Road East (“Hostford Site”). 2.Part of the argument in this case is whether it is largely a re-run of the argument in an earlier case and/or therefore an abuse or a collateral attack on my judgment in Hostford. 3.By Form 86 dated 4 March 2026, the LKC Fund seeks leave to apply for judicial review against the 14 November 2025 decision (“TPB Decision”) made by the Town Planning Board (“TPB”), not to amend the draft Wan Chai Outline Zoning Plan No. S/H5/32 (“Draft OZP”) despite the opposing representations in respect of the Draft OZP, but to submit it to the Chief Executive in Council (“CEIC”) under the Town Planning Ordinance Cap 131 (“TPO”). 4.Further, by summons dated 15 May 2026 (“Amendment Summons”), the Applicant seeks leave to amend the Form 86 to introduce a challenge to the 14 April 2026 decision (“CEIC Decision”) made by the CEIC, approving the Draft OZP. The approved OZP (“Approved OZP”) was gazetted and announced on 24 April 2026, and renumbered S/H5/33. 5.The LKC Fund now accepts that, as a result of the CEIC Decision, it is that decision which must be the primary target of the intended challenge, but asserts that it remains necessary to look back at the TPB Decision, because if there were to be reasons for that to be quashed, the CEIC Decision would also be tainted. 6.The primary ground of judicial review advanced by the LKC Fund is “process irrationality”, but there are additional grounds also advanced. Though the oral argument was relatively succinct, I have not overlooked the exhortation to re-read the detail of the arguments set out for the LKC Fund in the Form 86 (and its proposed amended form). 7.I gave directions for there to be an oral hearing of the application for leave. At that hearing: (1) the LKC Fund was represented by Mr Justin Lam and Ms Phoebe Lee of Counsel; (2) the TPB and CEIC were represented by Ms Bonnie Cheng SC leading Mr Sampson Siu of Counsel; and (3) the Putative Interested Parties (together, “PIPs”) were represented by Mr Anthony Ismail of Counsel. Ms Cheng and Mr Ismail each opposed the grant of leave for various procedural and other reasons, which I shall address. 8.At the end of the hearing, I reserved my decision to be handed down later. This is my Decision. B. Background 9.Much of the background is not controversial and can be conveniently summarised as follows. I take it from the parties’ skeleton submissions, the affirmation evidence, the TPB Paper (as defined below) prepared for the representation hearing, the minutes of that representation hearing (“TPB Minutes”), and my own judgment in Hostford. 10.The 1st to 3rd PIPs own the land at 31-36 Sau Wa Fong and 8-12 St Francis Street (“Item A Site”), which was previously zoned in 3 different zonings under the Approved Wan Chai Outline Zoning Plan Number S/H5/31, namely: Residential (Group A) (“R(A)”) – 29.1%; Residential (Group C) (“R(C)”) – 44.9%; and the remaining ‘Road’ area (“Road”) – 26%. 11.The Item A Site is accessible from St Francis Street (SFS”), which is a one-way southbound local road ascending in a steep 1:6 gradient from Queen’s Road East to Star Street, with vehicular traffic going uphill. The Item A Site is a sloping site with its western portion abutting SFS at a level of about 12 metres above Principal Datum (“mPD”) and its eastern portion on building platform at 19.5mPD in a terraced area, namely Sau Wa Fong. 12.The eastern side of SFS has no pedestrian pavement towards the foot of the slope (“SFS Foot”). Further upwards, the pedestrian pavement comprises alternating steep stairs and flat surfaces. As it has been described in this application, SFS is not a disability friendly slope, and there is no formal road-crossing facility along it. The Hostford Site is opposite to the Item A Site along SFS, and also abuts Queen’s Road East. 13.On 17 November 2022, the 1st to 3rd PIPs made an application (“Section 12A Application”) to the TPB under section 12A of the pre-amended Town Planning Ordinance Cap 133 (“Pre-amended TPO”) to rezone the Item A Site from R(A), R(C) and Road to Residential (Group A) 9 (“R(A)9”), with a building height restriction of 110mPD, to facilitate a residential development with arts facilities (“Indicative Scheme”). The proposal included direct vehicular access, an internal transport area with a turntable, a setback of about 10 metres from SFS, and a 24-hour barrier-free public passageway, not less than 4.5 metres wide, linking SFS and Sau Wa Fong. Though the Indicative Scheme proposed an elevator and walkway connecting SFS and Sau Wa Fong, there was no proposed levelled walkway to Queen’s Road East, and still approximately 29 metres from that point to Queen’s Road East. 14.Public inspection and comments were invited on the Section 12A Application. The public comments received included addressing topics like traffic impact, road safety impact and Hostford’s proposal to extend the 1st to 3rd PIPs’ barrier-free public access to Queen’s Road East by a connecting footbridge over SFS to Hostford’s development then under construction at the Hostford Site (“Alternative Proposal”). 15.In Hostford, I accepted that Hostford had put forward the Alternative Proposal not merely in pursuing its own commercial interests, but with the genuine good faith intention of linking proposed projects for wider public benefit, including through promotion of cultural heritage and the arts, as well as barrier-free access to a greater extent than might perhaps otherwise occur. The main concern was pedestrian safety arising from the increase in residents from the proposed redevelopment of the Item A Site, who will use SFS as the means of access and egress. As will be seen, and as it not surprising given Dr Lam’s involvement with both Hostford and the LKC Fund, the LKC Fund has similar concerns. 16.The Section 12A Application was considered by the Metro Planning Committee (“MPC”) of the TPB, with the benefit of (1) a paper (“MPC Paper”) prepared by the Planning Department (“PlanD”), (2) PlanD’s presentation on the background to the Section 12A Application, the 1st to 3rd PIPs’ proposal, comments from government departments, public comments and PlanD’s views, assessment and recommendations; and (3) attendance of the 1st to 3rd PIPs to make oral submissions and respond to questions. 17.On 22 September 2023, the MPC partially agreed to the Section 12A Application (“2023 Decision”). 18.In December 2023, Hostford commenced judicial review proceedings so as to challenge the 2023 Decision. In November 2024, that application was dismissed by my judgment in Hostford. 19.Shortly before that, on 21 October 2024, the 4th PIP – the developer of land at 1, 1A, 2 and 3 Hill Side Terrace and Nam Koo Terrace (“Item B Site”) – made a further section 12A application for the Item B Site to be rezoned for residential development with historical building conserved. 20.It can be noted that the indicative figures put on the two developments at the Item A Site and the Item B Site were about 216 units and 312 units respectively. 21.In January 2025, the MPC partially allowed the 4th PIP’s application. Together with the partial agreement relating to the Item A Site, the two partial agreements were carried into a single draft plan for public scrutiny, i.e. the Draft OZP. The aim was to carry the matters forward. 22.On 6 June 2025, the MPC agreed that the Draft OZP was suitable for exhibition, and it was exhibited for public inspection between 27 June and 27 August 2025. 23.During that period the LKC Fund made a representation (“R12”) opposing the Draft OZP, on the grounds directed principally to pedestrian safety and accessibility at the SFS Foot. It can also be noted that Hostford also made a representation (“R11”) opposing the Draft OZP, on substantially similar and overlapping grounds as were advanced by the LKC Fund in R12. 24.In September 2025, the TPB decided to consider all valid representations together. The PlanD prepared a paper no. 11026 (“TPB Paper”), to provide the TPB with information relevant to its consideration of the representations. 25.The TPB Paper, at §5.3.2, set out a broad summary of the major grounds and views of the parties making representations, as well as the responses, in relation to ‘Traffic Aspect and Barrier-free Access’. As this formed a major part of the intended judicial review challenge, I can set out the main parts as follows:
26.Reference should also be made to the TPB Paper at §5.3.6, headed ‘Traffic Aspect and Barrier-free Access’:
27.On 14 November 2025, the TPB held a meeting (“TPB Meeting”), at which it considered the various representations – some supporting, and some in opposition to, the Draft OZP. At the TPB Meeting, both Hostford and the LKC Fund made oral presentations (with a PowerPoint or video) to explain their opposition to the Draft OZP. Amongst the points made by Hostford was the stated need to set a cap on the number of units for the Item A Site and the Item B Site. Amongst the points made by the LKC Fund was the proposal for a bridge over SFS, i.e. the repetition of the Alternative Proposal. 28.The various matters considered at the TPB Meeting were recorded in minutes (“TPB Minutes”), which were later published on 28 November 2025. 29.The TPB Decision can be found in §§ 58-61 of the TPB Minutes, as follows (underlining in original):
30.The TPB Decision was communicated to the LKC Fund on 5 December 2025. 31.The Draft OZP was duly submitted to the CEIC for review, and approval was given on 14 April 2026 under section 9 of the TPO, i.e. the CEIC Decision, leading to the Approved OZP. The CEIC Decision, as announced in a press release and gazetted on 24 April 2024, itself gives no reasons. C. The Intended Grounds of Review 32.Together with the proposed amendment so as to challenge the CEIC Decision, the LKC Fund advances five intended grounds of judicial review – four against the TPB Decision and one against the CEIC Decision:
33.It is settled that, in order to obtain leave to apply for judicial review, an applicant must show public law grounds of review which are reasonably arguable and with a realistic prospect of success. I am not sure it is helpful to say, as Mr Lam sought to emphasise, that that is a relatively “low hurdle”. It is enough to recognise that the leave stage is to filter out cases which are not reasonably arguable, but is not the occasion to seek to resolve matters which are shown to be reasonably arguable; that is for substantive hearing. But it may help to remember that leave is not to be granted merely because the underlying merits of a decision can be expressed again using public law labels and language. 34.I can deal with the intended grounds of review, each in turn. It is fair to say that the main focus in Mr Lam’s submissions was on Ground 1. I shall address the merits of Ground 5, in part in the context of the assessment as to whether to permit the amendment proposed by the Amendment Summons. 35.But it is helpful first to consider some preliminary matters, comprising various procedural objections advanced by Ms Cheng and Mr Ismail – perhaps understandably characterised by Mr Lam as a “kitchen sink of technical objections”. D. Standing 36.The first technical objection is the PIPs’ challenge to the LKC Fund’s standing. I think the point can be dealt with fairly shortly. 37.The relevant legal test as to standing is whether the applicant has “sufficient interest in the matter to which the application relates” within the meaning of section 21K(3) of the High Court Ordinance Cap 4 and Order 53 rule 3(7) of the Rules of the High Court (“RHC”). 38.In Kwok Cheuk Kin v Chief Executive in Council [2023] HKCFI 3074 at §112, I offered a summary of the applicable principles, as follows:
39.Mr Ismail submitted that the LKC Fund, whose sole director is Dr Lam, should not be regarded as having sufficient interest simply because it is the contractor and “sponsor” of the Queen’s Museum, and as a charitable company limited by guarantee. Indeed, its main object is to “promote education, teaching, education about culture, cultural exchange, learning, and education about art and science in Hong Kong and other parts of the world”. Mr Ismail sought to emphasise that the LKC Fund has no objects relating to town planning, accessibility design, heritage or the Wan Chai community. Hence, he said, there is no logical connection between the LKC Fund’s charitable mission and planning or land-use matters. 40.However, Mr Lam relied on the fact that section 6 of the TPO permits “any person” to make representations in the planning process as regards a draft OZP. The LKC Fund made representations in the very planning process now under intended challenge in these proceedings. Its representation was considered by the TPB, and is referenced and addressed in the TPB Minutes. The LKC Fund’s representations were rejected (at least in the sense that no amendment was made to the Draft OZP), so that it was affected by that rejection. Indeed, I think it is correct that a person who has expressed opposition in the planning process to a proposed rezoning is ordinarily not to be regarded as a mere busybody. Nor is a person disqualified, merely because his interest is in part commercial or local. 41.Looking at matters in the round, and on balance, I would not refuse leave to apply for judicial review on the basis that the LKC Fund lacks sufficient standing. 42.On the same basis, it might be thought that Hostford would also have had standing to bring a similar challenge as is made in these proceedings, but presumably a conscious decision has been made not to do so (perhaps in light of the failure of its previous application in Hostford). Therefore, it may remain relevant to keep in mind the connection between Dr Lam, the LKC Fund, Hostford and the Queen’s Museum in the context of other aspects of these proceedings, in particular the complaint of abuse of process or collateral attack. E. Delay 43.Ms Cheng and Mr Ismail also submitted that the intended challenges to the TPB Decision and the CEIC Decision are out of time. 44.In doing so, Mr Ismail reminded me that I have previously stressed – see, for example, the same Kwok Cheuk Kin case at §§122-124 – that:
45.Ms Cheng stressed that the three-month time limit starts to run, not from the date when an applicant knows of the grounds, but from the time when the grounds for challenge arise. Further, where the relief sought is an order for certiorari to quash a decision, the date when the grounds for the application first arose shall be taken to be the date of the specific judgment, order, conviction or proceeding which is under attack. 46.She also emphasised, correctly, that there must be a “good reason” for extending time, if an extension of time is required. Here, she said, not only was the Form 86 filed out of time, the LKC Fund has not even made any application for extension of time, and no explanation for any delay has been provided. 47.The submission is based upon the fact that the TPB Decision was made on 14 November 2025, and it is said – albeit there was no actual evidence on the point – that the gist of that decision was published on the TPB’s website on the same day. Hence, it was submitted, time began to run on that day, and not the date when the LKC Fund came to know of its grounds. Because the Form 86 was filed on 4 March 2026, that was about three weeks after the expiry of time on 14 February 2026. The date of the publication of the TPB Minutes, it was argued, might be relevant only to the exercise of discretion for an extension of time. 48.In response, Mr Lam submitted that the LKC Fund’s intended challenge, and the main ground, depends upon the reasoning of the TPB Decision, and not merely its result. Therefore, time could not sensibly run until the TPB Minutes were published, since it is those minutes which identify and permit formulation of the reasoning-based challenge, not possible from the bare gist. 49.I have proceeded on the basis that, insofar as it might be necessary, Mr Lam was making an oral application for extension of time, on the basis (which it is common ground would be relevant to the exercise of discretion) that the proper formulation of the intended challenge was only possible after the publication of the TPB Minutes. I do not think it is necessary for me to decide whether the Form 86 was not issued in time, where it seems to me that I would in principle accede to a request for the relatively short extension of time needed if the application for leave to apply for judicial review in this case had sufficient merit. 50.I can, therefore, return to this point after considering the merits (see below). 51.I can also note, albeit without comment at this stage, that the TPB, CEIC and PIPs all argue that the intended challenge to the TPB Decision has become academic, as a result of the making of the CEIC Decision. Obviously, the CEIC Decision was made much later, even after the date of the Form 86, though that may give rise to its own procedural issues. F. Abuse of Process / Collateral Attack 52.Perhaps the technical objection most forcefully advanced on behalf of the TPB and CEIC as well as the PIPs is that the present application pursued by the LKC Fund is an abuse of process and/or an impermissible collateral attack on the judgment in Hostford. It can be noted that my decision in Hostford is final, because Hostford’s appeal from it was dismissed by the Court of Appeal by consent, with costs to the TPB and the relevant interested parties. 53.Ms Cheng drew attention to Hostford’s Ground 3 in the Hostford case which was summarised at §35(3) of the judgment as follows:
54.Indeed, she said, at the heart of Hostford was the issue of whether the TPB (by the MPC) fairly considered the Relevant Objecting Comments and gave adequate reasons for rejecting them. 55.Ms Cheng drew attention to the close connections between the LKC Fund, Dr Lam and Hostford – which the LKC Fund failed to draw to the attention of the court, in suggested breach of its duties of full and frank disclosure (see below). She pointed out that, in these proceedings, Ground 1 is directed that the TPB’s assessment of pedestrian safety, where it is plain that the LKC Fund relies on substantially the same material facts as those raised in Hostford. In that case, I held at §67 that the true complaint of the applicants was that inadequate weight had been given to the concerns on pedestrian safety, but I pointed out that the assessment of weight is an exercise of planning judgment which is for the TPB, and that the Court must be astute to ensure that such a challenge is not a cloak for a rerun of the arguments on the planning merits. The ground was rejected because (1) the MPC/TPB did not fail to take into account the Relevant Objecting Comments, which had been fairly presented to the MPC, and (2) pedestrian safety and the Alternative Proposal involved qualitative assessment and/or the exercise of planning judgment which were for the TPB and not the Court. The question which the TPB had to decide was whether the Section 12A Application would give rise to some insurmountable or unacceptable impact on the local community and not any adverse impact. 56.Ms Cheng submitted that, whilst the LKC Fund has sought to re-characterise the pedestrian safety issue as a Wednesbury unreasonableness challenge rather than as a failure to consider public comments or to provide reasons, the evidential basis upon which the LKC Fund relies – namely the TPB Paper §§ 5.3.2 and 5.3.6, and the TPB Minutes §§34(c) and 53 – comprise matters already considered in Hostford. Further, in Hostford, I concluded at §50 that the issues, factors, planning consideration and assessments, including the comments of government departments and PlanD’s views concerning the proposed provision of direct vehicular access, the designation of a non-building area, and the requirement for a 24-hour public passageway, as recorded in the MPC Paper and the MPC Minutes, had been fairly and comprehensively presented to MPC members. 57.Ms Cheng submitted that Ground 2 in the present proceedings, relating to the failure to impose a limit of residential units, was also the expression of concern about an expected increase in traffic volume, which was again an issue fully scrutinised in Hostford. 58.Ms Cheng also submitted that Ground 3, relating to the discussions about the Alternative Proposal, was a non-starter because of the findings I made in Hostford at §§72 and 73. Overall, she submitted, it is evident that the present application is an attempt to raise the same complaints through a different entity. 59.For his part, Mr Ismail pointed out that the LKC Fund had also made representations or comments in the context of the previous Section 12A Application relating to the Item A Site, including in support of the Alternative Proposal proposed by Hostford – a fact I recorded at §30 of Hostford. Those comments were rejected by the MPC and in the Hostford judgment, so that the LKC Fund is abusing the process just as Hostford would be abusing the process if it was an applicant in these proceedings. Mr Ismail criticised the LKC Fund is essentially asking for a ‘second bite at the cherry’ to challenge the 2023 Decision in the name or guise of a challenge to the TPB Decision which took forward the 2023 Decision. 60.Mr Ismail relied on the decision in John Gardiner v Mayo County Council [2024] IEHC 5, where it was held that the essence of the concept of a collateral challenge is that a party who has the benefit of an administrative decision, which has not been challenged within the prescribed time-limit, should not be exposed to the risk of having the validity of that decision challenged in later proceedings which seek to quash a subsequent decision on the basis that the earlier decision was invalid. In that case, all the grounds pleaded sought to question the validity of the underlying decision to grant planning permission, hence the judicial review proceedings was held to involve an impermissible collateral challenge to an earlier decision in respect of which the time limit had already expired. 61.Mr Lam emphasised, however, that the LKC Fund does not challenge the 2023 Decision, and none of the grounds of the present application are premised upon the 2023 Decision being invalid or erroneous. Instead, the intended challenge is to the TPB Decision and the CEIC Decisions, as stand-alone decisions based on independent reviewable errors concerning their decision-making and reasoning process in 2025 and 2026 respectively. Indeed, it would have been impossible to have challenged those decisions at the time of the challenge made in Hostford. Hence, the principles on Henderson abuse are inapplicable, and there is also no basis to suggest that the legality and validity of the TPB Decision and CEIC Decision should have been determined in Hostford. 62.Mr Lam submitted that the John Gardiner case is inapplicable, precisely because in that case all of the grounds pleaded in the judicial review were directed to the validity of the underlying decision to grant planning permission, and it would not have been possible for a Court to rule in favour of the applicant without implicitly finding that the decision to grant was invalid. I agree the case can be distinguished. The facts of the present case are rather different. 63.Mr Lam also pointed to the facts that: (1) there were other applicants in Hostford, which it was not suggested were controlled by Dr Lam; (2) the Item B Site was not the subject of the 2023 Decision nor the challenge in Hostford; and (3) the 2023 Decision was made by the MPC, whereas the TPB Decision was made by the TPB. 64.It seems to me that there is some genuine overlap between grounds advanced in these proceedings and the grounds advanced in Hostford. It might be said that it would be necessary for the Court to ask whether the present grounds identify materially new areas of public law, or whether they repeat in substance (albeit in a later procedural setting) objections that I have already held to be matters for planning judgment. 65.Indeed, I think it fair to say that there is some flavour of possible abuse. Ground 1, which is perhaps the main thrust of the application, depends on the same essential concern considered in Hostford, namely whether the planning decision or solution dealt adequately with pedestrian safety in the relevant environment. There is also overlap on other grounds. Further, where Hostford and the LKC Fund made similar and overlapping representations to the TPB, and where Hostford was one of the applicants last time, and the LKC Fund is the applicant this time, it is easy to be left with the impression that the current proceedings have been brought by the LKC Fund and not Hostford so as to overcome or side-step anticipated potential problems of the likely criticisms of abuse of process or collateral attack. 66.But, I think Mr Lam is ultimately likely correct when he points out the chronology, and the simple fact that the TPB Decision and the CEIC Decision – and the precise reasoning for them – did not exist when Hostford was litigated. It is fair to say that the precise complaints now made, including the focus on alleged process irrationality, as regards the later decisions could not have been raised before. 67.Further, though I do not think the point was raised by Mr Lam, it seems to me that I should proceed on the basis that the TPB’s consideration of the representations made to it, and the process of deciding whether to submit the Draft OZP with or without amendments to the CEIC for possible approval, was a genuine process not necessarily resulting in the same views previously expressed by the MPC (not least in the circumstances of the additional Item B Site). 68.On balance, therefore, I would not shut out the present application on the basis of abuse of process or collateral attack. G. Whether Challenge to the TPB Decision Has Become Academic 69.Ms Cheng and Mr Ismail submitted that, following the CEIC Decision, the TPB Decision became wholly academic because the Draft OZP had been superseded by the Approved Plan. Hence, the continued intended challenge to the TPB Decision is an abuse of process. Both relied in particular on the decision of Au-Yeung J in Yau Ka Po v TPB (unreported, HCAL 67/2015, 14 June 2016) at §§61-62, 68 and 78. 70.In that case, the two distinct stages under the TPO were identified. At the first stage, the TPB does not make a final determination of the rights of anybody, but conducts an administrative consultative process, during which it may entertain objections. Its decision is decisive of whether the draft plan should go to the CEIC, whether amended or unamended, but it is not decisive of the question of the final form of the OZP. At the second stage, the CEIC may approve the draft plan notwithstanding that any requirements under the TPO have not been complied with. The accompanying documents submitted by the TPB are to enable the CEIC to consider the draft plan in substance, independent of the TPB’s own consultation process. Any errors in the administrative process of the TPB would not necessarily vitiate the CEIC’s decision. Reliance on Smart Gain Investment Ltd v TPB (unreported, HCAL 12/2006, HCAL 12/2007, 6 November 2007) at §128 – where both the TPB and CEIC’s decisions were quashed – should not be followed, because that is inconsistent with the binding decision of the Court of Appeal in Kwan Kong Co Ltd v TPB [1996] 2 HKLR 363 at 369J and 380I, in which it was held that the subsequent gazetting of the CEIC’s decision approving the plan meant that the draft plan ceased to have any effect and the challenge to the TPB’s decision was academic. 71.Reliance was also placed on the decision in Society for Protection of the Harbour Ltd v CEIC [2004] 2 HKLRD 902 at §§57-65, which also emphasised the independence of the CEIC’s decision from that of the TPB. 72.Indeed, I accept that once a draft OZP has been approved by the CEIC under section 9 of the TPO, it becomes an approved plan under section 1A(2)(b). Hence, that draft OZP is superseded and ceases to have any force and effect. 73.Mr Lam’s response was to argue that the TPB Decision remains relevant, because the CEIC’s approval of the Draft OZP may be tainted by it. I accept that as a possibility, even if the main focus or target – as I have already noted Mr Lam agreed – has become the CEIC Decision. As a matter of principle, if the TPB process was arguably unlawful, and the CEIC approval is said to rest upon or be infected by it, the earlier process may remain live: see Chan Ka Lam v CEIC (unreported, HCAL 28/2015, 24 November 2017) at §§34-36. This does not require, and I have worked on the basis that Mr Lam was not really pressing, a continued freestanding challenge to the TPB Decision as such. Rather, he was saying that the errors in process which led to that decision would have tainted the CEIC Decision. 74.Hence, it remains necessary to consider the grounds advanced. I do so in the particular circumstances of this case, and I am not intending to make a more general decision as to the circumstances in which it might remain open to continue to look at the process leading to a decision by the TPB after a draft OZP has been submitted to and approved by the CEIC. H. Ground 1: Process Irrationality and Breach of Tameside Duty 75.The legal basis for judicial review on the ground of irrationality or Wednesbury unreasonableness has two aspects:
76.Process rationality requires the decision-maker to have regard to all mandatory relevant considerations and no irrelevant ones, but it goes further than that. The process of reasoning should contain no logical error or critical gap. An impugnable decision might be one that “does not add up”, perhaps because there is an error of reasoning which robs the decision of logic, or because there is an unexplained evidential gap or a leap in reasoning which fails to justify the conclusion. 77.In this case, the LKC Fund submitted that there was process irrationality in reaching the TPB Decision. Mr Lam emphasised, for the avoidance of doubt, that the LKC Fund does not assert outcome irrationality, nor does it seek to argue that the only reasonable outcome was to accede to the opposing representations. 78.Mr Lam submitted that there was a serious logical flaw for the TPB to reason that the proposed measures – for example, the 10 metre setback at Item A Site, the proposed barrier-free access and footbridge between SFS and Sau Wa Fong, and the internal transport design within the Item A Site – would address the objecting representations insofar as the SFS Foot is concerned. As he put it, pedestrians still need to traverse the SFS Foot to access or egress the Item A Site, so that it is illogical to suggest that an improvement to another area, excluding the SFS Foot, would address any safety at the SFS Foot. Put more shortly, the criticism advanced by Mr Lam was that the logical connection between the problem and the solution is missing. 79.The LKC Fund also sought to place reliance on a traffic report by Mr Edmund Chu. In that report, the expert opined that the barrier-free access route from the Item A Site to Wan Chai would take around one minute longer, and the route to Admiralty would take around 4½ minutes longer, compared with traversing SFS including the SFS Foot. He also stated – notwithstanding his acceptance that the proposed public passageway offers a safer passageway for pedestrians to access the various redevelopments as well as existing developments in SFS – it can be commonly observed that pedestrians have a tendency to use the shortest or fastest route or more convenient route for travel, so that some pedestrians would still use the existing access even with the provision of the safer passageway. That is said by Mr Lam in submission to identify an evidential gap in the planning assessment that changes to the existing pedestrian walking patterns are anticipated. 80.However, the traffic report by Mr Chu was not put before the TPB, and the LKC Fund filed no traffic impact assessment of its own. This was not part of its representations to the TPB, and this material was produced only for the purposes of these proceedings. On that basis alone, it cannot found a complaint that the TPB failed to consider it, though it may be that certain aspects of the report can be taken to have some bearing on whether the TPB’s anticipation about walking patterns was rationally founded. 81.I have set out above the part of the TPB Minutes comprising the TPB’s reasoning. The reasoning included that the relevant technical assessment on traffic had been previously conducted under the two section 12A applications, and the view was that it had been confirmed that there were no insurmountable technical impacts arising from the proposed developments with the implementation of appropriate mitigation/improvement measures. Further, the development details and other technical aspects would remain subject to the scrutiny of concerned Government departments in the subsequent development stage of building plan submissions and/or land exchange application. Reference was also made to the fact that, upon completion of the proposed developments, there would be the new barrier-free pedestrian network connecting Queen’s Road East to SFS through Sau Wa Fong. 82.Though expressed in overall or compendious terms, there was a readily identifiable and proper basis for the conclusion reached. As Ms Cheng correctly identified, pedestrian routing and safety were addressed in the TPB Paper at §§5.3.2 and 5.3.6 – see above. Further, the TPB Minutes at §§28-40 evidence the discussion of the traffic and pedestrian aspects, including the various representations made. It seems to me that, with the materials being addressed, the conclusions of the TPB sufficiently evidence its reasoning, and the explanation as to why this particular controversial issue was decided as it was. 83.As to whether there was any logical flaw or the like, it should be borne in mind that the TPB was concerned with whether the increase in residential units would produce an impact which was not insurmountable once mitigated. It was not concerned with whether all use of the SFS Foot would cease, or whether there remained any adverse impact. As I previously held in Hostford at §67, I think it correct that the TPB’s task was to decide whether the proposals, or later the Draft OZP, would give rise to some insurmountable or unacceptable impact on the local community and not any adverse impact. A conclusion that the residual impact is acceptable once mitigated is not an assumption that no impact remains. It is the exercise of planning judgment, and it does not identify a logical gap in the reasoning. 84.Indeed, the question is not whether the mitigation was the best answer to the condition at the SFS Foot, but whether the overall arrangements which would come from the proposed developments were rationally connected to the question of acceptability. It seems to me plainly that they were. It may be correct that the 24-hour barrier-free passageway and lift connections do not of themselves alter the SFS Foot, but they provide alternative ways for pedestrians to travel to and from Wan Chai and Admiralty. As Mr Chu stated, those routes are safer. It seems to be understandable common ground that that is the point. Those who take the safer route can avoid the SFS Foot, and the use of the SFS Foot would thereby also be reduced. Mitigation which provides an alternative and/or reduces the use of an existing hazard is rationally connected to that hazard. The TPB was not required to eliminate the risk before it could rely on the overall proposals identified in the Draft OZP. 85.Further, that some individuals may choose not to take the safer route does not seem to me to identify any leap of logic in the reasoning of the TPB. In any event, the traffic impact assessments canvassed in the TPB Paper – and the evidence of consideration in, for example, §28 and other paragraphs of the TPB Minutes – show that the TPB found the arrangements acceptable, including as a result of anticipated changes to the existing pedestrian walking patterns which would logically flow from additional, safer routes being made available. 86.Though the intended challenge is framed as one of process irrationality, it comes at least close to criticism of the weight given to the various matters recorded by the TPB in its assessment. At bottom, the LKC Fund’s case is that a more full barrier-free connection, such as the Alternative Proposal footbridge, would have been better to address the issue of the SFS Foot. However, that is a planning argument, and a planning authority is not bound to adopt the best or most comprehensive solution if it lawfully accepts another. In any event, on the materials in this case, I do not think there was any reasonably arguable process irrationality. 87.Mr Lam also submitted, as a further or alternative submission, that the TPB failed to acquaint itself with the facts pertaining to the prospect of pedestrian use of the barrier-free routes as compared to the SFS route, which amounted to a breach of the Tameside duty. 88.It is trite that a decision-maker has a Tameside duty to take reasonable steps to acquaint itself with the relevant information to enable it properly to perform the function in question. It is, however, for the decision-maker and not the Court to decide upon the manner, extent and intensity of the inquiry, though its position could be challenged if it is Wednesbury unreasonable. Indeed, as I have held elsewhere, an alleged breach of Tameside duty is not an allegation of procedural unfairness; it is merely an element potentially within a Wednesbury unreasonableness challenge. 89.The Court should not intervene merely because it considers that further enquiries would have been sensible or desirable. It should intervene only if no reasonable decision-maker could have been satisfied on the basis of the enquiries made that it possessed the information necessary for its decision. Therefore, the Court should establish what material was before the decision-maker and should only strike down the decision not to make further enquiries if no reasonable decision-maker possessed of that material could suppose that the enquiries it had made were sufficient. 90.Here, the suggestion of a Tameside breach adds nothing to the analysis. Whilst the LKC Fund has argued that the TPB should have itself commissioned predictive modelling of how many pedestrians would in fact divert to the alternative safer route, the LKC Fund does not suggest that there was no traffic impact assessments covering pedestrian conditions. I have referenced them already. It was essentially a matter for the TPB to assess whether that material was sufficient, in the planning context, for it to be able to exercise its own judgment. I do not think it is reasonably arguable to suggest that the approach adopted by the TPB was Wednesbury unreasonable or irrational for breach of any Tameside duty, or otherwise. I. Ground 2: Unlawful Failure to Impose Residential Units Limit 91.The LKC Fund argued that the failure to impose a limit on the number of units for the development sites would affect its estimate of how great the increase of population would be in the redeveloped area. In particular, Mr Lam submitted that the TPB failed to consider how the traffic impact assessment submitted by the PIPs would no longer be accurate if the number of units exceeds the estimate adopted for that assessment. Hence, he submitted that it was process irrational for the TPB to ignore the fact of such a major variable, freely changeable by the PIPs. 92.It seems to me that the underlying premise of that submission is that, unless there is an express unit, the scale of development is left uncontrolled, such that the pedestrian and other traffic might be significantly greater than considered in the assessments. However, that premise is mistaken. Whilst the indicative proposals do not fix or cap the number of units, which depends on the size of each unit, the scale of the development is not for that reason uncontrolled. The land is subject to various redevelopment restrictions, such as building height restriction, plot ratio control (capping the gross floor area), all of which impose constraints on what ultimately can be built. 93.The LKC Fund has not demonstrated that the indicative figures for the residential units, as placed before the TPB, or the various building controls, would somehow permit the new residential population to so far exceed the assumed scale as to make reliance on the individual assessments arguably irrational. Nor has it been demonstrated how a different subdivision of the permitted building space – whether to larger or smaller units – would materially alter the traffic or pedestrian aspects as presented to the TPB. 94.Nor does it avail the LKC Fund to seek to draw a distinction between the Item A Site and the Item B Site. Mr Lam submitted that the TPB’s reasoning that concerns can be addressed at the land exchange process could only apply to the latter, not the former, because the government lease for the Item A Site is virtually unrestricted and hence no land exchange process is needed. But, it seems to me that there may be various ways to control development scale, and there is no reasonably arguable basis to suggest that control must be through a stipulated number of or cap on units, rather than through the adoption of plot ratio and other building constraints. I also note that the issue of the control of unit numbers for the Item B Site was discussed at the TPB hearing, as evidenced for example at §27 of the TPB Minutes. J. Ground 3: Credibility of Discussions about Alternative Proposal 95.This intended ground, as originally advanced, was that the TPB breached its duty of inquiry by failing to investigate a conflict of evidence. The conflict was between what was said by the representative of the Item A PIPs at the representations hearing before the TPB (i.e. that the developers had approached Dr Lam in November 2023 to explore a footbridge), when Dr Lam had said that those PIPs were simply unwilling to discuss this with him at all, despite his effort to travel to London specifically to meet the partner. 96.Mr Lam submitted that this was material because the PIPs relied heavily on the maintenance of a 24-hour public passageway to support the rezoning application. In his written and oral submissions for the hearing, Mr Lam put the concern as to one of future maintenance (rather than the initial provision of the passageway etc) where, without any legal means to ensure such operations would be maintained in the future, the credibility of the PIPs becomes material. 97.As to the first point, this seems to me to be on its face a clear re-run of the same argument which I dismissed in Hostford. Indeed, Mr Lam referred to the rezoning application, namely the very subject matter of the challenge made in that earlier case, where this dispute as to any discussion about the Alternative Proposal was specifically raised. 98.In any event, it does not seem to me to be remotely material to the exercise being conducted by the TPB. The conflict concerned only the Alternative Proposal, which was not part of the Draft OZP, and which would in any event depend upon cooperation between separate private landowners, which may or may not but probably did not exist. The TPB Minutes at §37 record that there was no agreement between the private landowners, which is obviously correct. As Mr Ismail submitted, the credibility of the persons making representations about the Alternative Proposal was of little consequence, precisely because there was no agreement. I already recognised at §§72-73 of Hostford the practical difficulty of making such a private arrangement any condition of rezoning. 99.Further, an administrative body is not required to resolve every conflict of submissions or recollection between those making representations. I agree with Ms Cheng’s submission that the TPB’s role was not to determine the truth or falsity of every factual claim made by any one or more of those making representations. Its task was to consider the representations, and to decide whether to propose any amendment to the Draft OZP to meet or partially to meet any particular representation. 100.Further, I do not think the various aspects of the barrier-free access and internal transport arrangements were advanced as, or treated as, some form of informal assurances resting on the developers’ good faith. There is nothing in the underlying materials which suggests that the TPB Decision was predicated on relying on the developers’ word, rather than on the various planning materials, technical assessments and the proposed implementation framework. On the materials, the Draft OZP was assessed, after taking into account the various representations, on its planning merits. K. Ground 4: Unjustified Departure from TPB’s Own Policy 101.This intended ground of review is based on the submission that the participation of Mr Horace Hong in the TPB hearing was both (1) a breach of the TPB’s practice, and (2) a breach of the principle that no judge should be an advocate for his own cause. This is asserted on the basis that, during the hearing, Mr Hong provided his views, but then stayed behind for the deliberation of the TPB Decision. 102.Mr Hong is noted in the TPB Minutes as having attended the representation hearing on 14 November 2025 as Chief Traffic Engineer/ Hong Kong, Transport Department (“TD”) – as a Member of the TPB. He was one of the official Members (or their alternates) from relevant Government bureaux and departments, appointed by the Chief Executive under section 2 of the TPO to attend TPB meetings and representation hearings, so as to provide professional input within their areas of expertise. Mr Hong’s role was obviously to assist the TPB on traffic-related matters from the TD’s perspective. He was fully entitled, as an official Member, to sit and deliberate. 103.When considering the traffic aspects, the TPB Minutes record Mr Hong as having made several comments: see §§ 28, 30 and 37. Having looked at those comments, I accept Ms Cheng’s submission that Mr Hong did not play the role of an “advocate/witness” as was asserted in the Form 86. First, it seems to me clear that the comments simply reflect Mr Hong’s role in assisting the TPB on traffic-related matters from the TD’s perspective, and he was not giving “evidence”, in what was in any event an administrative process of assessment. Secondly, what he said was descriptive and factual, and none of the comments are in any way argumentative. 104.Whether making comments or being engaged in the deliberations, Mr Hong was not acting in furtherance of some private interests of himself or the TD or any other Government department. He was simply serving the public interest in putting his knowledge and expertise at the service of all Members of the TPB. It is certainly unreal to regard his presence on the TPB, and making the comments he made, as importing any systemic bias. 105.Indeed, what the TPB Minutes recorded Mr Hong to have said:
106.With respect, none of that is remotely arguably objectionable on any public law basis. 107.The TPB’s own practice does not assist the LKC Fund on this ground. The particular provision relied upon, at §§5.12(f) to (h) of the TPB’s published Procedure and Practice, states that the representatives of PlanD and other Government departments who answer Members’ questions will then leave the meeting, after which the TPB will deliberate on the representations in private. It seems to me that the provision is aimed at non-member departmental representatives, who attend to assist and then withdraw. The provision is not directed at an official Member, or his alternate, and the provision does not preclude such a person from answering any question from other Members during the session – not least on the area of his expertise, which is why he has been included as a Member in the first place. 108.In short, Mr Hong attended, and remained, as a Member. That is actually consistent with §2.17(d) of the Practice and Procedure (as was then applicable), providing that a Government department’s tendering of professional advice, or statement of Government policy, does not give rise to a conflict of interest, as it is incumbent upon the official Member to tender advice consistent with the official views of the Government departments or Government policy. L. The Amendment Summons 109.Before turning to the substance of the intended Ground 5, it is appropriate to consider the preliminary objections made to the Amendment Summons. 110.Under RHC Order 53 rule 3(6), the Court hearing an application for leave may allow the applicant’s statement to be amended, whether by specifying different or additional grounds or relief “or otherwise”, on such terms if any as the Court thinks fit. However, Ms Cheng submitted that an amendment under that rule may not be used to add an intended challenge to a reviewable decision which did not exist when the original Form 86 was filed – and this is so notwithstanding the more flexible approach to amendment of pleading since the Civil Justice Reform. Therefore, she said, what the LKC Fund should have done was to have issued a fresh Form 86. 111.Ms Cheng submitted that the present case is a fortiori, when the original TPB Decision approving the Draft OZP has been superseded by the Approved OZP, making the original Form 86 otiose. The proposed amendment does not seek to introduce merely a different or additional grounds of relief relating to the originally impugned decision, but instead seeks to challenge a new impugned decision. In previous cases, applicants have taken out a second application for leave to apply for judicial review, even if that has then been consolidated with the prior proceedings. 112.Ms Cheng also cautioned against the possible abusive use of the power to amend Form 86 to circumvent the time limits, or to permit challenges ‘slipped in’ under the guise of amendments. Further, nothing should be done which might lessen encouragement to parties to exhaust all avenues of appeal or alternative remedies. There is, of course, some force in these points. 113.However, Mr Lam relied on the more flexible modern approach to amendment, in particular in circumstances where a later decision closely connected with the original challenge may be substituted or added. He referred to Qianhai Xinhuakang Financial Holdings (Shenzhen) Ltd v Chen Jiarong [2020] 2 HKLRD 1320 at §§46-61 – applying Chan Mei Lin v Lee Hong (unreported, CACV 44/2015, 3 December 2015) at §28. The Qianhai case – which referenced the modern approach to litigation emphasising case management and efficient disposal of cases – was also cited with apparent approval by the Court of Appeal in Tasty Catering Group Ltd v Cheng Hung Kit [2021] HKCA 1211 at §24. Mr Lam also referred to R v Secretary of State for the Home Department, ex p Turgut [2001] 1 All ER 719 at 736a-b. 114.In Kwok Cheuk Kin v Secretary for Health [2022] 5 HKLRD 348 at §131, I stated the relevant principles for deciding whether to grant leave to amend a Form 86 after leave to apply for judicial review has been granted. I think those principles are also applicable in circumstances where an amendment is sought prior to, and in order to pursue, the grant of leave to apply for judicial review. Ultimately, whether or not to grant leave depends on what is fair and appropriate in all the circumstances, so that the real dispute between the parties can be determined. Nevertheless, the reason for the lateness is a relevant factor. Also relevant are the nature and substance of the amendment (including whether it is a pure point of law or a mixed point of fact and law, or if there are factual points), the merit of the amendment, the relevance or significance of the amendment to the key issue of the judicial review, and the existence of an alternative procedure to deal with the matter. 115.In this particular case, the proposed amendment is to identify and make challenge to a later decision which forms part of the same statutory chain of decisions in the overall approval process of an OZP. I see no prejudice arising from permitting the amendment in this case. There is no question of cynically using the amendment to get around a timing issue (not least where the further decision to be impugned post-dated the Form 86); nothing untoward is being ‘slipped in’, where the CEIC Decision is sought to be impugned largely on the basis of the intended challenge to the TPB Decision; and nothing is being done which might lessen encouragement to parties in other cases to exhaust all avenues of appeal or alternative remedies. 116.Were I to have formed the view that Ground 5 has sufficient merit otherwise for the grant of leave to apply for judicial review, therefore, I would have allowed the amendment. However, the point is essentially academic where I do not think Ground 5 identifies any reasonably arguable public law ground of review with any realistic prospect of success (see below). M. Ground 5: Tainted CEIC Decision, Failure to Provide Reasons 117.As already noted, the intended challenge to the CEIC is brought on two bases. First, there is the derivative point that the CEIC Decision is tainted because it approved the Draft OZP on the basis of a legally flawed TPB process. That aspect depends entirely on the existence of an arguable public law error in that process. However, I have found that Grounds 1 to 4 do not meet the leave threshold, and any derivative challenge falls with it. 118.Secondly, Mr Lam submitted that – assuming the CEIC had his own reasoning – it breached its duty by not providing the reasons. He relied on the following propositions, in my summary of them (omitting references to authority):
119.Ms Cheng submitted – correctly – that the CEIC is not under an independent duty to give reasons, if the decision itself is not aberrant or if such a duty is not required on the grounds of fairness. 120.It is trite that what fairness requires is context-specific, and I accept that any duty to give reasons did not arise, and reasons were unnecessary, in the particular context. For example, this is not a case where the decision was likely to have lasting relevance for the application of policy and any future cases. Instead, the CEIC approved a draft OZP submitted under section 9 of the TPO as part of, and at the end of, the ordinary statutory process of preparation, exhibition, receipt of representations, consideration by the TPB, and submission for approval. The Approved OZP which resulted from that process came from site-specific amendments. 121.It is correct that the Draft OZP attracted opposition, as well as some support. I do not think the number or percentage of representations in opposition is necessarily relevant to the question of fairness in this case. Public opposition or controversy is not of itself to be treated as sufficient, without more, to impose an independent duty to give reasons. 122.Further, the materials provided to the CEIC – including the TPB Paper, the representations, the TPB’s consideration of them reflected in the TPB Minutes, and the TPB’s reasoning for the TPB Decision also shown in the TPB Minutes – identified the planning basis on which approval was sought, and granted. They specifically identified the representations made in opposition to the Draft OZP, and the considerations taken into account leading to the TPB Decision. There is no reason to think that the CEIC did not engage with those points. Where there was no arguable flaw in the TPB process, there was nothing which the CEIC was required to explain, or somehow to cure if reaching the same decision albeit for different reasons. N. Material Non-Disclosure 123.Ms Cheng submitted that, though the TPB and CEIC had been invited to make submissions, the application for leave to apply for judicial review remained ex parte in nature, so that the LKC Fund bore the burden to make full and frank disclosure. Ms Cheng suggested that the factual matters underpinning the submissions on abuse of process / collateral attack and delay, in particular, ought to have been drawn to the attention of the Court, but were not – in breach of the duty of full and frank disclosure. 124.In light of my above findings, I do not think it necessary to address this point in any detail. I would simply say that it might have been preferable had the LKC Fund drawn attention to the various close links between itself and Hostford and Dr Lam, and perhaps to the similarity of arguments in the two sets of proceedings, so as to address them – if only to get in some ‘retaliation in advance’. To be fair, however, significant extracts of the TBP Minutes were quoted verbatim in the Form 86, from which it was readily apparent where the potential similarity or overlap of points with the earlier parts of the planning process (and the decision in Hostford) arose. Those would have been, and were in fact, apparent to me as the same Judge dealing with both sets of proceedings. O. Result 125.I accept that questions of pedestrian safety and barrier-free accessibility are important matters. I have kept in mind that the TPO itself identifies safety as one of its purposes or aims. 126.However, after careful consideration, I have concluded that the LKC Fund has failed to identify any reasonably arguable public law ground of review with any realistic prospect of success. For that reason, the application for leave to apply for judicial review falls to be dismissed. I so order. 127.As the proposed amendment to the Form 86 was to introduce a further target of challenge, where the intended ground of review also had insufficient merit for the grant of leave, I also formally dismiss the Amendment Summons. 128.In light of the above views, it is probably unnecessary to go back to the question of – or to resolve – the possible delay in the commencement of these proceedings. Such a delay, if it existed, is either (1) de minimis and excusable in the circumstances, (2) academic, or (3) irrelevant, where there is no point in granting any necessary extension of time to bring an application which has insufficient merit for the grant of leave. 129.As to costs, I see no reason at present why costs should not follow the event. Therefore, I order the TPB’s and CEIC’s costs of these proceedings to be paid by the LKC Fund, to be taxed if not agreed, with certificate for two Counsel. I also order the PIPs’ costs of these proceedings to be paid by the LKC Fund, to be taxed if not agreed. 130.However, I shall in the first instance make those orders on a nisi basis, absolute if no variation application is made within 14 days. Any such variation application shall be dealt with on paper.
Mr Justin Lam and Ms Phoebe Lee, instructed by Lee, Wong & Lam, for the applicant Ms Bonnie Cheng SC and Mr Sampson Siu, instructed by Department of Justice, for the 1st and 2nd putative respondents Mr Anthony Ismail, instructed by Woo Kwan Lee & Lo, for the 1st to 4th putative interested parties | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment