Kam Lan Koon and Others v. Secretary for Justice

FAMV000022/1999

FAMV No. 22 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 22 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 197 OF 1998)

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Appeal Committee: Mr Justice Litton PJ, Mr Justice Ching PJ and Mr Justice Bokhary PJ

Date of Hearing: 17 January 2000

Date of Determination: 17 January 2000

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DETERMINATION

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

Introduction

2. The matter before us concerns an application made in the High Court to judicially review a decision of the Director of Lands, as communicated to the 3rd applicant Wong Tung Wing by letter dated 21 March 1997. The effect of this decision is that the Government would not extend a lease of land in the New Territories upon its expiry on 27 June 1997. The application for judicial review, made under Order 53 r.3 of the Rules of the High Court, was heard by Yeung J who by his judgment dated 3 July 1998 dismissed it with costs.

3. The applicants appealed against Yeung J's judgment to the Court of Appeal which, by its judgment dated 29 July 1999, unanimously dismissed the appeal with costs. A subsequent application to the Court of Appeal for leave to appeal to this Court, made under s.24(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, was also dismissed. Hence the matter before us.

The matter in dispute

4. The civil right as asserted by the applicants has not been clearly defined, despite two hearings in the courts below. The best one can say is that it is in the nature of a legitimate expectation, founded in public law, that the Director of Lands would in considering the case of the applicants apply to them certain policies laid down for the extension of New Territories leases, as made public in a Statement published in 1987. But when one looks at that Statement it is clear that the applicants can derive no benefit from it: The lease granted to the original lessees was for a special purpose and, as the courts below have found, the land was not used for the purpose for which it was originally granted: This immediately took the applicants outside the policy statement that "leases for special purposes [would] be extended unless the land is required for a public purpose". Moreover, the original lessees have, except for the 3rd applicant Wong Tung Wing, assigned their interests in the land in breach of the lease conditions: Another reason under the policy statement for the government not to grant an extension. The applicants face another difficulty: Only one of the original lessees is a party to these proceedings. What they seek is a fresh lease on the same terms as the old one. But all except one of the old lessees have divested themselves of their interest in the land or have died before the old lease expired, so a grant of a fresh lease to the 3rd applicant alone would not be a renewal of the old lease.

Conclusion

5. The applicants, from beginning to end, have no case. Before us, they seek to argue that the application comes under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance and they therefore have an appeal as of right, the land being worth more than $1m. The question is: What is the matter in dispute on the appeal, in terms of s.22(1)(a)? Plainly, they have no claim against the government as landlord in private law: The lease expired on 27 June 1997 and it is common ground that the New Territories Leases (Extension) Ordinance does not apply to them. Their claim, as mentioned earlier, was founded upon public law and, putting the best complexion upon it, was to the effect that the Director would apply the 1987 Policy Statement "fairly". This, plainly, is not a dispute involving "some claim or question to or respecting property" in terms of s.22(1)(a) nor are the applicants asserting "some civil right amounting to or of the value of $1,000,000 or more" in terms of the same section. The application therefore does not come within s.23(2), dealing with appeals as of right.

6. As regards s.22(1)(b) there is no question of general or public importance involved in the appeal. There are no merits in the applicants' case. It is dismissed with costs.

Representation:

Mr K M Chong (instructed by Messrs K W Lai & Co.) for the Applicants

Ms Jenny Fung, SGC (of Department of Justice) for the Respondent