Re Silver Mountain Investments Ltd
Read the full judgment text of HCMP 1744/1992 on BabelCite. This High Court CFI judgment was delivered on 20 November 1992.
1. This is an application for judicial review by two companies. The controlling shareholder of each company is Mr. Chim Pui Chung.
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HCMP001744/1992 1992 MP No. 1744 IN THE SUPREME COURT OF HONG KONG HIGH COURT ______________
_____________ Coram: The Hon Mr. Justice Mayo in Court Dates of Hearing: 10 - 12 November 1992 Date of Delivery of Judgment: 20 November 1992 ______________ J U D G M E N T ______________ 1. This is an application for judicial review by two companies. The controlling shareholder of each company is Mr. Chim Pui Chung. 2. The applicant's own property at 116-118 Des Voeux Road Central, 39-41 Tung Man Street and 42-44 Hing Lung Street. All of this property is close together and presently forms part of a Land Development Corporation , Scheme. 3. The Land Development Corporation (L.D.C.) who are one of the respondents proceeded with the scheme in accordance with the provisions contained in the Land Development Corporation Ordinance, C. 15 and the other legislation referred to therein. On the 16th April 1992 a Resumption Order was made affecting all of the property and this Order is the subject of this judicial review. Mr. Chim wrote to His Excellency The Governor on the 15th May 1992 in these terms:- " Date: 15th May, 1992
Dear Lord Wilson,
I wish, your Lordship, to complain as follows :- (1) There is an approved previous plan for re-development.of the properties known as No. 116 and 118 Des Voeux Road Central, Nos. 42 and 44 Hing Lung Street and No. 41 Tung Man Street. Nonetheless the relevant authorities ignored this fact and put the properties as part of their development scheme. (2) The LDC gives to the owners concerned value well below the market level for their properties. The exercise of the Crown Lands Resumption Ordinance compled with the lower offer is an intent to compel the owners concerned to accept the terms of LDC. This is a shameful and unreasonable act at all. (3) The so-called Central Comprehensive Development Scheme comprises the participation of land developers from the private sector. It is hardly for any one to be convinced that it is not a conspiracy between the public and private sectors. (4) Many of the owners-concerned are able to re develop their properties in accordance with the Government' requirements and I am one of them. Should these owners are not given a chance to do so, it is an act against human rights and proprietary and set a bad example not for the present but 1997 beyond. Your Lordship, you have contributed during the past 5 year distinguished and outstanding service and I am reluctant to see that a bad example will leave behind you. I sincerely hope that you will instruct your assistant to look into the matter with a view to making the place to look and feel just and fair. May I, your Lordship, put for your kind consideration :
and His Excellency replied on the 30th May 1992 as follows:- " 30 May 1992 Dear Mr. Chim Jubilee Street Scheme
4. It would appear that the applicants were not satisfied with this response and this reply also forms part of the matters complained of. 5. The Attorney General is the other respondent to these proceedings. 6. The applicants and their predecessors in title objected to the scheme from its inception. It is therefore necessary to advert to the history of matter from the start. 7. L.D.C. being a creature of statute is governed by the Land Development Corporation Ordinance, C. 15. The Ordinance is described as being "To establish a corporation for the purpose of urban renewal and matters incidental thereto". 8. This scheme was one of the first schemes undertaken by L.D.C. 9. They wrote to the Secretary for Lands and Works as he was then known as (the secretary) on the 12th March 1988 requesting approval to prepare a development scheme pursuant to s. 13(1) of the Ordinance. 10. Approval was forthcoming and a draft plan was gazetted on the 13th May 1988. Anyone who wished to object to the draft plan could do so within a period of two months. 11. The applicant's then solicitors Lau, Wong.and Chan wrote to the Secretary on 2nd June setting out their client's objection as follows:-
We are instructed to refer to your Gazettee Notice No.149 of 13th May 1988 and are instructed to write and object to your propose zoning of our clients aforesaid premises from "Commercial/Residential" to "Comprehensive Development Area". The reasons for our clients' objection are as follows:- (A) Building plans for the re-development of the said premises by erecting a commercial building thereon have been submitted by Mr. Eric Wong Hoo-ming and duly approved by the Building Authority by letter dated 18th June 1986. Photocopies of the relevant approval letter and permit are enclosed herewith for your easy reference. Unfortunately, the re-development project has been delayed due to the following reasons :- (1) Negotiations with the Crown Land Department for the acquisition of the piece of Crown Land at the back of 116-118 Des Voeux were being carried out by Messrs. Jones Lang & Wootton on our clients' behalves. (2) Our clients are also in the process of negotiating to purchase the premises next to 41 Tung Man Street so that the whole site for re-development can be bigger and more unified. (3) Re-development plans have not been proceeded with as our clients' architect had advised about 10 months ago that the "Shadow Restriction" under the Building (Planning) Regulations would be removed soon. This was in fact done in early 1988. As a result of such restriction being removed, the development potential of the site has been drastically increased. Plans reflecting and incorporating such increase of plot ratio will be re-submitted to the Building Authority for approval in the very near future. (B) Hoarding and Shoring plans for demolition works have also been approved in August 1986. Photocopies of the relevant approval letter are enclosed. In the circumstance, our clients can proceed to demolish the existing buildings which are all vacant at any time In view of the aforesaid, if your Board re-zone the using of the above premises into Comprehensive Development Area, it will seriously delay our clients' proposed project. On behalf of our clients, we therefore propose that the usage of the above premises should remain unchanged i.e. "Commercial/Residential". Our clients' objection can therefore be removed if your Board would exclude the aforesaid premises from the Category of "Comprehensive Development Area". Should you wish to discuss the matter further, our clients, their architect Mr. Eric Wong Hoo-ming and ourselves are prepared to attend any meeting which will help to resolve our clients' objection. Please do not hesitate to contact us for any future development in the matter.
12. It is significant to note that no reference is made in that letter to any right of way. being made available by the applicants. 13. The objection was considered by the Town Planning Board (T.P.B.) at a meeting on the 23rd September 1988 and a decision was made not to amend the draft plan. 14. However, the applicants were invited to attend a meeting on the 13th October. They did so and their solicitor addressed the meeting. In addition to the matters referred to in the letter he made an offer that part of the ground floor of 116-118 Des Voeux Road Central could be dedicated for pedestrian access. This offer, of course, was predicated upon the premise that the requisite approval for any plans incorporating such a right of way would be forthcoming. 15. Notwithstanding this, the T.P.B. declined to amend the plan and the applicants were informed of this on the 10th November 1989. 16. On the 9th February 1990, T.P.B. approved the L.D.C. scheme plan. The plan was advertised on the 30th March. 17. On the 31st May, Messrs Iu, Lai & Li who were then acting for the applicants lodged an objection in these terms:-
18. Again no reference is made to any right of way. 19. The objections were rejected by the T.P.B. and the applicants were advised of this and invited to attend a meeting on 23rd November 1990. 20. The applicants accepted this invitation. The meeting was presided over by the Secretary who was then Mr. Graham Barnes and was also attended by members of the T.P.B. and the L.D.C. The latter had declared an interest in the topics being discussed and confined their role to being observers. I think that it is helpful to cite the relevant part of the minutes of the meeting and the conclusion drawn by the T.P.B.:-
21. As can be seen the objections were again rejected. On the 28th May 1991, the Governor approved the scheme plan and this was gazetted on the 30th August 1991. 22. Throughout this period, negotiations proceeded for the L.D.C. to purchase the properties. Although the offers made by L.D.C. increased substantially all efforts to reach agreement on prices were unavailing. It was accordingly necessary for resumption procedures to be invoked. A notice of resumption was gazetted on the 16th April 1992. It was subsequent to this that the exchange of correspondence, I have earlier referred to between Mr. Chim and the Governor took place. 23. A further matter I would refer to is that Mr. Chim has made affirmations in which he claims that he was told by Mr. Razack, the Chief Executive of L.D.C. in early 1991 that the property was required to provide access to the development to Des Voeux Road. He had had a social meeting with Mr. Razack and had suggested as an alternative that if he was able to redevelop his properties he would be prepared to.provide access to the development to Des Voeux Road. 24. This evidence is contested by Mr. Razack. He denied on affidavit that he had any such discussion with Mr. Chim, although he does he agree that there was a social meeting with him. 25. Neither gentleman was cross-examined on their affidavits and I do not consider that I am in a position to make a finding of fact as to which gentleman is to be believed. I do not think that this creates any serious impediment as my decision would have been the same even if I had been satisfied that Mr. Chim's evidence should be. accepted in toto. 26. The next matter I will consider is the grounds upon which relief is sought. These are set out at length in the papers prepared in support of the application. I consider; however; that rather than setting them all out in detail in this judgment it is much more helpful to borrow the precis prepared in the very helpful skeleton argument prepared by Mr. Ching who represented L.D.C.:- "2. The grounds upon which the relief is sought. There appears to be 5.
27. It.was apparent that the main thrust of Mr. Neoh for the applicants' submission centered around s. 15 of the Ordinance. 28. It was his contention that it was clear from s. 15 that the L.D.C. should only contemplate resorting to resumption of land as a last resort after all other possibilities have been exhausted 29. Section 15 is as follows:-
(2) The circumstances referred to in subsection (1) are –
30. He accepted that the property came within the criteria referred to in s. 15(2)(a). He did, however, place particular reliance upon the wording of s. 15(3)(b). It was implicit from the way in which the subsection was framed that every possible alternative should be considered before resumption was proceeded with. He argued that property rights should be respected and could only be taken away by the clearest legislative language. The rules of construction require the imposition of the least possible disturbance. His authority for this being Re Cuno [18891 43 Ch. D. 12 and Maddulozzo v. Common Wealth of Australia [19791 23 ALR 437. 31. He went on to submit the use of the word "acquire" and the definition of "land" gave wide scope to the L.D.C. to consider alternatives other than the acquisition of the land for a monetary consideration. 32. Not only did the L.D.C. have a power to consider these alternatives but they also had a duty to do so. They had a duty to consider the interests of all persons affected or prejudiced which would include all property owners affected by the scheme. Westminster Corporation v. London and North Western Railway [19051 AC 426. Stringer v. Minister of Housing & Local Government [19701 LWLR 1281 and Westminster Council v. Great Portland Cement [19851 1 AC 661. 33. The consequence of this was that it was clearly incumbent upon the L.D.C. to seriously examine the alternative which had been put forward by Mr. Chim that access could be made available to the site from Des Voeux Road by using the right of way which had been proposed by him rather than resorting to the compulsory acquisition of the property. 34. Even with the evidence of Mr. Chim's offer to Mr. Razack of the right of way the sum total of the proposals advanced fall far short of a serious alternative for this development. To start with Mr. Chim was not in a position to make any offer. The applicants did not have planning permission to construct a building which could be designed in such a manner to grant an appropriate easement. Also taking the applicants' case at its strongest the proposals which had been made were of the vaguest nature and fell far short of being sufficiently specific to enable the L.D.C. to consider any plans based upon Mr. Chim's ideas. 35. Over and above this, it is clear from the passages from the minutes. I have referred to earlier in this judgment and from the affidavits filed in reply that the idea of having a right of way on the ground floor of the Des Voeux Road property was considered by the T.P.B. and rejected for the reasons given. 36. It is a basic and fundamental principle of applications of this nature that it can be no function of the court to attempt to substitute its own opinions for those of the authority whose decision is being reviewed. 37. There can be no doubt from the evidence as a whole that due consideration was given to the right of way as an alternative and this idea was rejected. 38. Leading on from this was the idea that the L.D.C. had a duty to invite the owners of the land to participate in the re-development. There is certainly nothing in the Ordinance to suggest that the L.D.C. has a duty to consider this. As outlined by Mr. Ching the practical ramifications of this would be truly daunting. Is it suggested that each and every owner of property should be consulted with a view to such participation? 39. The L.D.C. have on the affidavits which were before me indicated some of the background which sheds light on this. As this was one of the earlier developments L.D.C. were dependent upon obtaining funding by entering into a joint venture with a developer of known experience and financial backing. It would have been quite impracticable to proceed with the scheme if it had been necessary to enter into a dialogue with all interested parties in an endeavour to ascertain whether they wished to participate in some form of joint venture enterprise. 40. There is also a suggestion in the papers that one of the purposes of the scheme was for the L.D.C. and the party entering into the joint venture to make a profit. This idea is not developed in any detail. I do not think that even if this is the case that it creates any problem. 41. There is nothing in the Ordinance which precludes L.D.C. or any joint developer from making a profit and indeed provisions are included which state how such profits are to be provided for. 42. I have attempted to deal with the main matters which might conceivably have been considered by the Secretary when deciding whether or not to make the recommendation referred to in s. 15. 43. I have some difficulty with this on account of the way in which the applicant has presented its case. There seems to be an implicit suggestion that the Secretary has to of his own volition consider every conceivable option which may be open to him and that there is no requirement for the applicant to state specifically exactly what this might extend to. I agree with the submission made by Mr. Ching that this cannot be right. The scheme of the legislation requires that where it is proposed that a plan should be altered a burden is imposed upon the party making an objection to come up with some form of viable alternative. This clearly has not been done by the applicants in the present case. I consider that this is an important lacuna. 44. What is clear to me is that the L.D.C. and the T.P.B. have proceeded throughout the history of this matter in an orderly manner strictly complying with all statutory requirements under the various ordinances. 45. They have given the applicants every opportunity to make such representations as they wanted to and have given careful and detailed consideration to the various submissions made to them. 46. No serious attempt was made by Mr. Neoh to argue that the overall scheme was outside the scope of what was contemplated by the Land Development Ordinance. 47. It would seem to be beyond argument that the area is presently ripe for urban renewal and that the present use of the land is inefficient. I have no doubt that the present scheme is an imaginative one and will greatly enhance the area. 48. Access to Des Voeux Road is an important element in the scheme and no serious alternative proposals have been made to provide for this. 49. The present plan is to have escalators which would provide access at different levels. These ideas would be in no way compatible with a right of way being granted on the ground floor of any new development which may be contemplated by the applicants. 50. I think that it is clear from the history of the matter which I have recited that both the L.D.C. and the T.P.B. have been fully conversant with all important developments as they have taken place and that there can be no scope for a contention being advanced that the L.D.C. failed to supply any relevant information to the Secretary or that the Secretary was not in possession of all the necessary material. There is also every reason to suppose that the Secretary did adequately brief the Governor at the appropriate time. This being the case, the argument that the Governor ordered the resumption on a false or mistaken basis has no foundation. 51. This being the case, I am satisfied that the applicants have failed to make out any of the contentions they have advanced to the effect that either the Resumption Order or the decision of the Governor are in any way flawed. This application for judicial review is accordingly dismissed. I make an order nisi that the respondents will be entitled to their costs.
Representation: Mr. Anthony Neoh, Q.C. and Mr. Poon Shiu Chor instructed by Laurence Pang & Co. for the Applicant. Mrs. B. Kaplan (A.G.'s Chambers) for the Governor and the Secretary for Planning - Environment and Lands. Mr. Charles Ching, Q.C. and Mr. Benjamin Yu instructed by Kao, Lee & Yip for Land Development Corporation. Appeal dismissed: see CACV197/1992 dated 23 April 1993 |