Read the full judgment text of HCAL 000050/1997 on BabelCite. This High Court CFI judgment was delivered on 21 November 1997 before The Hon. Mr Justice Keith.
Administrative law – judicial review – public or private function – Crown lease – New Territories (Extension) Ordinance (Cap. 150) – 1987 Lands Department policy statement on extension of special-purpose Crown leases to 30 June 2047 – public utility leases – whether Director of Lands was exercising a public function in deciding not to extend a public utility company's lease – Hang Wah Chong Investment Co. Ltd v Attorney General [1981] HKLR 336 and Canadian Overseas Development Co. Ltd v Attorney General [1991] 1 HKC 288 distinguished – Datafin test applied – whether a later confirming decision following reconsideration is amenable to judicial review – McCarthy & Stone (Development) Ltd v Richmond-Upon-Thames London Borough Council [1992] 2 AC 48 followed – legitimate expectation – whether a policy statement, in conjunction with a Crown lease and pre-1996 correspondence, gave rise to a legitimate expectation that the lease would be extended beyond 1997 – requirement that the representation be 'clear, unambiguous and devoid of relevant qualification' – R v IRC ex p M.F.K. Underwriting Agents Ltd [1990] 1 WLR 1545 – use of qualifying words 'in general' and 'normally' – case-by-case examination – whether detrimental reliance is required for legitimate expectation – de Smith, Woolf & Jowell cited – R v Jockey Club ex p R.A.M. Racecourses Ltd [1993] 1 All ER 225 – Wednesbury unreasonableness – whether refusal of a long-term extension to 2047 could be impugned on grounds of continuing public need for a depot – Crown lease of Tsuen Wan site originally granted for production and storage of LPG/Air pending extension of towngas mains – site later used only as emergency and maintenance depot for Tsuen Wan, Kwai Chung and Tsing Yi – Director of Lands' final decision communicated by letter dated 16 June 1997 – decision held to be in the public domain and amenable to judicial review – no legitimate expectation established on the facts – irrationality argument directed at a different (short-term) relief than that sought – application for judicial review dismissed with costs to be paid by the Applicant on a taxed basis – court noting that the Applicant remained at liberty to apply for a short-term extension of the lease.
Legal issues: Amenability of a confirming decision following reconsideration to judicial review · Whether the Director of Lands' lease-extension decision is in the public domain and amenable to judicial review · Whether the Applicant enjoyed a legitimate expectation of lease extension under the 1987 policy statement · Whether the decision not to extend the lease was Wednesbury unreasonable
Outcome: Application for judicial review dismissed; order nisi that the Applicant pays the Respondent's costs of the proceedings, to be taxed if not agreed.