Fok Lai Ying v. Governor in Council and Others

HCMP000940/1996

1996, No. MP940

------------------------

H E A D N O T E

------------------------

Judicial Review - Property owner challenged resumption of her property under Crown Land Resumption Ordinance on the ground that she had not been given prior notice of the resumption so as to enable her to make representations.

HELD :

1. Duty to act fairy in administrative decision affecting the rights of the property owner requires prior notice to be given to her before the resumption in order for her to make representation.

2. Resumption declared null and void.

1996, No. MP940

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

--------------------

----------------------

---------------------

Coram : Hon Mr Justice Cheung in Court

Date of hearing : 9 and 10 September 1996

Date of handing down judgment : 26 September 1996

-----------------------

J U D G M E N T

------------------------

The facts

1. The Applicant Madam Fok Lai Ying ("Madam Fok") is the owner of a property in No.2 Ngau Pei Sha New Village, Shatin, New Territories (the Remaining Portion of Lot No.853 in DD No. 194, Shatin) ("the property"). The property consists of a three-storey house with an open space of about 2410 sq.ft. The property is used as a home by Madam Fok, her husband and their three children.

2. By a notice published in the Gazette on 6th December 1995 ("the Notice") a portion of property was resumed under the Crown Lands Resumption Ordinance ("the Ordinance"). By letter dated 31st January 1996 the Director of Lands informed Madam Fok that 2,112 sq.ft. of the open space of her home was being resumed. The area affected was said to be agricultural land. Madam Fok is aggrieved by the decision and she lodged this judicial review to challenge the validity of the resumption.

The challenge

3. The challenge is based on three grounds. Firstly, under the principle of natural justice. Secondly, the decision to resume her land was made ultra vires in that the resumption was not for a public purpose. Thirdly, the provisions of the Ordinance are contrary to Article 14 of the Bill of Rights. I will now deal with each of the grounds.

Duty to act fairly

4. Madam Fok said that the resumption was against the principle of natural justice; she is entitled in law to know the particulars of the resumption and be afforded an opportunity to make representations before the decision to resume her land was made.

5. The classic origin of the requirement to hear a party is in Cooper v. Wandsworth Board of Works [1863] 14 CB (NS 180) in which the Board demolished a partly built house, without giving any opportunity to the builder to be heard in opposition to the demolition. Willes J. said at page 190

"I apprehend that a tribunal which is by law vested with power to affect the property of one of Her Majesty's subjects, is bound to give such subject an opportunity of being heard before it proceeds: and that that rule is of universal application, and founded upon the plainest principles of justice."

6. Administrative law has made great strides since that decision. More recently in R. v. Secretary of State for the Home Department, Ex parte Doody [1994] AC 531 which was concerned with a scheme that prisoners receiving mandatory sentences of life imprisonment may be released upon licence, Lord Mustill of the House of Lord stated that :

" What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."

7. Challenge to the Ordinance on the ground of natural justice in fact was first raised In re an application by K.O.Y. Investment Co. Ltd. and Others [1983] HKLR 28 in which the Full Bench consisting of Mayo J. (as he then was), the late Hunter J. and Mantell J. dismissed an application for judicial review of a resumption order on the grounds that the owners of the property had not received notice of the intended resumption and natural justice had not been observed. It is with pleasant surprise that I revisit K.O.Y after 14 years. It is necessary to examine the reasons in K.O.Y. to see why the application was dismissed. Mayo J. at page 39 stated that :

"The correct approach to these cases is to first inquire what is the nature of the discretion which is being exercised. The answer to this question is that in the present case the Governor both as Governor-in-Council and as Governor was exercising a purely administrative function. His main concern was the interest of the community at large, he had to decide whether the land in question was suitable for the public purpose which has been stated. I do not think that it assists the applicant's case to attempt to divide the functions which are exerciseable under section 3 into component parts. I accept that the Governor had a duty to act fairly. This is not the same thing as being required to adhere to the rules of natural justice. I agree with Mr. Barlow's interpretation of the case law that a duty to act fairly does not include a requirement of giving notice to the owner of land that it is the Crown's intention to resume his land. By the same token no obligation can be written into the ordinance requiring the Governor to entertain representations from an owner in respect of the resumption."

8. Mr Philip Dykes, Counsel for the Respondents, submitted that he would refrain from relying on this particular reason. Development since K.O.Y., as illustrated by the case of Doody, clearly indicated that the duty to act fairly will often require that a person who may be adversely affected by a decision should have an opportunity to make representations on his behalf before a decision is taken. In the context of the Ordinance, this would necessarily involve giving the property owner prior notice and the right to make representations before the resumption is made.

9. Mayo J. also relied on s.9 of the Ordinance which provide that :

"9. Barring of actions against the Crown

Subject to the provisions of this Ordinance, no action or suit shall lie against the Crown or against any other person for any loss or damage suffered by any person as the result of the resumption of any land under this Ordinance."

10. The learned Judge said that if the section was considered in the context of the Ordinance, it had the effect of excluding the type of claim which was made by the applicants in that case. Again Mr Dykes submitted that he would not be relying on this particular reason. It is clear that s.9 refers to action or suit for loss or damages sustained by the property owner. It does not exclude the supervisory jurisdiction of the court in determining whether procedural propriety was observed in the decision making process.

Exclusion of duty to act fairly?

11. The real issue in this application is whether the right to be notified or make representation was excluded by the legislature when the Ordinance was enacted. Hunter J. was of the view that pointers were against a construction requiring prior consultation. He stated that :

"(1) The legislative direction in section 3 to the Governor is to consult the Executive Council. This can readily be read as a direction to consult only the Executive Council.

(2) Notice to owners is specifically provided for only after the Governor has acted under section 3, namely under section 4.

(3) Section 11(1)(b) supports the suggestion that the section 4 notice is intended to be the first notice to owners. If one were to read an earlier notice requirement into section 3, one could be left with the situation that the Lands Tribunal was implicitly required to take cognisance of and award compensation in respect of changes made between such imputed first notice and the section 4 notice.

(4) The terms of sections 9 and 19 seem to me to support the suggestion that the decision taken by the Governor after consultation only with the Executive Council and set out in a section 4 notice is intended to be final and inviolate, the ultra vires/bad faith circumstances considered in such cases as Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation [1948] 1 KB 223, only excepted.

(5) A decision to resume land for a public purpose may well involve questions of high public policy, which it was thought desirable that the Governor and the Executive Council should consider undisturbed by the Lobbying of those directly affected. The intent may have been that the Governor should not (in the words of Lord Reid above referred to) 'be prevented from attaching more importance to the fulfilment of his policy than to the fate of individual objectors' [1964] AC at p.72.

(6) If fairness requires prior consultation, this would have to be with all the affected owners. This would entail reading into section 3 provisions similar to those in section 4(2) and (4) so that all such owners were deemed to have been informed. Apart from adding to the difficulties of implication, this could well have undesirable publicity consequences.

(7) It must be doubted whether a requirement leading only to consultation with the owners of the site most at risk would in fact be wholly fair. Cases, perhaps many cases, are likely to arise when the Governor-in-Council, faced with a clear public need, has to choose between two or more sites. In such circumstances it is by no means clear to me why any obligation of fairness does not comprehend, again at the decision stage, consultation with the owners of more than one site. This would approximate to the United Kingdom public inquiry type of system, and it cannot begin to be implied or read into the Ordinance."

The exclusion must be clear and express

12. Before one examine these factors it must be borne in mind that the Ordinance empowers the government to compulsory acquire the property of a person, although with payment of compensation. Other than matters of personal liberty, a person's ownership of a property and his right to deal with it in accordance in his wish must be one of the most important aspects of his well being. Without doubt, the Ordinance is one of the most draconian of our statutes. Clear and express indications must be present before one could say that the Ordinance excludes the requirement of notifying the land owner and of allowing him to make representations before the resumption is made. The requirement of notice is the minimum procedural safeguard before such a drastic action is being taken. In this regard it is worthwhile to note that under the Basic Law of Hong Kong, which will come into operation in less than 300 days, the right to private ownership of property is recognised and Article 6 expressly provides that the Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with the law. It is also worthwhile to bear in mind what was said by the Court of Appeal in Chan Lau Fong and Others v. The Attorney General [1992] 2 HKLR 203 at 222 that :

"(1) Statutes must not be construed so as to divest persons of proprietary rights unless the intention of the legislature is expressed in clear and unambiguous language: Maddalozzo v. Commonwealth of Australia (1979)25 ALR 437 per Lockhart, J. at p.443 citing the passage in Craies on Statute Law 7th ed., at p.118 where a similar dictum of Bowen, L.J. in Re Cuno (1889)43 Ch D 12, 17 is cited.

(2) Only so much land as is actually and reasonably required for the particular purpose authorised by the statute may be taken compulsorily: Halsbury's Laws of England, 4th ed., Vol. 8, para 50 (Note 3); Simpson v. South Staffs Waterworks (1865)4 De GJ & Sm 679.

(3) The long title of the Ordinance being 'To facilitate the resumption of Crown lands required for public purposes', (emphasis supplied) such a statutory power is to be limited to the power to resume such land as is directly needed to be used for, or to advance, the particular public purpose in question, and the power to resume land cannot be used indirectly to attain a different purpose or a collateral advantage, even if this collateral matter can itself properly be described as a public purpose: Clunies-Ross v. Commonwealth of Australia (1984)55 ALR 609, 610-13."

These stringent requirements highlight the need for a clear and express exclusion.

The factors

Who to consult

13. The first reason relied upon by Hunter J.A. was that s.3 requires the Governor to consult the Executive Council and not anyone else. Section 3 states: "Whenever the Governor-in-Council decides that the resumption of any land is required for a public purpose, the Governor may order the resumption hereof under this Ordinance."

14. Similar argument was advanced in Doody by the Secretary of State that the prisoners may not be consulted. Criminal Justice Act 1967, s.61(1) states :

"The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life ... but shall not do so in the case of a person sentenced to imprisonment for life ... except after consultation with the Lord Chief Justice of England together with he trial judge if available."

The Secretary of State argued that the consultation was to enable him to learn the views of the Judiciary and not to provide the prisoners with an opportunity to make representations. Nonetheless, the Court of Appeal and the House of Lords had no hesitation in affording the prisoners the right to make representations. This approach is readily understandable if the focus is on the individual who is directly affected by the decision. Lord Mustill at page 560 held that :

"It is the decision of the Home Secretary which vitally affects the future of the prisoner and it is the openness of this decision which is essentially in dispute.... I prefer to go directly to the opposite end of the process to consider the prisoner's rights in relation to the decision by the Home Secretary."

Once the focus is directed in this manner, it would naturally follow that the consultation is not limited only to the Executive Council but also to the property owner which is directly affected by the decision.

Notice under the Ordinance

15. The second and third factors deal with the first notice to be given after the resumption. It is a fact that under the Ordinance the notice to the land owner is only required to be given after the resumption has been made. That, however, does not preclude the requirement of observing the rules of natural justice or duty to act fairly. It is precisely due to the absence of provisions relating to the giving of prior notice or enabling the party affected to make representation that common law develops the notion of natural justice or the duty to act fairly which is to be engraved to the decision-making process. The position is best put by Lord Bridge of Harwich in Lloyd v. McMahon [1987] AC 625 at pages 702 to 703 :

" My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness." (emphasis added)

Valuation of compensation

16. In respect of s.11(1b) of the Ordinance which provides that :

"11. Principles of assessment of compensation

(1) When any property is resumed, the Lands Tribunal in determining the compensation to be paid and in estimating the value of the land resumed and of any buildings thereon, may - (Amended 28 of 1911 s.6(i); 50 of 1911; 1 of 1912 Schedule)

(a) .........

(b) decline to make any compensation for any addition to or improvement of the property made after the date of the publication in the Gazette of the notice of intended resumption (unless such addition or improvement was necessary for the maintenance of the property in a proper state of repair): (Amended 27 of 1937 Schedule)"

17. In my view all that the section does is to provide a cut-off day for the valuation of the resume property. It has nothing to do with the duty to act fairly before the resumption.

Decision final?

18. In relation to Hunter J.A.'s view that the decision was intended to be final and inviolate, by reference to s.9 and s.19, I have already expressed my view on s.9 earlier. S.19, states that:

" In any notice to resume any land, it shall be sufficient to state that the resumption of such land is required for a public purpose, without stating the particular purpose for which the land is required; and a notice containing such statement shall be conclusive evidence that the resumption is for a public purpose."

Again the conclusive nature of the evidence would not preclude the operation of the duty to act fairly.

Public policy consideration

19. The other factors are in respect of public policy, the difficulties of consulting all the owners and undesirable publicity consequences. It is clear that matters of public policy are involved in resumption of land. It is equally clear that public policy consideration would not necessarily mandate a scheme which precludes public consultation. This is well demonstrated by legislations such as the Town Planning Ordinance which contains resumption provisions under s.4(2) but nonetheless, provides for the public exhibition of draft plans and consideration of objections from members of the public (ss.5 and 6). Whilst it is recognised that the decision to publish the draft plans lies with the discretion of the Town Planning Board, the point is simply that public policy considerations can go hand in hand with the public being afforded the opportunity to be consulted and raise objections. A similar right to consult is set out in the Roads (Works, Use and Compensation) Ordinance which also gives the government the power to resume land for the purpose of road works. Again there are provisions for raising objections to published plan and scheme of road work.

Actual consultation

20. Hunter J.A. stated that the requirement to consult may well involve consultation with more than the owners of one site; this would be approximate to the United Kingdom public enquiry type of system and it cannot be deemed to be implied or read into the Ordinance.

21. To deal with this issue, it is necessary to look briefly to the history of the matter. In about 1990 the government prepared a layout plan for the expansion of the To Shek, Chap Wai Kon and Ngau Pei Sha villages at Shatin. The purpose of the expansion was to provide sites for the construction of "small houses", that is, house sites for eligible indigenous villagers under the government's small house policy. A layout plan called L/ST 35/3 was finally approved on 28th January 1991. In order to carry out the scheme into effect would involve the resumption of land. Before the approval of this layout plan was made, the government consulted the representatives of the three villages, although not with Madam Fok. Thus, what actually took place was that the government, as is expected of an enlightened and responsible administration, did consult the views of the persons affected by the scheme. Hence, the problems envisaged by Hunter J.A. in his judgment are not real or insurmountable difficulties.

Other considerations

22. Hunter J.A. also referred to the provisions in the lease to resume the land for any other public purpose on giving 3 months notice and the profits to be made out at the development of this site. There is no similar provision in the lease of Madam Fok and she is using the property as her home and the question of profit-making simply does not come in. The fact that two subsequent statutes contain provisions for notice and objection does not mean that the Ordinance must intend to exclude the right to be heard. One must look at the Ordinance itself to see if the exclusion is clearly or expressly intended.

What the applicant seeks

23. In Bushell and another v. Secretary of State for the Environment [1981] AC 75, public local enquiry was held following objections to a scheme for the construction of motorways and roads. Lords Dipock approving of the judgment of Lord Greene M.R. in B. Johnson & Co. (Builders) Limited v. Minister of Health [1949 ] 2 All ER 393 stated that :

"... That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as 'natural justice' which may suggest that the prototype is only to be found in procedures followed by English courts of law, I prefer to put it that in the absence of any rules made under the Tribunals and Inquiries Act 1971, the only requirement of the Highways Act 1959, as to the procedure to be followed at a local inquiry held pursuant to Schedule 1, paragraph 9, is that it must be fair to all those who have an interest in the decision that will follow it whether they have been represented at the inquiry or not. What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter.

What is fair procedure is to be judged not in the light of constitutional fictions as to the relationship between the minister and the other servants of the Crown who serve in the government department of which he is the head, but in the light of the practical realities as to the way in which administrative decisions involving forming judgments based on technical considerations are reached."

24. Mr Dykes also referred to Norwest Holst Limited v. Secretary of State for Trade [1978] 1 Ch 201 in which Ormrod L.J. emphasized that the ordinary principles of natural justice must be kept flexible and must be adapted to the circumstances prevailing in any particular case and that this rule is not to be used to frustrate the intention of the legislature.

25. In the present case, Madam Fok is not demanding an enquiry and she is not asking for an opportunity to argue her case. She is not seeking discovery of documents, examination of witnesses, or other evidence.

26. Her case is simply that (1) the government should inform her before the land is resumed and the area and location of the land proposed to be resumed and the proposed use of the resume land, (2) she be permitted to put in a submission in writing to be forwarded to the Executive Council, either in its original form or if the government deems it too lengthy, in a form edited by the government. The purpose is to let the Executive Council know her view.

Right to be heard not excluded

27. Development of law in this area since K.O.Y. shows that the focus is on the right of the person affected by the decision and the presumption that administrative power must be exercised fairly generally requires the person who may be adversely affected by the decision to be given an opportunity to make representations. The circumstances in which it may be said that the legislature intends to exclude the right must be narrowly construed. Having regard to these, I come to the view that such a right has not been excluded by the Ordinance. I am unable to accept the reasoning of K.O.Y that the legislative intent is to exclude the need to hear the property owner who is directly affected by the resumption. The circumstances relied by the court are not clear or express indications of exclusion. I am unable to adopt the K.O.Y. decision. In so doing I bear in mind the caution of Goff L.J. (as he then was), in Regina v. Greater Manchester Coroner Ex parte Tal and another [1985] 1 Q B 67 about single judge departing from a decision of the Full Bench in the supervisory jurisdiction.

28. In my view Madam Fok ought to be notified of the intended resumption and that she ought to be given an opportunity to make representations to the Executive Council before the resumption. This has not be done, the requirement of fairness has not been observed and in so doing the resumption, in so far as it affects Madam Fok, ought to be quashed.

Has the Applicant been heard?

29. Mr Dykes submitted that even if such a duty exists, Madam Fok's objection were noted by the Governor-in-Council and in the circumstances she was "heard" by the decision-maker.

30. I do not accept that the duty has been discharged. On 23rd November 1993, Madam Fok's former solicitors wrote to the District Land Registrar seeking information of the resumption. There was no reply. On 27th March 1995, Madam Fok's present lawyer requested the Clerk to Executive Council to bring notice to Members of the Council of the Applicant's objections when considering the resumption. It is said by Mr Ho Ting Yau of the District Land Office that there was an investigation on the feasibility of excluding the affected portion of the property from the resumption but the exclusion was considered impracticable. Without given details of the resumption, Madam Fok was just not able to make a reasoned representation of her case. She could only ask the Executive Council to note her objection without being able to present her case that, for example, it may be only part of the property needs to be resumed and not the whole. Without knowing her case, the duty to act fairly cannot said to have been discharged.

Other Grounds

31. Having found that the duty to hear the Applicant exists and such duty has not been discharged, I will briefly deal with the other grounds of challenge relied by Madam Fok.

Ultra vires

32. Mr Kwok submitted that the resumption was made ultra vires and not for a public purpose. The heading of the Notice published in the Gazette is as follows :

"RESUMPTION OF LAND FOR VILLAGE EXPANSION AREA AT NGAU PEI SHA, CHAP WAI KON AND TO SHEK, SHATIN NEW TOWN AREA 35, SHATIN NEW TERRITORIES."

33. He accepted that under s.19 of the Ordinance it is sufficient to state in the Notice that the resumption is required for public purpose without stating the particular purpose for which the land is required and the conclusive nature of the Notice. However, he argued that as the purpose of the resumption was stated in the Notice, s.19 no longer applied. As the Applicant's property is already part and parcel of the Ngau Pei Sha New Village, resumption of her property does not increase the village area, hence the only public purpose as stated in the notice is unsustainable and the property was not resumed for public purpose.

34. I do not accept this argument. The body of the Notice actually contained the following :

"TAKE NOTICE that the Governor in Council having decided that the above-mentioned lots and portions of lots are required for a public purpose, (emphasis added)the Governor has ordered that the above-mentioned lots and portions of lots shall be resumed and revert to the Crown on the expiration of THREE MONTHS from the date of the affixing of this notice to the said land."

The reference to the requirement for a public purpose in the Notice must activate the conclusive evidence provision of s.19.

35. In Chan Lau Fong and others v. The Attorney General, the respondent conceded that the conclusive evidence provision in s.19 did not apply if the Notice stated a particular purpose for the resumption. There is no similar concession in the present case. Clough J.A. in Chan Lan Fong stated that "by analogy with headings in a statute, it seems to us that a heading in a statutory notice may be used as a guide, albeit a brief and unexhaustive guide, in the interpretation of the meaning or scope of the operative provision of the Notice".

36. Mr Dykes drew my attention to s.18(3) of the Interpretation and General Clauses Ordinance which provides that marginal notes and section headings do not have any legislative effect and may not be used in the interpretation of statutes. Assuming such restrictions only apply to interpretation of statutes and not in relation to documents such as notices in the Gazette, the Notice actually stated that the Governor-in-Council decided that the properties were required for a public purpose. I agree with Mr Dykes' submission that the Governor-in-Council having decided that the resumption was for a public purpose but chose to describe that public purpose as resumption of land for village expansion area at Ngau Pei Sha New Village, then the description of the purpose does not detract from the fact that the resumption for a public purpose may be for any purpose of whatsoever description whether or not ejusdem generis with any of the purposes set out in paragraphs (a) to (c) of s.2 of the Ordinance which deals with the definition of resumption for a public purpose.

Bill of Rights

37. The Applicant also argues that the statutory scheme of resumption is contrary to the provisions of Article 14 of the Bill of Rights. Article 14 is as follows :

"(1) No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

(2) Everyone has the right to the protection of the law against such interference or attacks."

38. In my view, Article 14 has no application to the present case: it does not include the right to hold and own property. Article 14 of the Bill of Rights is based on Article 17 of the International Covenant on Civil and Political Rights ("ICCPR"). It is clear from the General Comments of the Human Rights Committee that Article 17 of the ICCPR is intended to protect the privacy of the individual. This can be contrasted with Article 6 of the Basic Law and Article 1 of the Protocol No.1 of the European Convention on Human Rights which is in the following terms:

" Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions of penalties."

39. Mr Chong, counsel for the Applicant, addressed me on the judicial interpretation of "arbitrary" and "law" in cases such as Ex Parte Lee Kwok Hung [1993] 2 HKLR 51; R. v. Yu Yem Kin [1994] 4 HKC 75' Gillow v. United Kingdom 11 EHRR 335 Malone v. United Kingdom 7 EHRR14.

40. Mr Dykes accepted that the concept of "law" referred to in the Bill of Rights is something wider than the domestic law and encompasses a universal concept of justice. He, however, argued that the Applicant has not shown that the Respondents have acted unlawfully or arbitrarily. Having decided that there is a duty to act fairly under administrative law, it is not necessary for me to reach a concluded view that in the event Article 14 applies, whether the failure to give notice to the property owner amounts to an arbitrary or unlawful interference with her private rights.

Conclusion

41. The Applicant has sought extensive remedies in her application but many were abandoned. In view of my decision, the only relief that is required in this case is a declaration that the order made by the 2nd Respondent for the resumption of the portion of the property of the Applicant was null and void. I shall grant liberty to the parties to apply for consequential orders that may be required. I shall grant costs nisi of the application to the Applicant.

(P. Cheung)

42. Judge of the High Court

Representation:

Mr S.H. Kwok & Mr C.S. Chong inst'd by M/s Wong, Poon, Chan & Law, for Applicant

Mr Philip Dykes inst'd by A.G.'s Chambers, for Respondents