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Kwan Kong Co Ltd v. Town Planning Board

Read the full judgment text of HCMP 1675/1994 on BabelCite. This High Court CFI judgment.

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Case No.HCMP 1675/1994
Court
High Court CFI
Date—
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Case Document
100%Judiciary

HCMP001675/1994

HCMP No.1675 OF 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of an Application by KWAN KONG COMPANY LTD. for Orders of Mandamus, Certiorari, Prohibition and Declaration
and
IN THE MATTER of the Town Planning Ordinance, Cap. 131 and a Decision of the Town Planning Board dated the 1st June 1994 refusing to amend Draft Outline Zoning Plan NO. S/K14N/1 ("the OZP")

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BETWEEN
KWAN KONG COMPANY LIMITED Applicant
and
TOWN PLANNING BOARD Respondent

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Coram: The Hon. Mr. Justice Waung in Court

Dates of Hearing: 26th-27th January, 3rd, 6th-10th, 13th-15th, 20th-21st, 28th February, 1st-3rd, 6th-8th March 1995

Date of Delivery of Judgment: 31st July 1995

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JUDGMENT

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1. On 21st May 1993, the Town Planning Board ("the Board") caused to be notified in the Government Gazette a draft Kwun Town (North) Outline Zoning Plan No. S/K14N/1 ("the Draft Plan"). The Applicant's land was within the zone designated as Other Specified Use (Quarry and Mining) in the Draft Plan. On 20th July 1993, the Applicant lodged the statutory objection to the Board and asked the Board to amend the Draft Plan. By its Preliminary Consideration, the Board refused to amend the Draft Plan and this refusal was notified to the Applicant on 2nd December 1993. At the meeting of the Board on 29th April 1994, the Applicant through its professional advisers made further representations to the Board asking the Board to amend the Draft Plan. On 1st June 1994, by its letter the Board informed the Applicant's solicitors that the Board had refused to amend the Draft Plan. Thereupon the Applicant applied to this Court for Judicial Review of the refusal by the Board to amend the Draft Plan. 
2. The application for Judicial Review is based on two main points. The first is that the Decision of the Board was what is generally known as Wednesbury unreasonable. This is the Wednesbury Point. The second issue is that the decision of the Board was in breach of the Bill of Rights Ordinance and therefore was invalid. This is the Bill of Rights Point. The Wednesbury point turns on the special facts of this case although it also touches on matters of considerable interest on the provisions of the Town Planning Ordinance ("the Planning Ordinance"). The Bill of Rights Point arises out of the Bill of Rights Ordinance ("the Ordinance") and raises potentially issues of considerable general importance touching on the general dealings between the Government and the public. I will divide this Judgment into three Parts, the First Part on the facts leading to the making of the Application, the Second Part on the Wednesbury Point and the Third Part on the Bill of Rights Point. 

PART I - FACTS

3. The Applicant is the registered owner of various lots in Kwun Tong near Sau Mau Ping (hereinafter referred to as "the Land") and has been such owner since 1978. The Land is agricultural land and by its Crown lease, its usage is restricted to agriculture. In 1982 by letter dated 6th August 1982, a short term waiver ("the Waiver") was given by the District Lands Office on behalf of the Crown as landlord to the Applicant so as to permit the Land to be used for open storage in addition to the usage for agriculture. Since that date and in fact for many years previously the Land had been used for open storage and only used for open storage. 
4. On the 11th of December 1987, the draft Kwun Tong Outline Zoning Plan No. S/K14/1 ("the Previous Draft Plan") was exhibited for public inspection under the Town Planning Ordinance. The Previous Draft Plan zoned the Land as a Green Belt zone. Objection was raised by the Applicant with the Board and the Applicant sought to have the part of the Land rezoned into Residential (Group B) for redevelopment purposes. The Board refused to amend the Previous Draft Plan on 24th August 1989 but this refusal to amend is not the material refusal and the Previous Plan is not the material plan. 
5. On 21st May 1993, the Draft Plan was exhibited for public inspection and by this Draft Plan, the Land of the Applicant was zoned into "Other Specified Use (Mining & Quarrying) Zone. In other words, the Land was zoned for mining and quarrying. By the letter addressed to the Board dated 20th July 1993 from Townland Consultants Ltd. ("Townland") on behalf of the Applicant, the Applicant lodged its written statement of objection with the Board pursuant to section 6(1) of the Planning Ordinance ("the Objections"). In the Objections, the Applicant sought to:- 
(a) have the Land excluded from the Mining and Quarrying zoning; and 
(b) have part of the Land rezoned to Residential (Group B) which is the zoning for high standard private residential development and 
(c) have the majority of the remaining part of the Land rezoned to Green Belt. In other words the Applicant by its Objections in July 1993 sought to have its Land 

In other words the Applicant by its Objections in July 1993 sought to have its Land

(1) zoned out of Mining and Quarrying; and 
(2) zoned into part Residential (Group B) and part Green Belt. 
6. By its preliminary considerations, the Board decided to reject the Objections of the Applicant. The Applicant requested by telephone on the 15th of December 1993 to be heard at a meeting of the Board to consider the Objections. That request was granted and the date of 25th February 1994 was fixed for that meeting of the Board. 
7. (a) By letter dated 27th January 1994, Townland asked the date of the meeting to be postponed to 11th March 1994. This request was granted by the Board. 
(b) By letter dated 9th February 1994, Townland said it could not prepare the further submissions in time and asked for the meeting scheduled for 11th March 1994 to be further postponed to early May. By letter dated 28th February 1994, the Board agreed to defer the proposed meeting to 29th April 1994. 
8. The Applicant did not meet the agreed deadline of mid March 1994 for lodging the further submissions. The further submissions of the Applicant in the form of what might be called supplementary submissions ("the Further Submissions") were sent to the Board on 9th April 1994. 
9. However, by letter dated 14th April 1994, Townland again sought a deferral of the meeting fixed for 29th April 1994 to late May 1994. The Board met on the 15th April 1994 and decided no adjournment would be granted and the Applicant was so notified. On the 20th April 1994, Paper No. 2610 prepared in response to the Further Submissions was circulated amongst the members of the Board. 
10. On 26th April 1994 the Applicant by its Solicitors, Messrs C.T. Chan & Co., sent a letter to the Board ("the Letter") advising that the previous grounds of objections of the Applicant still apply and that the Objections and the Further Submissions are the preferred position of the Applicant but however if necessary the Applicant was prepared to accept a fall-back position, namely to rezone the Land to Other Specified Use (Comprehensive Development to include residential units and supporting GIC and open space with interim quarrying activities and other formation work.) 
11. On the 29th April 1994, there was an important meeting of the Board ("the Meeting"). The membership of the Board in April 1994 consisted of 24 members (according to Mr. Cooney), 6 of whom are official members. But on the day in question, attending the Meeting were the following: 
1. Dr. K.S. Pun, Director of Planning, Vice-Chairman of the Board 
2. Dr. the Hon. Samuel P. W. Wong, Engineer and Member of Legislative Council 
3. Mr. S.W. Fung, Social Worker and Environmentalist 
4. Mr. Edward C. Pong, Industrialist 
5. Mr. K.K. Chan, Quantity Surveyor 
6. Miss Esther W.F. Chan, Architect 
7. Mr. C.N. Brooke, Estate Surveyor
8. Mr. Edmund K.S. Young, Industrialist
9. Mr. J.C. Shaw, Transport/Planning Consultant
10. Mr. David P.Y. Lung, Architect/Lecturer, Chairman of Antiquities & Monuments Advisory Board
11. Mr. Daniel C.K. Heung, Architect, Heung Yee Kuk member
12. Professor Anthony Walker, Professor, Building Surveying
13. Dr. C.Y. Jim, Senior Lecturer, Geography
14. Mr. John H.T. Yung, Industrialist
15. Mr. R.D. Pope, Director of Lands
16. Mr. C.D.B. Williams, representative of Secretary for Home Affairs
17. Mr. J. Croft, representative of Secretary for Transport
18. Mr. R.J.S. Law, representative of Director of Environmental Protection
19. Mr. Edmund C.W. Lo, Principal Government Town Planner, District
12. The Applicant attended the Meeting by its representatives, namely:-
1. Mr. Wong Hing Lee of Counsel
2. Mr. C.T. Chan, Solicitor
3. Mr. J.Y. Ng of the Applicant
4. Mr. Graeme Roberts of Townland
5. Mr. Tony Wu of Townland
13. The following representatives of the Government were also invited to the Meeting
1. Mr. Raymond T.L. Chiu of the Planning Department
2. Mr. U.K. Li of the Civil Engineering Department
14. At the Meeting, Mr. Wong of Counsel and Mr. Roberts of Townland addressed the Meeting. Mr. Wong of Counsel advised the Board that it was no longer the intention of the Applicant to do redevelopment of the Land and asked the Board to disregard the rezoning into Residential and Green Belt proposed in the Objections but said the main grounds of the Objections remained the same. Mr. Wong asked the Board to consider the fall-back proposal contained in the Letter, namely to rezone the Land to Other Specified Use (Comprehensive Development to include residential units and supporting GIC and open space with interim quarrying activities and other formation work.) For ease of reference I will hereinafter refer to this proposal as "the New Rezoning Proposal". The Vice-Chairman pointed out that the matters raised by the Letter was out of time. The Paper commenting on the Further Submissions was studied by the Board. The Board came to the conclusion that no amendment to the Draft Plan should be made.
15. On 1st June 1994, the Applicant was informed that the Board did not make any amendment to the Draft Plan. On 1st July 1994, this application for Judicial Review was launched and as I said earlier, based on two broad grounds, namely firstly, the Wednesbury Point which is a common law complaint and secondly, the human rights complaint based on breach of the Bill of Rights Ordinance.

PART II - WEDNESBURY UNREASONABLE

16. It is common ground between the parties that the correct principle for this first ground complaint under the common law is the Wednesbury principle as laid down in Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 K.B. 223. The court will interfere where it concludes that the decision of the public persons or bodies is such that no such person or body properly directing itself on the relevant law and acting reasonably could have reached that decision.
17. Since 1948, the Wednesbury principle had been the subject of further judicial development and refinement. The law as it now stands is reflected in what Lord Brightman said in R. v Hillingdon London B.C. ex p. Puhlhofer [1986] A.C. 486 at page 518:-

"My Lords, I am troubled at the prolific use of judicial review for the purpose of challenging the performance by local authorities of their functions under the 1977 Act. Parliament intended the local authority to be the judge of fact. The Act abounds with the formula when, or if, the housing authority are satisfied as to this, or that, or have reason to believe this, or that. Although the action or inaction of a local authority is clearly susceptible to judicial review where they have misconstrued the Act, or abused their powers or otherwise acted perversely, I think that great restraint should be exercised in giving leave to proceed by judicial review .... [It] is not, in my opinion, appropriate that the remedy of judicial review, which is a discretionary remedy, should be made use of to monitor the actions of local authorities under the Act save in the exceptional case. The ground on which the courts will review the exercise of an administrative discretion is abuse of power, e.g. bad faith, a mistake in construing the limits of the power, a procedural absurdity; see the speech of Lord Scarman in Nottinghamshire C.C. v Secretary of State for the Environment [1986] A.C. 240 at 248: Where the existence or non-existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely."

The principle I derive from the above authority suggests that the correct question I should ask, bearing in mind that it is "the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision-making power" is whether this is a case:-

"..... where it is obvious that the public body, consciously or unconsciously, are acting perversely."

The critical test is objective perversity and unless I can be satisfied that the act or decision complained of is perverse, I should not interfere.
18. The grounds of the Applicant upon which relief sought under the Wednesbury principle are set out in the 5 Grounds in the Re-Amended Notice of Application. Grounds 2 and 5 were abandoned by the Applicant in the course of the submissions (Ground 5 having been put under Bill of Rights point and not under Wednesbury point) and effectively there are now the following 3 Complaints:-
(1) The Board failed to take into account the New Rezoning Proposal.
(2) There was self interest and the Board should realise that the rehabitation scheme was a wrongful resumption and was not the only means.
(3) The Board had doubts as to implementation and was wrong to reach its decision with such doubts.

Planning in Hong Kong

19. Before I proceed to consider each of the Complaints, I should first say something about the way planning is organised in Hong Kong, secondly on the history of the planning control of the Kwun Tong area where the Land is located and thirdly on the opposition to the planning proposed. First, I deal with planning in Hong Kong.
20. Planning is concerned with the use of land. Planning, as I have been given to understand, seeks to promote the right development in the right place and at the right time so as to bring about a better organised, more efficient and more pleasant place in which to live and to work. Planning is therefore a duty of the Government and it is an important duty and is an essential part of formulating public policies by the Government.
21. Planning in Hong Kong is carried out at 3 basic levels: territorial, sub-regional and local district planning. The top 2 levels, territory planning (e.g. Port and Airport Development Strategy) and sub-regional planning (e.g. Metroplan) are conceptual and are primarily policy statements concerned with broad development strategies. They may raise issues of widespread public interest, but they do not create or restrict development. Therefore although the public might be consulted on these plans, there is no need to bring these top 2 level planning within a statutory framework.
22. The third level of planning, district planning represents the transition of the overall requirements together with specific identified local needs into detailed plans, designating various parcels of land for various uses. These district plans include the statutory outline zoning ("OZ") plans and development permission area ("DPA") plans. OZ plans are district plans which show the proposed land uses and major road system of individual planning scheme areas. Areas covered by such OZ plans are in general zoned for such uses as residential, commercial, industrial, government, institution/community, open space, green belt or other specified purposes. DPA plans are for areas which require immediate planning control prior to the presentation of OZ plans and mainly for the non-urban areas. DPA plans are interim control plans to allow time for the preparation of OZ plans. 
23. The statutory scheme of the Planning Ordinance provides for the Governor appointing under section 2, a Town Planning Board consisting of such official and unofficial members as he may nominate. Under section 2, the Governor also appoints any member of the Board either ex officio or personally, as Chairman or Vice Chairman. Thus the Board consisting largely of non-official members is an independent body. It is a statutory function of the Board under section 3 of the Planning Ordinance, with a view to the promotion of health, safety, convenience and general welfare of the community, to undertake the systematic preparation of draft OZ plans and draft DPA plans as the Governor may direct. It is the function of the Board in the preparation of the draft plans to make such inquiries and arrangements as it may consider necessary for the preparation of such drafts (s. 3(2) of Planning Ordinance).
24. It is to be noted that although it is part of the function of the Board to undertake the systematic preparation of the draft plan, the Board itself does not prepare the draft plan. As made clear by the opening words of section 5(1) of the Planning Ordinance, the draft plan is prepared under the direction of the Board. When the draft plan is so prepared, it is then exhibited by the Board for public inspection for a period of 2 months, pursuant to section 5(1). As a required supplement to exhibition for public inspection, section 5(1) also provides that the availability for inspection of the draft plan must be advertised weekly in the Government Gazette and a local newspaper. The Board has an obligation to supply a copy of the draft plan to anyone on payment of the reasonable fee.
25. A draft OZ plan will show definitive land use zones. The Notes attached to the plan and forming part of the plan specify for each zone, in a schedule:-
(1) uses which are always permitted (Column 1); and
(2) uses which may be permitted by the Board upon application, with or without conditions (Column 2).
Section 16 of the Planning Ordinance enables the Board to grant permission upon application for uses under Column 2 of the Notes.
26. Section 6 is the important provisions dealing with objections to draft plans. It reads:-
"(1) Any person affected by the draft plan so exhibited may within the said period of 2 months, send to the Board a written statement of his objection to anything appearing in the draft plan.
(2) Such written statement shall set out-
(a) the nature of and reasons for the objection,
(b) if the objection would be removed by an alteration of the draft plan, any alteration proposed.
(3) Upon receipt of a written statement of objection under subsection (1), the Board may give preliminary consideration to an objection in the absence of the objector and may propose amendments to the draft plan to meet the objection.
(4) If the Board proposes an amendment to the draft plan pursuant to subsection (3), it shall give notice in writing of the amendment proposed to the objector by registered post and may invite the objector to withdraw his objection on condition that the amendment is made as proposed.
(5) An objector may notify the Board in writing within 14 days after service of notice under subsection (4) that his objection is withdrawn on the condition that the amendment is made as proposed but if no such notification is received the objection shall continue in force.
(6) Where-
(a) the Board does not propose amendments under subsection (3);
(b) an objector does not notify the Board under subsection (5) that his objection is withdrawn; or
(c) an objector was conditionally withdrawn under subsection (5) and the Board does not proceed with the amendment proposed,
he Board shall consider the written statement of objection at a meeting of which the objector is given reasonable notice, and the objector or his authorised representative may attend such meeting and if he desires shall be heard.
(7) In any case where an amendment made by the Board to meet an objection appears to the Board to affect any land, other than that of the objector, held under lease, tenancy or permit from the Crown for a term exceeding 5 years, the Board shall give such notice by service, advertisement or otherwise as it deems desirable and practicable to the owner of the land in question.
(8) Any written objection received within 14 days after the giving of notice under subsection (7) shall be considered at a meeting of the Board of which the original objector and the objector to the amendment are given reasonable notice, and the objectors or their anthorised representatives may attend such meeting and if he or they so desire shall be heard.
(9) Upon consideration of an objection in accordance with subsection (6) or (8), the Board may reject the objection in whole or in part or may make amendments to the draft plan to meet such objection."
27. The scheme of the Planning Ordinance puts the objection procedure as a series of steps whereby the Board seeks the view of the community on the draft plan. The procedure under section 6 can be seen as serving a channel for direct dialogue and negotiation between the Board and the objectors. If necessary the Board can amend the draft OZ plan in such a way as to meet the objections raised. The draft plan which the Board submits to the Governor in Council should thus represent a considered view which takes account of any objection.
28. The ultimate and final decision about any draft plan rests with the Governor in Council which turns a draft plan into an approved plan or not or sends the draft plan back to the Board for amendment. Section 8 of the Planning Ordinance provides that the Board shall submit to the Governor in Council for approval:-
(a) a schedule of objections (if any) made under section 6 and not withdrawn;
(b) a schedule of the amendments (if any) made by the Board with a view to meeting such objections.
29. The Governor in Council, with the benefit of the draft plan and the details of the objections set out in the statutory schedule of objections, gives consideration under section 9 of the Planning Ordinance, as whether to:-
(a) approve the draft plan;
(b) refuse to approve the draft plan;
(c) refer it to the Board for further consideration and amendment.
If the Governor in Council approves a draft plan, such draft plan becomes an approved plan which is then exhibited for public inspection and the fact of such approval and exhibition must be notified to the public in the Gazette.

History of Planning leading to the Draft Plan

30. The aforesaid planning arrangement and statutory scheme is the setting against which I must now proceed to consider the way planning in this particular case had come about. As said earlier, there was a Previous Draft Plan which was the subject of objection by the Applicant and the subject of a meeting of the Board to consider the previous objection and on the 24th of August 1989, the Board rejected the objection to the Previous Draft Plan. In the rejection letter dated 24th August 1989, the Board gave the reason for not amending the Previous Draft Plan as, until land use of the quarries and the adjoining areas had been reviewed in the context of the Metroplan Study, the Green Belt zoning of the Previous Draft Plan was appropriate. The Metroplan referred to is the Metroplan Landscape Strategy for the Urban Fringe and Coastal Areas, which was endorsed on 31st March 1989 by the Land Development Policy Committee of the Government. The Land Development Policy Committee is a Committee, not under the Planning Ordinance, chaired by the Chief Secretary and with all the top secretaries of the Government as members. The function of this Committee is inter alia, to formulate development strategy, the initiation of subregional and sectorial planning studies, major proposals for land development in both public and private sectors before they proceed beyond outline planning and land use planning standards of major significance. This is the top Government Committee relating to land development. Below that is the Development Progress Committee, which is also not a creature of the Planning Ordinance, chaired by the Secretary of Planning, Environment and Lands, the function of which is inter alia, to ensure the general progress of physical development of Hong Kong, to consider and approve detailed planning layouts in accordance with standards laid down by the Land Development Policy Committee.
31. The policy making Land Development Policy Committee endorsed on 31st March 1989 the Metroplan Landscape Strategy which:-
(a) identified Anderson Road Quarries as an area of degraded landscape to be reinstated and
(b) recommended that early rehabitation, using a quarrying operation to produce a landform suitable for landscape restoration and building development at appropriate locations.
In November 1989 (some 2 to 3 months after the Board's rejection of the objection to the Previous Draft Plan), the Development Progress Committee endorsed the development statement for the rehabitation of Anderson Road Quarries. The main points in the Development Statement are:-
(1) main objective should be to create a natural looking vegetated slope, to form a safe and stable platform, to create an ecologically stable environment, to create development platforms for various Metroplan land use options and to provide some recreational facilities for the public;
(2) to achieve reinstatement of the quarries area, Government would need to renegotiate the 2 existing quarry contracts or negotiate a conclusion to the existing contracts and the setting up of new contracts;
(3) the existing Quarry operators, K. Wah and Pioneer ("the Quarry Operators") have expressed willingness to undertake quarry operation and to work with Government towards the rehabitation of the quarry area.
32. In 1991, a Study Brief was prepared by the Planning Department in consultation with other Government Departments to provide the basis for the Quarry Operators jointly to undertake studies to produce a desirable and coordinated rehabitation scheme. This Study Brief was endorsed by the Development Progress Committee on 9th May 1991.
33. Following endorsement of the Study Brief, in June 1991 a consortium of consultants was appointed by the Quarry Operators (who funded the future study) to undertake a detailed study as stipulated in the Study Brief. A Government Liaison Group under the Chairmanship of Principal Government Town Planner/Territorial was established in August 1992 to provide guidance to the Quarry Operators in the formulation and implementation of the rehabitation scheme. Although funded by the Quarry Operators, the consultant's reports were intended for the Government and prepared under the guidance of Principal Town Planner and were submitted to the Government Liaison Group for detailed examination and consideration and following acceptance of the reports by the Liaison Group, the study recommendations in the Reports were referred to the Development Progress Committee for endorsement.
34. The Draft Final Report of the study for the rehabitation of the quarries was presented on the 18th December 1992 to the Board in the form of a Board Paper to inform the Board members the rehabitation scheme as contained in that Report ("the Rehabitation Scheme"). Members of the Board were informed that the Rehabitation Scheme would take 20 years to implement and the findings of the Consultants were given to the Board.
35. On the 3rd of February 1993, the Governor gave direction to the Board, pursuant to section 3(1)(a) of the Planning Ordinance, to prepare a new draft Kwun Tong (North) Outline Zoning Plan and it was intended that this new draft plan would cover the quarry areas which had not been included previously in any statutory plan together with some areas within the then Tseng Lan Shue Development Permission Area Plan, Kwun Tong Outline Zoning Plan as well as the Ngau Tau Kok and Kowloon Bay Outline Zoning Plan. The purpose of this new draft OZ plan was to facilitate the control of the implementation of the Rehabitation Scheme.
36. The Planning Department prepared the new draft OZ plan and presented it to the Metro Planning Committee of the Town Planning Board for consideration at the Committee meeting on 5th February 1993. It should be noted that the Metro Planning Committee and the Rural and New Town Planning Committee are two working committees whose function was to assist the Board in coping with the increased workload of the Board. Amongst the matters delegated to the Metro Planning Committee are systematic preparation of new draft plans, exhibition of new draft plans and amendments to plans referred back under sections 9 and 12 and consideration of applications for planning permission. On the 19th of March 1993, the Metro Planning Committee agreed to publish the Draft Plan in the Gazette and on the 21st May 1993 the notice of the Draft Plan was gazetted and the Draft Plan was exhibited. The statutory period therefore started to run from the 21st May 1993.

History of Opposition to the Draft Plan

37. By its letter dated 20th July 1993. Townland on behalf of the Applicant sent to the Board the statutory written statement of objections ("the 1993 Objection Statement"). The main points of the 1993 Objection Statement are the following:-
(1) The Rehabitation Scheme was prepared by the Quarry Operators with no or minimum public consultation and it was motivated by self-interests.
(2) The Rehabitation Scheme proposed to extend the Quarries to the Land and beyond for a period of 20 years during which the Quarry Operators were to build a land platform for residential development.
(3) There would be serious environmental impact on the area.
(4) The Rehabitation Scheme would involve the inequitable resumption of the Land and the re-granting of it to the Quarry Operators.
(5) The Rehabitation Scheme is not the only means to achieve the objectives of rehabitation of the area.
The 1993 Objection Statement asked that amendments be made to the Draft Plan. The first amendment proposed is to rezone the Land and adjoining Government land into Residential (Group B) Use (see paragraph 4.2 of 1993 Objection Statement). The second proposed amendment to the Draft Plan is to rezone the remaining of the Land to Green Belt (see paragraph 4.3 of the 1993 Objection Statement).
38. (1) On 28th July 1993, the 1993 Objection Statement was circulated by the Board to the various Government Departments for initial comments. All the Government Departments responded and gave their comments.
(2) In October 1993, a Board Paper No. 2459 was prepared by the Planning Department. That Paper dealt with the comments from the various Government Departments, a summary of the objections raised by the Applicant in the 1993 Objection Statement, the planning considerations and the Planning Department's response to these and made suggestions at the end of the Paper as to the considerations the Board should give to in deciding on the Objections raised and whether to make amendments to the Draft Plan.
(3) On 8th October 1993, the Board met at its meeting and gave preliminary consideration pursuant to section 6(3) of the Planning Ordinance to the Objections of the Applicant. The result of the preliminary consideration was that the Board decided not to amend the Draft Plan. The decision was based inter alia on the following considerations:-
(a) the objective of the Rehabitation Scheme conformed with the Metroplan;
(b) the Rehabitation Scheme allowed phased restoration of the quarry face; 
(c) the rezoning proposed by the Applicant would result in piecemeal development and frustrate the implementation of the Rehabitation Scheme.
(4) By letter dated 2nd December 1993, the Applicant was notified that the Board after preliminary consideration did not amend the Draft Plan.
(5) On the 15th of December 1993, Mr. Tony Wu of Townland by telephone requested a meeting of the Board so that the Applicant could be heard on the Objections.
(6) On the 16th of December 1993, Townland was advised by letter that the meeting of the Board would be on 25th February 1994. The letter also confirmed Mr. Wu's advice to the Board that further written submissions would be submitted to the Board in mid January 1994.
(7) By Memo dated 25th January 1994, the Planning Department in preparation for the meeting sought confirmation of the views previously expressed and also further comments from the various Departments and apparently all the Departments responded.
(8) By letter dated 27th January 1994, Townland requested an adjournment of the meeting to 11th March 1994 and advised that further submissions would be delivered to the Board by 9th of February 1994. This is the first request for adjournment.
(9) On 1st February 1994, the Board agreed to the said first request for adjournment and Townland was advised by letter of the same date. In the last paragraph of that letter the Board specifically asked that Townland should send in the further submissions on or before 9th February 1994 as agreed.
(10) On 9th February 1994, the date agreed for the handing in of the further submissions, Townland requested by its letter for a second adjournment advising that further submissions would be put in by mid March 1994. Townland asked for the date of meeting to be postponed to early May 1994.
(11) The 2nd request for adjournment was granted by the Board's letter of 28th February 1994 and the new date given to Townland of the meeting was 29th April 1994. In the letter, the Board asked the further submissions to be delivered by mid March 1994 as promised.
(12) The further submissions were not delivered as promised in mid March 1994. Eventually one month later, the Further Submissions of the Applicant were given to the Board.
(13) By Memo dated 11th April 1994, the Planning Department sought comments from all the relevant Government Departments on the Further Submissions of the Applicants and apparently all the Departments responded.
(14) By Townland's letter dated 14th April 1994 (5 days after its Further Submissions), Townland requested a third adjournment of the meeting to late May 1994. The reason given for this request for third adjournment is to enable the various Government Departments to respond to the Further Submissions. This request for a third adjournment was timed to coincide with the next day's scheduled regular meeting of the Board.
(15) On 15th April 1994, the day after the receipt of Townland's letter of 14th April, the Board met and after consideration (including the view of Geological Department's Memo of 14th April 1994 showing concern about further delay) decided that no further adjournment should be given. The secretary of the meeting indicated to the Board that a paper responding to the Further Submissions could be prepared in time for the 29th April meeting. A letter of that same date was then sent by the Board to Townland advising that the third requested adjournment had been refused.
(16) On 22nd April 1994, Paper No. 2610 in response to the Further Submissions and generally on the opposition to the Draft Plan was prepared for the Board and sent to Board members and also to Townland.
(17) On 26th April 1994, Messrs. C.T. Chan & Co. first came on the scene as solicitors for the Applicant and wrote by their letter dated 26th April 1994. The Letter set out a new alternative proposal for rezoning the Land. In essence the new amendment to the Draft Plan sought by the Applicant is to:-
(a) rezone the Land out of Mining and Quarrying; and
(b) rezone the Land into Other Specified Use (Comprehensive Development to include residential units and supporting GIC and open space with interim quarrying activities and other formation work.)
The New Rezoning Proposal under (2) above is something totally new and was never raised previously.
(18) On the 29th April 1994 Counsel, Solicitors and Mr. Roberts and Mr. Wu of Townland attended at the Meeting. The papers put before the Board for that Meeting included inter alia the following:-
(a) the 1993 Objection Statement;
(b) the October 1993 Board Paper No. 2459;
(c) the minutes of the October 1993 meeting of the Board;
(d) the Further Submissions;
(e) the various correspondence exchanged relating to the various adjournments sought;
(f) the Board Paper No. 2610 in response to the Further Submissions and in relation generally to the opposition of the Applicant to the Draft Plan;
(g) the Letter.
At the Meeting, Mr. Wong for the Applicant said that the amendments sought by the Applicant in the 1993 Objection Statement and in the Further Submissions had been abandoned and that new amendment to the Draft Plan the Applicant was seeking was the New Zoning Proposal. At the Meeting it was pointed out to the Applicant by the Vice Chairman that the new proposed amendments to the Draft Plan was received out of time and this was not disputed by the Applicant at the Meeting.
(19) The decision reached by the Board after deliberation was that the Draft Plan would not be amended. The minutes show that the Board took the following into account in deciding not to amend the Draft Plan:-
(a) the Rehabitation Scheme was essential in the public interest in producing a safe, stable and visually acceptable landform for the future planned land uses which would meet the Metroplan's objectives for the area;
(b) planning objective of zoning into mining and quarrying was appropriate to facilitate the implementation of the Rehabitation Scheme and the objective conformed with the Metroplan;
(c) detailed environmental assessment had been undertaken and appropriate mitigation measures against nuisance and disturbance would be implemented to ensure environmental acceptability;
(d) traffic study had confirmed the acceptability of traffic increase;
(e) proposed rehabitation scheme would allow phased restoration of quarry face, not precluding early landscape reinstatement.
It should be noted that by comparison with the grounds given by the Board for its previous decision under preliminary consideration, ground (a) above was a new ground of the Board for its decision not to propose any amendment to the Draft Plan
(20) The members of the Board agreed that the Draft Plan would be submitted to the Governor for approval under section 9 of the Planning Ordinance. The Applicant was notified by the Board on 1st June 1994 that the Board would not be proposing any amendment to the Draft Plan.
(21) On the 5th of July 1994 the Governor in Council pursuant to section 9(1) of the Planning Ordinance, approved the Draft Plan which then became the Approved Plan and on 8th July 1994, the approval of the Governor in Council was gazetted.
39. I have set out in some detail this historical account as I take the view that the chronology of the events and what happened will help to put the various Complaints advanced by Mr. Lee under the Wednesbury Unreasonable Principle in a clearer context.
40. I pause briefly to consider my approach and the principle to apply. This is an application for Judicial Review of a planning decision. It is trite law that the courts do not review the merits of the administrative decision only their lawfulness. In the context of judicial review of planning decision, it pays to remind oneself this well-known principle. In the very recent authority of the House of Lords in Tesco Stores Ltd. v Secretary of State for the Environment [1995] 1 W.L.R. 759 (reported on 26th May 1995), Lord Hoffman said at page 780F-H:-
"... The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all the material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.
          This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."
The correct approach I should adopt under this aspect of the Wednesbury Principle is to remind myself firmly that matters of planning merits are exclusively within the province of the Board and that unless the Board had acted illegally in law by failing to take into account a material consideration which it ought to have taken into account, the weight to be given to that material consideration, even if no weight at all, is entirely for the Board as a matter of planning judgment and not for the Court.

Complaint 1

New Rezoning Proposal not taken into account

41. Although formally the matter of the Further Submissions was included in the First Ground of Relief together with the New Rezoning Proposal, the real and only serious complaint under this heading of the Complaint relates not to the Further Submissions but the New Rezoning Proposal. The question for the Court is whether the Applicant had shown that the refusal or failure by the Board to consider the New Rezoning Proposal was Wednesbury unreasonable or was perverse or irrational.
42. Before I examine the detailed facts as to what the Board did or did not do, it seems to me relevant to consider what is exactly the duty of the Board under section 6 of the Planning Ordinance to consider objections. Under section 6(1), (2) and (6) it is clear that:-
(1) any person affected by a draft plan may object;
(2) the objection under (1) must be lodged within 2 months;
(3) the objection under (2) must be by way of a written statement of objection;
(4) the written statement of objection under (3) must set out:-
(a) the nature of the objections;
(b) the reasons for the objections;
(c) the proposed alteration to the draft plan, if the objection would be removed by an alteration of the draft plan;
(5) where the Board, does not amend the draft plan after preliminary consideration, the Board must consider the written statement of objection under (4);
(6) the consideration by the Board under (5) is at a meeting of the Board;
(7) at the meeting of the board under (6) of which the objector must be given reasonable notice, the objector can be heard if he desires it.
It seems to me clear from the above that the duty of the Board at the meeting to give consideration is not to any objection, but confined to the statutory written statement of objection. The question is whether the New Rezoning Proposal of the Applicant is a statutory written statement of objection. In my view it is clearly not. The 3 essential ingredients of a written statement of objection under the statute are those at (4)(a), (b) and (c) above and of these (c) is the most important ingredient for our purpose. The New Rezoning Proposal only came into being nearly one year after the exhibition of the Draft Plan. It is therefore not within the 2 months period. The New Rezoning Proposal cannot on any view be regarded as the original rezoning proposal of July 1993 or as an elaboration or development of that original July 1993 rezoning proposal. The New Rezoning Proposal is a radically different proposed alteration to the Draft Plan from the proposed alteration set out in July 1993. The merits of this New Rezoning Proposal is very different from that proposed in July 1993. This New Rezoning Proposal has its own ramifications and required its own investigation, consideration and details. In my judgment, this New Rezoning Proposal, the subject of the present complaint, is not a written statement of objection under section 6(6) which the Board is obliged to consider at the meeting of the Board. In the circumstances, I cannot conceive how the Applicant can possibly complain about any breach of statutory duty by the Board.
43. If the Board did not have a statutory duty to consider the New Rezoning Proposal, then the best case the Applicant can put forward is that the Board had a discretion to consider it but did not do so. I do not really see how in that situation, on the evidence before the Court, the Applicant can demonstrate a case of perversity or absurdity or irrationality by the Board.
44. The undisputed facts show that the Applicant had chosen to be represented throughout the objection process (from the first round of objections in 1987 to the very last in April 1994) by the highly professional team of Townland, who should and must know what they were doing. The detailed chronology set out at paragraph 38 makes it very clear that the Applicant was very generously and sympathetically treated by the Board which had given the Applicant every opportunity to present properly its objections. It can be seen that repeated adjournments and time extensions were given even though promises made to the Board for the delivery of Further Submissions were broken time and again. There is nothing in the papers to suggest that in July 1993 or even in the last months of 1993 the Applicant could not have put in the New Rezoning Proposal. At the very last minute, (after submitting two long documents in July 1993 and 9th April 1994 which were each considered by all the relevant Government Departments and dealt with in two long papers prepared by the Planning Department and after the Board had already considered the Objections at a preliminary meeting) when every possibility of adjournment had been exhausted, the Applicant chose to put forward 3 days before the Meeting, the New Rezoning Proposal. The Board rejected it as coming in too late. Could that decision of the Board be said to be irrational or perverse or that something no reasonable Board would have done. That question only had to be asked for it to be dismissed.
45. I have been referred to the case of Howard v Secretary of State for Environment [1975] 1 Q.B. 235 which turned on a different statute and not in relation to any judicial review. I derive no assistance from it. Tai Tung Industrial Equipment Ltd. v Director of Lands (Unreported Judgment of Mayo, J. in HCMP 2262 of 1994) might bear greater similarity to this case.
46. Mr. Lee submits that the Board could have adjourned the Meeting and could have asked for more material and input and could have given itself more time to consider the New Rezoning Proposal. He puts it as high as the Board should have done it. Of course, the Board could do so but it did not and the question is not whether that judgment is right or wrong but whether it could be demonstrated that the Board decision was absurd or perverse. With all due respect to the arguments of the Applicant, given the facts of this case (bearing in mind specially that in this matter involving a very large amount of technical information, without explanation a brand new proposal was put up 3 days before the Meeting), not only do I take the view that the Board was not acting perversely or absurdly, I would be inclined to the view that any sensible Board would have done the same.
47. It is important to remember in the context of the Applicant's attempt to find fault that the Board is a statutory body exercising its duty on a planning matter and it is the exercise of the planning judgment that is being attacked. The Board is a large board consisting of some 24 members with a great diversity of backgrounds who were chosen to contribute to the important planning judgment which the Board would have to exercise. On the day in question, there were 19 members attending and as can be seen from the list of members at paragraph 11, such a Board must be regarded as being able to exercise professionally the planning judgment and discretion entrusted to the Board by the statute. When there is a Board of that size and diversity of distinguished backgrounds, it seems to me that the task of establishing irrationality turns from the very difficult to the almost impossible. Irrationality of one civil servant is one thing but irrationality of a large body of distinguished professionals must both as a matter of law and as a matter of fact be very rare and difficult to establish.
48. Whether the Court is convinced that on the planning decision, the Board is wrong or that the Board ought to act differently is to my mind really irrelevant. Planning merits do not enter into judicial review. The Court can and should only interfere if it can be clearly shown that there was an aberration by the Board. The Board was master of its own house. It could take into account many factors articulated or not, including the conduct of the Applicant and their professional advisers and the necessity to proceed with promulgation of the plans and the time it had already taken for this process and the strength or weakness of any objections and the reasons of such objections. The Board had lived with this draft Plan and its merits and its shortcomings for a long time and had been given a great deal of planning input as to be able to say whether the draft Plan ought to be amended and if so in what way or whether it requires more time to do so. Being alive to so much, the Board decided not to entertain the very very late New Rezoning Proposal and refused to amend the draft Plan. I do not see how in the circumstances, the Board's decision could be said to be Wednesbury unreasonable.

Complaint 2

(1) Self Interest of the Quarry Operators & Government

(2) Rehabitation Scheme was not the only means

(3) Rehabitation Scheme involved wrongful and inequitable resumption

49. These complaints which featured heavily in the opening of Mr. Lee but lost their impetus in the reply of Mr. Lee, can be dealt with fairly quickly. These are all matters which had been put to the Board and reflected in the papers (including specially the 1993 Objection Statement and the Further Submissions and the Board Papers) and the various discussions of the Board. Even if there is anything in any of these points and in my view there is not, these are really matters of planning judgment and planning merit and the weight to be given to them by the Board. The Board had exercised its planning judgment and I do not see how this Court can interfere with such planning judgment. It is perhaps worth pointing out in this connection that many of the complaints made by the Applicant in this case relate to matters where the Board with mastery of its own field and having sound and reliable knowledge of the relevant overall policies of the Government, is in a peculiarly advantageous position to best exercise its judgment and extend the policy of the Government on planing and it is not a function of the Court to interfere. As was said by Sir Gerald Brennan:-

"The courts are kept out of the lush field of administrative policy, except when policy is inconsistent with the express or implied provisions of a statute which creates the power to which the policy relates or when a decision made in purported exercise of a power is such that a repository of the power, acting reasonably and in good faith, could not have made it. In the latter case, something overwhelming must appear before the court will intervene. That is, and ought to be, a difficult onus for an applicant to discharge." (Sir Gerald Brennan on The Purpose and Scope of Judicial Review, Judicial Review of Administrative Actions in the 1980s, page 33)

Complaint 3

The Board was Wrong to reach decision when in doubt as to implementation

50. This complaint again practically disappeared from Mr. Lee's reply and I will just say a few words on it. I agree with Mr. Cooney that this is a wrong reading of the Minutes of the Meeting. The Board did not have doubts as to implementation but was merely seeking an information paper. The Board's function was to consider land use and not to concern itself with implementation relating to the quarry operation. But even if the Board did have its doubts, it had resolved its doubt by refusing to amend the Draft Plan. How could this be said to be Wednesbury unreasonable or perverse.

PART III - THE BILL OF RIGHTS

51. The real strength of the Applicant's case and most of the hearing time was taken up by long submissions on the Bill of Rights point. The case of Mr. Lee on the Bill of Rights is that the decision made by the Board under the statutory provision of section 6(6) of the Planning Ordinance is in breach of Article 10 of the Ordinance and therefore is invalid and of no effect. This is a fundamental attack on the validity of section 6(6) Meeting decision and if Mr. Lee is correct the attack is not confined to only that decision of the Board under the Planning Ordinance but could affect many other administrative decisions under a multitude of statutes of Hong Kong. Having regard to the very extensive submissions made to me, I propose to consider the Bill of Rights point under four Sections with:
(1) Section A on the statutory interpretation of the words "in a suit at law";
(2) Section B on the two international instruments on human rights and the history of the Ordinance which derives its existence from one of those two instruments and the correct approach to the interpretation of the Ordinance;
(3) Section C on whether Article 10 gives rise to a right of access to the court and scope of Article 10; and
(4) Section D on a consideration of the particular provisions of Article 10 and whether the facts of this case bring this refusal of the Board within the provisions of Article 10.

Section A - Interpretation of "in a suit at law"

52. The Bill of Rights Ordinance ("the Ordinance") came into force in Hong Kong on 8th June 1991 and purported to incorporate into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong. Article 10 under section 8 of the Ordinance, with the heading "Equality before the courts and right to fair and public hearing" reads as follows:-

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances, where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

53. The fundamental submission of Mr. Lee for the Applicant is that the refusal of the Board to amend the Draft Plan at the Meeting of the 29th April 1994 ("the Refusal") is caught by Article 10 and very elaborate argument was addressed to me by Mr. Lee on this, mostly with material derived from European legal literature. The immediate and short response of the Respondent to this is that Article 10 was not engaged because the Refusal was not made "in a suit at law". The debate is therefore on the interpretation of those words in Article 10 of the Ordinance.
54. The word "suit" is well accepted in the English language as meaning legal process. In the Shorter Oxford English Dictionary, suit is defined as a process instituted in a court of justice for the recovery or protection of a right, or the redress of a wrong. The word "suit" in the legal context is in fact of ancient lineage. Suit is said to be any legal proceeding of a civil kind brought by one person against another person (Coke on Littleton 291a). Formerly the most important kind of suits were those brought by bill of complaint and information in the Court of Chancery. Under the practice of Court of Chancery, an ordinary suit was commenced by filing or exhibiting a bill of complaint which was a printed document in the form of a petition, addressed in ordinary cases to the Lord Chancellor, containing a statement of the plaintiff's case, and concluding with a prayer asking for the relief which he filed the bill to obtain. (see Hunter Suit in Equity).
55. The old technical distinction between "actions at law" and "suits in equity" is well known (see Jessel, M.R. in Sutton v Sutton (1882) 22 Ch. D. at page 516 where he said a proceeding at law is called an "action" and 'a proceeding in equity is called "a suit"') but now, actions and suits are both included in the still wider term "cause" (see Halsbury Laws, 3rd edition, Volume 1, page 3).
56. "Suit at law" therefore means very clearly a legal proceeding in a court of law. I do not believe that when reference is made to a suit at law, any lawyer or layman will have any doubt that the words can have only one meaning, namely a legal court proceeding.
57. It was argued however by Mr. Lee that the words "suit at law" do not bear such plain and ordinary meaning but a totally different meaning, if he is permitted to go to the European authorities on human rights. It seems to me that I must first try to give those words in Article 10 their ordinary plain meaning in English if I can and only when I come to the conclusion that the words are so ambiguous should I resort to interpretation of those statutory words by seeking help from other sources which arguably might include the European human rights reports.
58. In carrying out that exercise of construing these statutory words, I must of course have regard to the whole of Article 10 and not just the words "suit at law". Article 10 is plainly a provision dealing with courts and tribunals. The very opening sentence of Article 10 refers to equality before courts and tribunals. The reference to "hearing", "impartial tribunal", "trial", "opinion of court", "judgment rendered in a criminal case or in a suit at law" and "proceedings" all suggest clearly and forcefully that the Article was only concerned with legal court proceedings and nothing else.
59. It seems to me that when construing the words "in a suit at law" I must pay particular attention to the same expression occurring at two places in Article 10 and I should give to those words occurring twice in the Article, the same meaning. Although I had been addressed by Counsel on the first usage of these words in the context of "determination of .... his rights and obligations .... in a suit at law", I was not addressed properly on the second usage of those words which says "any judgment rendered ..... in a suit at law shall be made public". The usage of the words "in a suit at law" in connection with judgment delivered in public can leave no doubt that the reference there is unmistakeably to a formal judgment in legal court proceedings delivered in public, something familiar to everyone brought up under the common law system of Hong Kong. The "suit at law" can therefore only mean a formal law suit, action or proceeding brought in court by one party against another party. This meaning applies to the usage (at two places) of the words in Article 10 and I have no doubt that this is the correct interpretation of those words.
60. With such being the meaning and interpretation of "in a suit at law", the question then simply is to ask whether the Refusal to amend the Draft Plan by the Board on the 29th April 1994 can be said to be a determination of the Applicant's rights and obligations "in a suit at law". Whatever might have been the Refusal of the Board, I do not believe anyone can contend such Refusal was made in a legal court proceeding or in layman's language in a lawsuit. It must follow that Article 10 of the Ordinance (on my interpretation of the vital words "in a suit at law") was not and was never engaged by the Refusal of the Board and accordingly the fundamental point of the Applicant on human rights must fail.
61. The above conclusion will be sufficient to dispose of the application for Judicial Review. But out of deference to the extensive and lengthy arguments presented to me on the rest of the Human Rights Point and with knowledge that my conclusion might be challenged elsewhere and that the other grounds relied on by the parties will become possibly relevant, I turn to the very controversial and difficult terrain of the Hong Kong Bill of Rights Ordinance, its interpretation, its relationship to other human rights provisions in other jurisdiction; and its true meaning and effect in relation to the facts of this case.

Section B - UN Covenant, European Convention, Ordinance & Interpretation of the Ordinance

62. In order to properly understand and analyze the various provisions in Article 10 of the Ordinance relied on by the Applicant, it is necessary to go back in history to immediately after the Second World War. After the horrors of the War, the United Nations backed by the United States strongly sought to promote respect for human rights. On 10th December 1948, the General Assembly of the United Nations adopted, with 48 votes in favour, none against and eight abstentions, the Universal Declaration of Human Rights. The Universal Declaration however was not intended to impose legal obligations on States, but rather to establish goals for States to work towards.
63. After the Universal Declaration of Human Rights, it took the United Nations 18 years of discussion, drafting and negotiation to achieve the United Nations International Covenant on Civil and Political Rights ("the UN Covenant"). As described at page 28-32 of Robertson & Merrills on Human Rights in the World, 3rd edition the path of coming into being of the UN Covenant was not smooth or easy and the final destination was reached largely as a result of various compromises. The UN Covenant was finally approved by the General Assembly of the United Nations in December 1966 with more than 100 votes in favour. However 35 ratifications are required to bring the UN Covenants into force and this only took place in 1976. Over 100 countries in the United Nations have apparently ratified the UN Covenant.
64. Because of the involvement of a large number of countries with very diversified backgrounds, including many third world and under-developed countries, it took 18 years for the UN Covenant to come into being and another 10 years for it to be ratified and come into force. In Europe, however with the homogenous and much more advanced legal, financial, social and democratic conditions, it took far less time to negotiate and reach European agreement on the European Convention on Human Rights ("the European Convention"), which was signed in Rome in 1950 by the foreign ministers of the relevant European countries. The European Convention came into force in 1953 when 10 ratifications had been deposited.
65. But these two international instruments are in fact very different although they purport both to deal with human rights. The UN Covenant contains some 23 rights while the European Convention and its Protocol contain some 25 rights. Some 11 rights are included in both instruments in substantially similar terms. These are the similar rights, listed under the Article No. of the UN Covenant:-
Article 7 on Freedom from torture and inhuman treatment.
Article 8 on Freedom from slavery, servitude and forced labour.
Article 9 on The right to liberty and security of the person.
Article 11 on Freedom from imprisonment for failure to fulfil a contractual obligation.
Article 12 on The right to freedom of movement.
Article 15 on Protection against retroactivity of the criminal law.
Article 17 on The right to privacy.
Article 18 on The right to freedom of thought, conscience and religion.
Article 19 on The right to freedom of expression.
Article 21 on The right to peaceful assembly.
Article 22 on The right to freedom of association.

It should be borne in mind that even when these rights are defined in substantially similar terms in both instruments, in some instances there are differences between the definitions which are important.

Article 6 on The right to life.
Article 14 on The right to a fair trial.
Article 23 on The right to marry.
Article 25 on The right to political rights.
There are altogether 8 rights which are included in the UN Covenant but not found in the European Convention. Finally there are three rights found in the European Convention which are not in the UN Covenant.
66. The major differences between the two instruments however go even deeper and further in the measures of enforcement. The protection of human rights under the European Convention is sophisticated and by means of the creation of a European Commission of Human Rights and a European Court of Human Rights. Complaints are first brought against any country in breach to the European Commission of Human Rights and if found to have substance will then be brought to the European Court of Human Rights, which had one judge from each member of the Council of Europe. The cases from the decisions of the European Court of Human Rights form the rich literature of the European Human Rights Reports. On the other hand, the UN Covenant has a very much weaker enforcement machinery reflecting the fact that it is an international agreement between countries of very diversified backgrounds and different levels of social, economic, cultural and legal conditions and that the enforcement of human rights under the UN Covenant had to be by way of lowest common denominator of acceptability to these diversified states. There was no International Court of Human Rights. There was only a UN Human Rights Committee and the competence of this UN Human Rights Committee to examine Inter-State complaints of breach of the UN Covenant was only an optional procedure which no state could be compelled to invoke or accept. It can be said that unlike the European Court of Human Rights covering the European Convention successfully and reaching further and further out to stretch human rights under the European Convention, the UN Human Right Committee had been far less active with little real power and with practically no legal jurisprudence built up on the UN Covenant.
67. It is against this background that Hong Kong enacted the Ordinance. Because of misconceptions about the special position of human rights enjoyed under Hong Kong law and said to be entrenched constitutionally, it is important to appreciate exactly what are the relevant provisions of the Ordinance. I set them out below (with the significant parts of the Ordinance and of other quotations shaded by me). The Preamble of the Ordinance reads:-

"An Ordinance to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong and for ancillary and connected matters."

The Ordinance is divided into three Parts with Part I from section 1 to 7 being Preliminary, Part II consisting of section 8 only being the Hong Kong Bill of Rights and Part III from section 9 to 14 being the exceptions and savings.
Section 2(3) of the Ordinance reads:-

"In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong and for ancillary and connected matters"

Section 3 of the Ordinance reads:-
"(1) All pre-existing legislation that admits of a construction consistent with this Ordinance shall be given such a construction.
(2) All pre-existing legislation that does not admit of a construction consistent with this Ordinance is, to the extent of the inconsistency, repealed."
Section 4 of the Ordinance reads:-

"All legislation enacted on or after the commencement date shall, to the extent that it admits of such a construction, be construed so as to be consistent with the International Covenant on Civil and Political Rights as applied to Hong Kong."

Section 7 of the Ordinance provides that the Ordinance binds only the Government and all public authorities and any person acting on behalf of the Government or a public authority. Section 8 of the Ordinance sets out 23 separate Articles of the Hong Kong Bill of Rights which purport to reproduce some but not all of the UN Covenant. Article 10 of the Ordinance is the material Article and it is a reproduction of Article 14(1) of the UN Covenant. Under Part III of the Ordinance exceptions and savings were provided.
68. On 8th June 1991 when the Ordinance came into force, an amendment to the Hong Kong Letters Patent also entered into force. This amendment made by Hong Kong Letters Patent 1991 No. (2), inserted a new article VII(3) into the Letters Patent and this new article provides that:-

"The provisions of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16th December 1966, as applied to Hong Kong, shall be implemented through the law of Hong Kong. No law of Hong Kong shall be made after {8 June 1991} that restricts the rights and freedoms enjoyed in Hong Kong in a manner which is inconsistent with that covenant as applied to Hong Kong."

69. Some 3 months after the coming into force of the Ordinance, the Hong Kong Court of Appeal delivered the judgment in R v Sin Yau-ming [1992] HKCLR 127. This is a case where various presumptions under the Dangerous Drugs Ordinance against the accused were held to be inconsistent with the right of presumption of innocence under Article 11 of the Ordinance. The leading judgment was given by Silke, V.P. and this judgment had been the source of much following. As there are widely held views on the effect of the Ordinance and the correct approach to the interpretation of the Ordinance which derive their source from this leading Judgment, it seems to me that my starting point in the consideration of my general approach to the Ordinance must be to study carefully the leading judgment and any concurring judgment of the Court of Appeal in Sin Yau-ming. This I will now try to do.
70. Under the heading of "General principles for the interpretation of the Hong Kong Bill", after setting out section 2(3) of the Ordinance on interpretation of the Ordinance, at page 139 of Silke's Judgment, the following is said:-
"It is accepted by both sides before us that there exists a well established principle of common law relating to the construction of statutes which are intended by the legislature to domesticate an international treaty to which the state - ..... is a party. The words of the statute should be interpreted by the court being intended to carry out the state's international treaty obligations.....
          We are concerned with a constitutional document even though brought into force by an Ordinance. It is nevertheless established as a self-contained document by virtue of the provisions of the Letters Patent and section 8 of the Hong Kong Bill."
Then after citing what was said by Lord Wilberforce in Ministry of Home Affairs v Fisher [1980] A.C. 319 at 329B and D on the interpretation of constitutional document as sui generis calling for principles of interpretation of its own, the learned Vice President said at page 140:-

"I accept, and it is not a matter of controversy, that we should view the Hong Kong Bill as being sui generis. Sections 3 and 4 which I have set out above make it clear that all existing and all new legislation is required to be consistent with the Covenant. Therefore the Covenant becomes supreme. Not the legislature."

I have shaded these words in the Judgment which are important and which need to be understood properly if only to avoid confusion.
71. The reasoning of the learned Vice President as I understand it is that he equated the Ordinance as a constitution or a constitutional document in the same way as Lord Wilberforce looked at the Constitution of Bermuda and that therefore it was permissible to take the radical course to treat this constitutional document as sui generis thereby giving rise to a different principle of interpretation for such a constitutional document with the final result of the covenant being supreme and not the legislature. It seems to me that the above reasoning of the learned Vice President call for the following questions:-
(a) Is it correct that the Ordinance was a constitutional document and therefore sui generis;
(b) Is it correct that the covenant is supreme and not the legislature.
72. In Sin Yau-ming, it was common ground between the parties that what was there called the Covenant (see definition of Covenant of Silke, V.P. at page 137) and what I call here the UN Covenant was a constitutional document. This must be incorrect as the applicable Hong Kong instrument implementing into the law of Hong Kong the UN Covenant was the Ordinance and not the UN Covenant. The Ordinance which brings into force certain provisions of the UN Covenant is just an ordinary statute of Hong Kong passed by the Legislative Council like any other piece of legislation in the form of an Ordinance. It can be amended or it can be repealed like any other ordinary legislation and therefore the Ordinance by itself cannot be called a constitutional document. Nor is there anything in the contents of the Ordinance to make the Ordinance a constitutional document. Silke, V.P. wrongly attributed to the UN Covenant Preamble as applicable to Hong Kong whereas it was not implemented into Hong Kong law (not a case of as applied to Hong Kong) because the Hong Kong Bill of Rights did not set out the preamble of the UN Covenant. There is nothing in any of the provisions of the Ordinance which makes it a constitutional document in the sense of Bermuda Constitution or the Constitution of the United States being constitutional documents. (It should be noted here that section 8 of the Ordinance did not even set out or make reference to the Preamble to the UN Covenant and that therefore the reliance on that Preamble at page 140-1 of the Judgment and calling into aid the "full recognition and effect to those fundamental rights ..... with the statement of which the Constitution begins" of Wilberforce was wholly unjustified, which error was compounded by the mistaken drawing of analogy of that UN Covenant with section 1 of the Bermuda Constitution which was a part of the Bermuda Constitution as can be seen at page 325F-H of Ministry of Home Affairs v Fisher [1980] A.C. 319). Section 8 of the Ordinance was mentioned at page 139 of the Vice-President's Judgment as establishing the UN Covenant as a constitutional document but section 8 merely sets out the 23 Articles of the UN Covenant and call them Hong Kong Bill of Rights. Section 8 of the Ordinance did not even purport to provide that all the Articles under section 8 are to apply to Hong Kong and that the rights under the Hong Kong Bill of Rights shall be enjoyed in Hong Kong by everyone. In fact for that matter, strangely enough, there is no such provision at all in the Ordinance.
73. This leaves therefore only one document which could be said to be a constitutional document, namely the relevant Letters Patent. Here the words of the Letters Patent are all important. The way this legislation was framed to bring human rights into Hong Kong was not by a direct embedding or entrenchment of the UN Covenant in the Letters Patent, which could be done but was not. The means chosen to bring human rights into Hong Kong, as could be seen from the use of the much repeated words "as applied to Hong Kong" was to leave the introduction and the continued application of the UN Covenant through the local laws of Hong Kong. In other words, the Letters Patent left the existence of the UN Covenant in Hong Kong to the Ordinance and these 23 Articles under section 8 of the Ordinance have a life so long as the local legislature allows it to have any life. That does not make the Ordinance or the Articles in section 8 of the Ordinance a constitutional document. It seems to me that the best way of testing whether the document is a constitutional document is to ask what will happen if next week or next month, the Hong Kong legislature decides to repeal the Ordinance as an ordinary piece of legislation. If that happens, there would be no UN Covenant as applied to Hong Kong and this would not offend against the Letters Patent. In my view there was and is no constitutional document in Hong Kong and certainly no constitutional document which had entrenched human rights under the UN Covenant.
74. The logic of, what the learned Vice President said about the Covenant becomes supreme and not the legislature, is as I understand it based on his reasoning that the Covenant is a constitutional document and because of the entrenchment of human rights by that constitutional document, the Covenant is supreme and higher than the legislature. It is to be noted that the word used in the Judgment was "legislature" and not "legislation" and I take the learned Vice President by the use of his word to refer to that body of government which makes laws for Hong Kong, namely the Legislative Council and not to the legislation in the sense of statutes and ordinances. If that is what was meant in the Judgment, then it must follow that legislature could not interfere with the Covenant which is supreme. But legislature can pass laws. Legislature in 1995 or 1996 can modify or diminish or abolish any one of the human rights under section 8 by either amending the Articles in section 8 or by new legislation which expressly state that new legislation could override the Ordinance or any part thereof. If there was really a constitutional document such as the Letters Patent entrenching human rights then of course this would be not permissible. In my judgment, in Hong Kong now as in September 1991 when the Judgment in Sin Yau-ming was delivered, the legislature is and was supreme and human rights under the UN Covenant are valid in Hong Kong only to the extent that the UN Covenant is and was applied to Hong Kong through the law of Hong Kong.
75. Having regard to the above analysis, it seems that the Ordinance is not a constitutional document and that there is no licence for what I might call the uncommon powers of interpretation given to the Hong Kong Bill of Rights by the Vice President, when he said at page 141 of his Judgment:-

"In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary cannons of constructions of statutes nor with the dicta of the common law inherent in our training. We must look, in our interpretation of the Hong Kong Bill, at the aims of the Covenant and give "full recognition and effect" to the statement which commences that Covenant. From this stems the entirely new jurisprudential approach to which I have already referred."

76. It can be seen from the Judgment of Sin Yau-ming that the other two members of the Court of Appeal did not share the same enthusiasm for the entirely new jurisprudential approach of Silke, V.P. Kempster, J.A. and Penlington, J.A. both gave separate different judgments but on Article 11(1) rather than expressly on discarding the common law construction rules. There is no judgment of the Court of Appeal binding on a lower court on the question of interpretation approach to the Articles in the Ordinance. This can be contrasted with the binding authority of the Court of Appeal in Sin Yau-ming on Article 11(1) of the Hong Kong Bill of Rights.
77. It is relevant also to point out that on the basis of the common assumption of the Court of Appeal that the Hong Kong Bill of Rights was a constitutional document which was apparently a matter never in issue between Mr. Daniel Fung Q.C., Counsel for the defence and Mr. I. G. Cross Q.C., Counsel for the Crown (see page 140 of the Judgment), any judgment given by the Court of Appeal based on such assumption, would not provide a binding authority. (see Baker v The Queen [1975] A.C. 774 and Barrs v Bethell [1982] Ch. 294)
78. Finally, I turn briefly to the authority of the Privy Council in Attorney General v Lee Kwong-kut [1993] 2 HKCLR 186. The authority of Sin Yau-ming was not called into question by the parties before the Board and per curiam Lord Woolf made reference to the general approach to constitutional document and remarked on the caution which should be exercised in considering authorities from other jurisdictions specially for example from the European Court of Human Rights. One can detect a reluctance to endorse the enthusiasm of Silke, V.P. for the entirely new jurisprudential approach or for his call of discarding the common law rules of interpretation. This reluctance is also reflected in the judgment of the Court of Appeal in Ex Parte Lee Kwok-hung [1993] 2 H.K.L.R. 51 where at page 56, Litton, J.A. (as he then was) said:-
"This does not mean, however, that the Court is, willy nilly, importing foreign jurisprudence into Hong Kong; ultimately, the court is construing the words in a Hong Kong statute and, in the task of interpretation giving it true effect ....
In my judgment, this is to look at the case through the wrong end of the telescope .... but this result is achieved by a proper construction of the Hong Kong Bill of Rights - not by a minute analysis of the Canadian Charter."
79. I have gone to some length on the question of the proper approach to the Articles in the Ordinance, because:-
(1) Considerable arguments on the correct approach had been presented to me and specially on the weighty authority of Sin Yau-ming;
(2) There is I find a substantial difference between the judicial restraint of the common law approach to interpretation and the continental judicial activist approach;
(3) It is an important question as to what extent the Court should give primacy to the common law statutory interpretation rules and to what extent if any, should the European human rights authorities be allowed to have a role in the interpretation of the Articles in the Ordinance, given the fact that the European Convention is a different instrument with its own very different prevailing situations. 
80. A helpful starting point for the consideration of the proper approach to the interpretation of Articles in the Ordinance is to ascertain the differences between the cautious common law approach and the judicial activist European Human Rights approach. Under the common law approach, the necessity for restraint in interpretation and the importance of concentrating on the text to be interpreted is exemplified by the consistent judgments of Sir Gerald Fitzmaurice sitting in the European Court of Human Rights. In the milestone case of Golder v United Kingdom [1975] 1 E.H.R.R. 525, his famous dissent consisted inter alia of the following:-
"There is a considerable difference between the case of 'Law-giver's law' edicted in the exercise of sovereign power, and Law based on convention, itself the outcome of a process of agreement, and limited to what had been agreed, or can properly be assumed to have been agreed. Far more interpretational restraint is requisite in the latter case, in which, accordingly, the convention should not be construed as providing for more than it contains, or than is necessarily to be inferred from what it contains .... and the word 'necessarily' is the decisive one." (page 562-3).
"Once wide interpretations of the kind now in question are adopted by a court without the clearest justification for them based solidly on the language of the text or on necessary inferences to be drawn from it, and not, as here, on a questionable interpretation of an enigmatic provision, considerations of consistency will thereafter make it difficult to refuse extensive interpretations in other contexts where good sense might dictate differently: freedom of action will have been impaired." (page 566)
81. The approach of Sir Gerald Fitzmaurice in the Colder case was the subject of the following comments by William Dale in a lecture given at the British Institute's Conference on Human Rights in 1975. This was said:-

"...under Article 6, there were three dissenting opinions in a court of 13 judges: they were those of Judge Verdoss of Austria, Judge Zekia of Cyprus and Sir Gerald Fitzmaunce of the United Kingdom. The last gave a long and closely argued opinion, based on the words of the text, and outstanding for the care taken to subject every point to analysis. As between the somewhat meagre judgment of the majority, and the deeply reasoned judgment of Sir Gerald, there can be no doubt which is the more satisfying to the mind of any English lawyer. Here was the true product of the common law system, as was the shorter opinion of the Cypriot judge." (Human Rights in the United Kingdom-International Standards by William Dale, International and Comparative Law Quarterly, XXV, 1976, page 292 at page 302)

82. The judicial activism promoted by the majority in the European Court of Human Rights can be seen repeatedly in the European Human Rights Reports and it might be identified by the ideology of asserting the power to develop the law as compared to the restraint of judges relying on their power of applying the law. Judicial activist devices used are applications of the effective principle, the notion of an "autonomous" concept and interpretation of the European Convention as a "living instrument'. It is to be noted that whenever word such as "autonomous" is used in connection with interpretation of human rights, it is generally a code word for judicial activism. (see Merrills on The development of international law by the European Court of Human Rights, at page 72 where he said: "Autonomous interpretation is a kind of judicial legislation and as such calls for a decision as to how far the Court will go.") The constant references to "autonomous meaning" in relation to interpretation of the Articles in the human rights instruments give me particular concern because the argument is that words in these instruments take on an independent life of their own and acquire special meaning not expressed or even necessarily implied by words in the instrument and more often than not with a meaning which is of a different kind from the plain meaning of the words and in extreme cases, with meaning under the "autonomous meaning" operation which is directly contrary to the plain meaning of the words.
83. (1)

At common law, there is a presumption against changes in the common law. In Maxwell on Interpretation of Statutes, 12 edition, at page 116 this is said:-

"Few principles of statutory interpretation are applied as frequently as the presumption against alterations in the common law. It is presumed that the legislature does not intend to make any change in the existing law beyond that which is expressly stated in, or follows by necessary implication from, the language of the statute in question. It is thought to be in the highest degree improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness."

(2) There is a further common law presumption which is the presumption against anomaly or absurdity and this presumption is an application of the canon of statutory construction enjoining an interpretation most agreeable to justice and reason. "An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available" Danckwerts, L.J. in Artemiou v Procopiou [1966] 1 Q.B. 878,888.
(3) The above presumptions further suggest that the common law principle of construction should not and could not be easily discarded in favour of the European legal system of "autonomous meaning" of interpretation.
84. From the judgments of A.G. v Lee Kwong-kut and Ex Parte Lee Kwok-hung, I can detect the common law asserting its good sense requiring that proper interpretation of the human rights Articles in the Hong Kong Bill of Rights to be subjected to the common law rules of interpretation with its concentration on the text of the statute rather than by resorting to the complex, uncertain and huge volumes on foreign jurisprudence importing in the guise of "autonomous meanings" foreign concepts which run contrary to the normal meaning of words under a Hong Kong statute.
85. Having regard to all the above considerations, it seems to me, in the absence of binding authority, that I should be guided in my approach to the interpretation of the Hong Kong Bill of Rights under the Ordinance, by the following considerations:-
(1) The role of the Court is to apply the law.
(2) The application of the law is by interpreting faithfully and with sound reasoning the statute in the form of the Ordinance.
(3) The Court should interpret this Ordinance in the same way as it interprets any other ordinance of Hong Kong, namely with, established rules of interpretation of the common law.
(4) The proper and primary judicial interpretation of the Ordinance is by concentrating on the text of the Ordinance and the language of the text.
(5) The UN Covenant is the product of an international agreement by some 100 countries which reached agreement by compromise and the judicial interpretation of the UN Covenant as applied to Hong Kong should be limited to "what had been agreed, or can properly be assumed to have been agreed" and there should be restraint in judicial interpretation so as construe the Articles in the Hong Kong Bill as providing for no more than it is necessarily to be inferred from what the text contains
(6) The Hong Kong legislature had seen fit to implement only those relevant parts of the UN Covenant and not the whole European Convention or even a small part of the European Convention and the same legislature had seen fit also not to make any reference in the Ordinance to the European Convention whether for interpretation or otherwise and that therefore a proper interpretation of the Ordinance ought not to be affected, as a general rule, by any consideration of the decisions made under the European Convention. To quote the great American judge, Learned Hand in his Bill of Rights:- 

"..... where the legislature made choices between ...... and ......, extreme judicial self-restraint was warranted ......."

(7) By the interpretation provision expressly set out in section 2(3) of the Ordinance, it is permissible for the Court in interpreting any Article of the Hong Kong Bill to have regard to the interpretation by other courts or judicial bodies on the identical Article in the UN Covenant.
(8) Having regard to the fact that other human rights instruments (such as European Convention, US Constitution, Canadian Charter) are not identical and are the product of very different circumstances and situations, only in very exceptional circumstances, would the Court be much assisted by looking at the foreign jurisprudence under those different foreign instruments.
(9) Even if the court should have resort to foreign jurisprudence, the Court would not be justified in importing foreign autonomous meaning interpretation so as to contradict or arrive at an interpretation substantially different, from the normal common law interpretation.
(10) In interpreting any Article of the Hong Kong Bill of Rights, the Court must not confuse what might be considered certain desirable human rights which the legislature did not intend to confer and did not actually confer onto the Ordinance in Hong Kong with those human rights which had been explicitly conferred on Hong Kong as reflected in the language of the particular Article of the Hong Kong Bill of Rights. An interpretation by resorting to what is desirable as being equivalent to what is in the statute would amount to judicial legislation under the guise of autonomous interpretation.

Section C - Right of Access to a Court & Scope of Article 10

86. I made reference earlier to the celebrated case of Golder v United Kingdom and an analysis of that case will assist my task:-
(1) in considering whether there is implied into the UN Covenant a right of access to a court;
(2) in deciding (with the question determined under (1) above) what is the scope of Article 10 of the Hong Kong Bill of Rights.
(3) in deciding (with the question determined under (2) above) whether Article 10 is restricted to pending court action or gives rise to a substantial right of access to a court to determine a right asserted by a citizen:
87. Golder's case decided in 1975 is concerned with the right of access to a court of law. Golder, a prisoner in the United Kingdom wished to see a lawyer for advice on bringing a civil action against a prison warden. He was not given access to a lawyer and the matter went eventually to the European Court of Human Rights and the decision turned on whether Article 6(1) of the European Convention was limited to guaranteeing the right to a fair trial in legal proceedings which were already pending, or whether in addition it secured a right of access to the courts for every person who wished to commence an action in order to have his civil rights and obligations determined. In the latter event, are there any implied limitations on the right of access or on the exercise of that right.
88. Article 6(1) of the European Convention on Human Rights is in the following terms:-

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

I will be pointing out later the differences between Article 6(1) of the European Convention and Article 10 of the Ordinance.
89. The European Court of Human Rights held in Golder that the rights of access to the court though not expressly stated in Article 6(1) constituted an element which is inherent in the right protected by Article 6(1). The majority of the Court held that the right of access to a court could be implied from Article 6(1) of the European Convention and said that although the right of access to a court was not expressly stated in Article 6(1) of the European Convention, it was inconceivable having regard to the preamble objective of 'rule of law' that Article 6(1) should have detailed procedural guarantees for civil cases without first having protected the right of access to a court and therefore the court must conclude that the right of access was an inherent element in Article 6(1).
90. The case for United Kingdom was well argued by a very powerful and distinguished team. In a tour de force judgment, reflecting perhaps the quality of the arguments presented to him, Sir Gerald Fitzmaurice set out his detailed reasoning for disagreeing that a right of access to the court can be implied from Article 6(1) of the European Convention. It would not be possible to do full justice to the power and reasoning process of Sir Gerald Fitzmaurice's judgment and for that it will be necessary to read the dissenting judgment again and again. For the purpose of my consideration of Golder, I will limit myself to a brief summary of the points made by Sir Gerald Fitzmaurice in his judgment.
(1) The majority proceeded on method of interpretation contrary to sound principle.
(2) The Article assumes the factual existence of proceedings and therefore the Article could only come into play if there are proceedings. The language of the Article only goes as far as assuming that there is a litigation which is sub judice. It does not say that there must be some proceeding whenever anyone wants to bring it. The actual text of Article 6(1) does not convey any substantive right of access independently of and additional to the procedural guarantees of a fair trial, which is clearly its primary object.
(3) Article 1 of the European Convention secures the rights defined in the Convention but nowhere in that Convention the alleged right of access to a court could be said to be defined, or even mentioned, indicated or specified. A definition must be expressed and cannot rest on implication.
(4) There is a need to define the ambiguous concept of the alleged right of access. Is the alleged right an absolute right or one conditioned and if so how.
(5) The parties to the European Convention could not be expected to implement what would be an important international obligation when it is not defined sufficiently to enable them to know exactly what it involves as it rests on an implication which is never particularised or spelt out.
(6) In dealing with inter-government agreements such as the European Convention, great interpretational restraint was required and it should be construed as providing for no more than what it is necessarily to be inferred from what it contained.
(7) The attitude of the majority of the Court that it is possible to draw an inference that such right could be included in the Articles is misconceived.
(8) It has not been shown that an inference or implication of such a right cannot operate or will not function without it.
(9) The line taken by the majority of the Court was based on factors external to Article 6(1) such as Vienna Convention on the Law of Treaties, the Statute of the Council of Europe, the principles of rule of law and general principles of the law recognised by civilised state.
(10) The fear of consequences if such rights was not read into the access was not justified.
(11) The King of France fallacy of proceeding on the basis that without a right of access, the safeguards of a fair trial would be rendered nugatory.
(12) The linking up of the word 'hearing' with the words 'competent tribunal' shows that the emphasis of Article 6(1) is on the character of the hearing rather than on an a priori and independent right to have a hearing.
(13) The contracting states of the European Convention were content to rely on the situation that many of the European countries afford a wide measure of access to the courts but no country wanted to commit themselves to the extent of an obligation which is of a far more rigorous and far-reaching kind than a country such as the United Kingdom Government had ever anticipated as being mandatory. This type of obligation cannot be internationally acceptable unless it is defined and particularised and its incidents and modalities specified.
(14) Article 6(1) is an essentially procedural provision concerned solely with the incidents and modalities of trial in court.
(15) The tenor of Article 6(1) is of a procedural provision concerned solely with the incidents and modalities of trial in court and any application of the ejusdem generis rule will result in only implying therefrom something of the same order or in the same category of concept and the alleged right of access to court is not procedural but substantive right of a fundamental character. It fringes the accepted canons of interpretation to imply one from the other.
(16) The rights enunciated in Article 6(1) are rights of the same order or category, namely rights relating to the timing, conduct, and course of a trial which so expressly stated call for the application of the expressio unius est exclusio alterius rule. In other words, Article 6(1) operates perfectly well as they are, whenever proceedings are in fact brought, without postulating any inherent right to bring them.
(17) Article 6(1) being concerned as much with criminal as well as with the civil field, yet the alleged right of access will be totally inapt in respect of the criminal field which strongly suggests that the Article is solely concerned with the proceedings themselves and not the right to bring them.
92. The above summary is merely a very primitive account of the numerous reasons relied on by Sir Gerald Fitzmaurice for his judgment that Article 6(1) of the European Convention does not give rise to a right of access to a court. Can the same conclusion be reached in respect of our Article 10 of the Ordinance. Before I proceed to examine this question, I should first ascertain precisely the differences in the text between Article 6(1) of the European Convention and Article 10 of the Ordinance. For ease of comparison I will set them out, one after the other, with shading done by me to show the difference.
"10. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and the public hearing by a competent, independent and impartial tribunals established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances, where publicity would prejudice the interests of justice, but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise require or the proceedings concern matrimonial disputes or the guardianship of children."
"6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly, but the press and the public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juvenile or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
93. The following are the major differences between the two Articles:-
(1) The opening sentence of Article 10 of the Hong Kong Bill of Rights contain the provisions of equality before the court and this provision is missing from Article 6(1) of the European Convention.
(2) There are 2 clear references to suit at law in Article 10 and these are not found in Article 6(1) of the European Convention.
(3) Article 10 contains the word competent in relation to tribunal but this is missing from Article 6(1).
(4) Article 10 makes exception for public judgment in respect of juvenile and matrimonial matters but this is absent in Article 6(1).
(5) Article 6(1) refers to civil rights and obligations whereas there is no such reference in Article 10.
(6) Article 6(1) requires a hearing within a reasonable time but there is no such requirement in Article 10.
(7) Article 6(1) makes an exception for public hearing (not public judgment) for the interest of juvenile but there is no such provision in Article 10.
94. Notwithstanding however the above differences between the Articles, it seems to me that most of the grounds advanced by Sir Gerald Fitzmaurice for rejecting the alleged right of access to a court also apply to Article 10 of the Ordinance. I refer in particular to sub-paragraphs (2), (4)-(6), (8), (10)-(17) of paragraph 91 above (sub-paragraphs (1), (3) (7) and (9) are of no application). The applicable points made by Sir Gerald are based on sound and logical reasoning and for me, there are far more convincing and persuasive than the judicially activist views of the majority of the Court in Golder. The conclusion I come to is that neither the Ordinance, nor the Hong Kong Bill of Rights nor Article 10 gives rise to any right of access to a court.
95. In the light of that conclusion, what is then its effect under my second question, on the scope of Article 10. For this exercise, it will be necessary to look somewhat further into the detailed provisions of Article 10 and the Ordinance. The Preamble of the Ordinance provides for the incorporation into the law of Hong Kong of the provision of the UN Covenant as applied to Hong Kong. That Preamble does nothing to assist me in determining what is the width of any particular right under any particular Article of the Ordinance, let alone whether any right which is not expressly stated in any of the Articles of the Ordinance exist. For the same reason section 2(3) of the Ordinance also does not help me in finding out the scope of Article 10 of the Ordinance. It should also be noted that in the Preamble to the Ordinance there was nothing like the preamble to the European Convention with reference to objective of "rule of law" which weighed so heavily in the decision of the European Court in the Golder's case.
96. The real meaning and scope of Article 10 must be obtained from the very words of Article 10 itself. The opening sentence of Article 10 in fact provides the best key to the meaning and scope of that Article. It says this:-

"All persons shall be equal before the courts and tribunals."

In the submission to me, it was said by Mr. Lee that this sentence has no meaning and in any event is the same as Article 22 on equality. Article 22 is in the following terms; -

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
It can be readily seen that whereas Article 22 relates to equality before the law and that the equal protection of the law (in terms of race, colour, sex, language, religion, origin and birth etc.) shall be without discrimination, the first sentence of Article 10 is aimed at equality before the courts, not the law. The scope of coverage is therefore very different. Article 10 deals with the question of what is the quality of the court which determines court proceedings already afoot. The qualities of the court, such as fair hearing, public hearing (with certain exceptions), competent tribunal, independent tribunal, impartial tribunal, tribunal established by Law, judgment in public (with certain exceptions) are all qualities which make such a court as described by Mr. Lee a "good" court, so that everyone before such a court is treated as equal, giving each an equal chance before the court. The best way of achieving the equality before the court set out in the first sentence of Article 10, is by means of the court having those qualities described in Article 10. So instead of that opening sentence having no meaning, in my judgment that sentence provides the key to an understanding of the subject matter of Article 10 and its scope.
97. What Article 10 is seeking to do is that in respect of already pending proceedings, the Article describes how to achieve equality before the court through these procedural guarantees. It is a procedural provision regulating court proceedings to ensure that it is a fair court giving equal treatment to everyone. Article 10 is therefore in my view, limited in its scope to pending lawsuits before the court. This conclusion coincides with my conclusion earlier on the narrow construction of the words "in a suit at law" that Article 10 is confined to court proceedings.
98. There is however an even more compelling reason for my interpretation of Article 10 and this is the double appearance of the words "in a suit at law". The second appearance of those words in relation to judgment rendered is to be contrasted with the lack of connection between judgment and lawsuit in Article 6(1). So whereas it might be permissible to transform the meaning of the first "in a suit at law" to mean not in a lawsuit, it will be impossible to also transform the meaning of the second "in a suit at law" (relating to judgment rendered) into the similar not in a lawsuit. In other words, by the double occurrence of "in suit at law" in Article 10 there is no room for argument even by the "autonomous interpretation" principle of European human rights jurisprudence, that Article 10 is not limited to determination in pending and existing proceedings.
99. The conclusion that Article 10 has the narrow scope of confining its sphere of reference to pending proceedings, leads inevitably to the third question as to whether Article 10 gives rise to a right to be given a court to determine a right which a citizen disputes against the Crown. Once however it is understood that:-
(a) under Article 10, there is no right of access to a court;
(b) under Article 10, the right in relation to a court is only in respect of action already commenced or pending;
it must inevitably follow that there is under Article 10, no right of access to a court or right to be given a court for the determination of a right not asserted through any pending action but in respect of which the local laws have not provided a right of action. Because if for the assertion of the right, the local laws do provide a right of action on the merits through the court, then ipso facto there cannot be the loss of a right. The complaint of the Applicant here, is that no such right of action on the merits under the court system exists and that therefore the Applicant must have the right to be given such a court to determine his otherwise non-justiciable asserted right. This is the real heart of the question posed under the Bill of Rights point, namely whether on its true construction, Article 10 gives rise to a substantive right of being given a court to determine a right asserted by the Applicant but which the Applicant cannot assert by any court proceedings on the merits under the present local laws of Hong Kong.
100. In my view, neither expressly nor by implication nor by the process of reasoning I have attempted under this Judgment, could I find any basis to say that there is in law under Article 10, the alleged human right of being given a court alleged by Mr. Lee. If there is no such right then clearly there can be no breach. In the circumstances, even if I am wrong on my simple construction of the words "suit at law", on the full consideration of Article 10 I am still of the view that Article 10 of the Ordinance is not engaged.

Section D-Determination,

Rights and Obligations in a suit at law,

& Independent and Impartial Court

101. On the basis that my conclusion:-
(a) in respect of my interpretation of "in a suit at law" might be wrong;
(b) in respect of my interpretation of the scope of Article 10 being limited to pending proceedings might be wrong,
it will then be necessary to consider the three questions under Article 10 which the Applicant had specifically raised to suggest that Article 10 was engaged and that there was a breach of such Article. The three points are:-
(1) That there was determination;
(2) That the determination was of the Applicant's right in a suit at law;
(3) That such determination was not by an independent and impartial court.
I will consider in turn each of those issues raised.

DETERMINATION

102. It is not in dispute between the parties and I accept that for the purpose of Article 10, the determination must be a final and decisive determination. The question under this issue is whether the 29th April 1994 Meeting Refusal of the Board was a final and decisive determination. The answer to this must first be ascertained from the scheme of the Planning Ordinance.
103. The Preamble of the Planning Ordinance provides that the statute is to promote the health, safety, convenience and general welfare of the community by making provision for the systematic preparation and approval of plans. The function of the Board under section 3 of the Planning Ordinance is limited to the preparation of draft plan as the Governor may direct and I emphasize the word draft. The public exhibition of the draft plan (section 5) and the consideration of objection to the draft plan (section 6) and the possible amendment to the draft plan by the Board all lead eventually, under the scheme of the Planning Ordinance, to the whole object of the Ordinance, namely the final approval of the draft plan by the Governor in Council and turning it into an approved plan. Section 8 provides for the submission of the draft plan, with or without amendment, to the Governor in Council for approval. The Governor in Council upon submission of the draft plan, may under section 9, approve it, or refuse to approve it, or refer it to the Board for further consideration and amendment. The ultimate result sought by everyone, is the final product in the form of the approved plan, with what it contains and I see this as the key document and the final decisive document. The significance of the approved plan can be readily seen from the fact that it is required to be printed, exhibited to the public and notified in the Gazette. It is relevant to note that the printing requirement for approved plan is unique to the approved plan and is not shared by the draft plan under section 5.
104. In my view the final determination of any right of the Applicant in relation to planning is made by the Governor in Council under section 9 and not by any decision of the Board under section 6. In fact as can be seen plainly from the whole elaborate scheme of the Planning Ordinance, because of the importance of planning for the general welfare of Hong Kong, the beginning and the end of the planning process are both controlled firmly in the ultimate policy decision maker of Hong Kong, the Governor and the Governor in Council. It is the Governor who directs draft plan to be prepared and it is the Governor in Council who finally decides that the draft plan prepared at his direction should be approved or not or amended. His is the final and decisive decision and decisiveness and control of the decision is such that under section 12 even in respect of approved plan, the Governor in Council may still revoke any approved plan or refer any approved plan to the Board for replacement or amendment. In my view, the intention of the legislature is clear as to who is the ultimate decision maker and determiner of planning in Hong Kong and when that intention is so clearly manifested by the legislature in the Planning Ordinance, then it seems to me that there is really no room for argument that what the Board did was final and decisive determination. The Refusal of the Board to amend the Draft Plan is no more than part of the long process of policy making consultation and gathering together of all the relevant considerations to enable the final policy determination to be made by the Governor in Council. Accordingly, I hold that Article 10 did not apply to the Refusal of the Board.
105. The above is my principal ground for holding that there was no determination under Article 10 but there is another consideration which seems to me also very relevant and calls for some emphasis and that is the nature of the act complained about. It will be seen from my earlier factual account that the Refusal stemmed from the Meeting of the Board. That was one of the regular fortnightly meetings of the Board. It was not a special tribunal convened to make final and legal determination. The Board was not staffed by any lawyer and no lawyer was representing the Board or even the Planning Department which Mr. Lee characterised as the other party. Of course the Applicant was legally represented but that was only to add to its fire power and not because of the judicial or quasi judicial nature of the meeting. In the Ordinance it is referred to as a meeting and it is in fact an informal meeting of the Board and not a hearing. It is also a Board consisting of a large number of professionals who make their respective contribution to the consideration process by the input of their experience and expertise. The very large size of the Board again suggest that the Board was not acting in any judicial capacity. The whole process does not suggest in any way any judicial or quasi-judicial procedure and the Board is not required to give any reason for its decision. Nor is the decision required to be Gazetted and this is to be contrasted with the necessity to Gazette the Draft Plan and most importantly, the approval of the Draft Plan by the Governor in Council under section 9(5). It is difficult to see how a decision made at an informal meeting not required to be supported by reasons or to be Gazetted and which is then submitted to the Governor in Council where the really important step is taken, can be said to be a final and decisive determination. In the circumstances, I find that the decision of the Board not to amend the Draft Plan was not a determination of the Applicant's right within the meaning of Article 10.
106. This is strictly speaking enough to dispose of the issue on determination. But again out of deference to the long arguments addressed to me under this issue and in the event that I might be held to be in error, I will give brief consideration to the various points raised before me under this issue of determination.
107. One of the controversial questions raised is whether the whole process of planning decision could be said to be subsidiary legislation. The argument is very complex and as I understand it, amounts to this:-
(1) Leonard J. decided in Singway Co. Ltd. v AG [1974] HKLR 275 that in the context of section 16(1)(d) of the Buildings Ordinance, the word "may" used there is mandatory and means "must";
(2) Following Singway, if a proposed building plan contravenes a draft town plan, the Building Authority must reject the proposed building plan;
(3) Thus a draft town plan made under the Planning Ordinance becomes not just standards for guidance for public officers but the equivalent of a provision in the Buildings Ordinance and thus becomes subsidiary legislation;
(4) Leonard, J. decision in Singway was doubted by the Court of Appeal in Quebostock Ltd. v Building Authority [1986] HKLR 647 and by Mayo, J. (as he then was) in The Queen v Director of Buildings and Land, ex parte Super Mate Ltd. but was followed by Rhind, J. in Auburntown Ltd. v Town Planning Board [1994] 2 HKLR 272 (see page 287 and 289) who however came to that conclusion mainly because of his reading of the provisions of the Planning Ordinance.
108. In the course of his submission before me, a concession was made by Mr. Cooney that having regard to the legislative history of the Buildings Ordinance, the Crown could not support Singway in so far as it decided that "may" in the Buildings Ordinance means "shall". Although that removes one of the contentions between the parties the point of the Refusal being legislative in nature was still very much alive.
109. Without overburdening further this Judgment, I will state very shortly my decision on this controversial point. In my view, it is incorrect to view the decision made by the Board under section 6 as legislative in nature or subsidiary legislation. I say this for the following reasons:-
(1) With the concession made by Mr. Cooney that "may" does not mean "must" in the Buildings Ordinance and that Singway was wrongly decided, one of the main planks of holding that the draft town plan is a legislative document with the character of subsidiary legislation is gone and this merely reflects the doubts shared by the Court of Appeal in Quebostock and by the Super Mate decision.
(2) I do not share the view of Rhind, J. that the exercise of section 9 power by the Governor in Council is the making of subsidiary legislation. It seems to me that both the lack of tabling before the Legislative Council and the lack of authority cited to me on implied power to make subsidiary legislation render untenable the stance of Rhind, J. that it was subsidiary legislation.
(3) I have grave doubt that the legislature intended the planning exercise to be subsidiary legislation. In my view a fair reading of the scheme of the Planning Ordinance indicates to me a clear intention that the planning is intended to be high level policy making by the Government and intended not subject to control or interference by the legislature and in the circumstances, I do not see how the plan making and final decision on plan making either under section 9 or the temporary decision under section 6 could be labelled as legislative or even subsidiary legislative.
In the light of this conclusion I have come to, it will not therefore be necessary for me to consider the Canadian judgments of Wiswell v Metropolitan Corporation of Greater Winnipeg (1965) 51 DLR (2d) 754 and Homex Realty & Development Co Ltd v Village of Wyoming (1980) 116 DLR (3d) 1. 
110. A large number of European Human Rights Reports cases were cited to me on the issue of determination but they all really turn on their individual facts and I have not found any convincing unifying theme or principle stated therein on determination which can assist me in reaching my decision. As I have said earlier, it is not by studying minutely the foreign reports turning on the special facts of individual cases that the Court can arrive at the meaning of Article 10 and its applicability to a particular case. Ultirnately at the end of the day, the task of the court is best discharged by construing the word and thereby arriving at the proper meaning of determination and then apply it to the facts of the case.
111. A question which does not require me here to resolve specifically (but by implication of course I have already resolved it against Mr. Lee) but which lies at the heart of the issue of determination and on what is the scope of Article 10, is whether that Article is meant to cover a three parties situation or a two parties situation. Mr. Lee contends for two and Mr. Cooney says three. There can be no doubt that where you have Party A in dispute against Party B and the matter has to be decided by Party C, the decision of Party C is determination of the dispute and on my interpretation of the scope and purpose of Article 10, that Party C is the Court and can only be the Court and only for a situation where Party A and Party B are already engaged in court proceedings and when the guarantee of Article 10 is merely to ensure that the quality of Party C as a court is up to the Article 10 qualities set out therein. But what happens when you have Party A objecting to a decision of Party B which happens everyday. Can it be said that Party B has by that decision, made a determination. Without the Bill of Rights Ordinance, the matter is simple. It is not a determination and any right of Party A for redress of such decision was dependent on whether the decision of Party B can be considered wrongful under our domestic law. If it is, then Party A can take the necessary court proceedings against Party B and if Party B happens to be a Government body then that court proceedings would be under our domestic law by way of Judicial Review. But Mr. Lee's case (this is the radical and revolutionary aspect of the true thrust of the Ordinance as argued by Mr. Lee) is that Article 10 gives him for the first time under the law of Hong Kong, a new right and entitlement to have and be given a Party C in the form of a good court to determine every decision of Party B. As I understand him, the decision of Party B (of course a Government body) is inconsistent with Article 10 because it is a determination of Party A's right and therefore even in a two party situation; there is a breach of Article 10. As can be seen this new right if held to be correct in law, cuts into the heart of the whole administration arrangement of Hong Kong. Whether one considers it under the heading of determination or scope of Article 10 eventually, it is always the same core question.

RIGHTS

112. Under this issue of right of the Applicant, the first question I have to resolve is what is the Applicant's right, the subject of the determination which is caught by Article 10. I can very quickly rule out a number of rights: 
(1) Ownership right - the ownership had not been taken away by the Refusal to rezone;
(2) Occupation right - the right of occupation had not been affected in any way;
(3) Development right - there is no right of development in Hong Kong. All owners of land in Hong Kong enjoy no right of development and are subject to the lease conditions together with the laws of Hong Kong for development.
(4) Land usage right - from the time when the Draft Plan was published to the time when the Board refused to amend the Draft Plans, the usage right of the Applicant had not changed. It was still restricted to agriculture and storage because of the Crown lease conditions and the Waiver. The usage under Column 2 of the Draft Plan does not even come into play because the Applicant under the Crown lease has very restricted right of usage and so the Draft Plan and the Refusal to Rezone has not affected in any way the land usage right of the Applicant.
113. I will now elaborate on land usage. I agree with Mr. Cooney when he said that there is really no substance in the often repeated assertion of Mr. Lee that the zoning under the Draft Plan had affected his Applicant's right of usage of the Land. It must be borne in mind that because the usage of the Land is restricted in the Crown Lease to agriculture and the fact that any modification thereof is a contractual matter, the Applicant has no right to any usage of the Land except for agriculture and storage. So far as usage under Column 2 of the Draft Plan is concerned, the Refusal to amend the Draft Plan had made no difference to the Applicant, because apart from agriculture and storage, he had no right of usage under Column 2 even with permission and it is therefore a misnomer to talk about the Applicant's right because he had none. The much talked about development right is really not a right but a wish or intention of the Applicant since under the Crown lease, no right is given whatsoever to the Applicant to build or develop. This is a major difference from many of the European Human Rights cases where the situations prevailing in Europe are very different from that in Hong Kong.
114. Mr. Lee complained that the Draft Plan interfered with the right of the Applicant in respect of resumption. The way he put it is that as result of the Rehabitation Scheme and the Draft Plan, the Land of the Applicant will be resumed by the Government and therefore this has interfered with the Applicant's right. I agree with Mr. Cooney that again the Applicant has confused resumption with land usage under the Draft Plan. The Draft Plan is only concerned with land usage and does not touch in any way upon land ownership or land resumption. It is not contended by the Applicant that it has a right not to have its Land resumed and that the Draft Plan has interfered with that right. This assertion cannot be made because in the context of Hong Kong no landowner can say that he has a right that his land cannot be resumed. Resumption is subject to law and every one is subject to a possible resumption. The Draft Plan did not provide for resumption or give rise to any power of resumption and certainly the Plan did not recommend resumption. It will be remembered that in the 1993 Objection Statement and the Further Submissions there was suggestion by the Applicant that the Board should take steps to ensure that there was no resumption of the Land. What was proposed was in fact outside the power of the Board and I cannot see how the possibility of resumption can be said in any way to be an interference with the right of the Applicant.
115. Ultimately, the really significant question to ask under this issue is whether the Applicant has any zoning right. Zoning is part of the planning process of government and no right of Zoning is conferred on the Applicant or anyone else in Hong Kong. There is no right of the Applicant to be zoned in any particular way or to be zoned out in a particular way. It is zoning which is the real subject matter of the Board Meeting when it refused to amend the Draft Plan. The question is therefore whether that Refusal in anyway interfered with any zoning right of the Applicant. The answer must be no, as there is no planning or zoning right which the Applicant could point to.
116. The really heavy argument of Mr. Lee under this issue is that right in a suit at law does not mean right under a pending lawsuit but means civil right used in the wider continental sense. He sought to give a different meaning to right in a suit at law by referring me to the principle of "autonomous meaning" under the European human rights law, with the result that notwithstanding the words used in Article 10 have their plain meaning under the normal common law rules of interpretation, by the operation of the "autonomous meaning" principle and by reference to European human rights literature, those words are given totally different meaning, even to the extent of bearing meaning quite contrary to the usual meaning of the words.
117. This is the process by which the whole meaning of right in a suit at law was changed by Mr. Lee:-
(1) Article 10 of the Ordinance was shown to be identical to and derived from Article 14(1) of the UN Covenant (this is not objectionable);
(2) Article 14(1) of the UN Covenant shows that the French text as being "droit et obligations de caractere civil" (this is not a necessary exercise);
(3) These words in French under Article 14(1) are then shown to be the same as the words in French under Article 6(1) of the European convention (this exercise is objectionable);
(4) The French expression in Article 6(1) was originally (as can be seen from the Travaux preparatoires) translated to the English version of "rights and obligations in a suit at law" but at the last minute the English translation of Article 6(1) was changed to the preferred words of "civil rights and obligations" (this process is objectionable);
(5) Therefore although the English words used in the two instruments are different they are equivalent (this process is objectionable);
(6) That the English expression of "civil rights and obligations" under Article 6(1) of the European Convention can be shown to be the subject of much judicial consideration by the European Court of Human Rights and foreign learning of that jurisprudence including the concept of "autonomous meaning" to be given to that expression (see e.g. van Dijk & Van Hoof on Theory and Practice of the European Convention on Human Rights, 2nd edition page 297; Paul Sieghart on the International Law of Human Rights page 276-7; Alan Boyle on Administrative Justice, Judicial Review and the Right to a Fair Hearing under the European Convention on Human Rights [1984] Public Law 89 at page 91) (this process is objectionable);
(7) In the European Court of Human Rights, that expression in Article 6(1) is shown to be not limited to any civil right asserted under any civil court proceedings but any civil right of a wide scope which might not even be otherwise assertible in any civil court; (this process is objectionable)
(8) Therefore the Hong Kong Article 10 can be shown also to mean any civil right of a wide scope which may not be otherwise assertible in any civil court in Hong Kong. (this process is objectionable)
118. In my view it is not a legitimate exercise of interpretation to transform the meaning of the words in a Hong Kong statute (by this complex series of operations) to an autonomous (i.e. totally different and independent) meaning and by that process to create a right which otherwise did not exist in Hong Kong under Hong Kong law.
119. My real objection to the path which Mr. Lee asked me to travel is that at every stage of the path, the common law principles road-signs disappear. I will take the most common but important example. The words "right in a suit at law" have certain common law meaning and significance. By the importation of the foreign law, these words (ignoring specially the very important word of "in" which qualifies what sort of right) are transformed into "civil right", which is given a very special meaning under the evolving European law and this brings me to a more fundamental reservation I have to the whole process.
120. The European Court of Human Rights is a formal and formidable body which is presided at each sitting by over 10 European Judges, each of whom is drawn from the member countries including of course one from the country the subject of the alleged breach. When a case is argued before the European Court by the methods of interpretation developed by the European Court of Human Rights (see for example Chapter 4 of Merrills, J.G. on The development of international law by European Court of Human Rights, 1993), lawyers and judges with their European jurisprudential background (specially the system of continental law) and with the European situations, give meaning and reality to the cases and decisions which are later reported in the European Human Rights Reports. In Hong Kong, with our common law tradition and our special eastern situations, we are not equipped to properly understand, appreciate, analyze, apply or develop this foreign jurisprudence. Prudent policy reasons would suggest that it is:-
(a) unwise to surrender to this totally different jurisprudence;
(b) dangerous to leave the development of our own law in the hands of a foreign court or legal system and that we will be wise to firmly hold on to (a) above.
In my view therefore, unless something overwhelming and compelling can be shown in any particular European authority, the Hong Kong Court should very wisely decline to be seduced by the seemingly inexhaustible literature from the European Court of Human Rights.
121. If this view of mine is accepted as correct in law, this is not necessarily disaster for Hong Kong. It is open by the legislative process, if it is thought fit by the legislature and the Government of Hong Kong, to change the law of Hong Kong and to amend the Ordinance in such a way as to bring so much or so little of the European Human Rights jurisprudence directly into Hong Kong as the legislature thought appropriate or justified. But as I see it my task and the task of all Judges in Hong Kong is to interpret this Ordinance by the laws of Hong Kong and in doing this I should stop at the door of the foreign court and its complex jurisprudence unless I am compelled by clear intention of the Hong Kong legislature as reflected in the legislation of Hong Kong. As can be appreciated, the danger of the route that Mr. Lee asked me to travel is that foreign jurisprudence is not limited to that of Europe and why should the Court stop at Strasbourg and not travel onto South America, Africa or China.
122. My conclusion therefore is that I should decline to be seduced by the complex foreign jurisprudence of the European Court of Human Rights and that relying on the general common law principles, the only conclusion I can clearly come to must be that there was no right of the Applicant which the Board had finally and decisively determined by its Refusal to rezone.
123. Out of courtesy to the arguments presented to me and in order to see if there is any principle overwhelmingly compelling in the European jurisprudence, I will attempt to briefly comment on some of the European authorities cited to me and I hope that learned Counsel for the Applicant would not consider it discourteous if I do not devote as many pages to this review as they might consider justified by their labour of love lavished on the preparation and presentation of such materials.
124. It is argued that under the European Human Rights law if there is dispute over a right which could on arguable grounds be said to be recognised under domestic law then such right would be sufficient for civil right under Article 6(1) of the European Convention. Sharby v Sweeden (1990) 13 EHRR 90 at para 27. The question I then ask is what is the right which can be said to be arguably recognised under domestic law which had been determined by the Board. As I said earlier, the real question of whether the Applicant had any zoning right must be answered in the negative. I do not therefore see how the European human rights authorities on this point will assist the Applicant.
125. Reference was also made to the authority of Mats Jacobsson v Sweden (1990) 13 EHRR 79 at para 32 to show that the civil right under Article 6(1) was affected even in respect of right which was never used or exercised. What happened in that case was that the owner who had a right to build a second house found his right removed or interfered with by the decision of the Municipal Council. The owner objected to that decision. The European Court held that it was not material that the land owner had not in fact exercised that second house right. Reference was made by the Applicant to his right to use his Land for agriculture and analogy was sought to be drawn with the Jacobsson case. I must confess I have some difficulty in following the point advanced. It is and had never been the case of the Applicant that it wished to use the Land for agricultural use. I do not think it would be very profitable these days in Kwun Tong to be a farmer. There was simply no question ever put to the Board at any time on the right to agricultural use. It was not the Applicant's case at the Meeting or prior to it that the Applicant wished the Land to be zoned back to Green belt for agricultural use. If there was no dispute as to right of agricultural use, there could be no determination of right of agricultural use of which the Applicant could complain about and particularly complained as to procedural non-conformity with Article 10 fair court procedure.
126. Reference was also made to Zander v Sweden (1993), Judgment of the European Court of Human Rights of 25 Nov 1993, Series A. Vol. 279-B relating to the value of the Land affected by the Board decision. Of course this Court will recognised that the value of the Land might have been affected by the appropriate zoning but that does not mean that the Applicant has a right to a particular value of the Land which was affected by a determination of the Board. Decisions are made everyday which might affect value of a land but these are not determination of a right. It is not any right which can be affected that is the subject of protection under Article 10, it is only that right which is determined that is covered. Ultimately, it always goes back to the same question, as to what is alleged to be determined and is what was determined the subject matter of a domestic right of the Applicant.
127. In the course of submissions to me on the question of right, it is said that the Court like the European Court, should take a broad and overall view in considering whether civil rights had been interfered with and that it is not necessary to lay down any principle or definition of what is civil right and that the European Court has consistently refrained from so doing and content to decide on case by case basis. This really leads me again to the value of studying the European reports. In trying to read the cases cited to me under Article 6(1) relating to civil right including the following:-
(1) Mats Jacobsson v Sweden (1990) 13 EHRR 79;
(2) Sharby v Sweden (1990) 13 EHRR 90;
(3) Allan Jacobsson v Sweden (1989) 12 EHRR 56
(4) Oerlemans v The Netherlands (1991) 15 EHRR 561;
(5) Byran v The United Kingdom Decision of the European Commission of Human Rights of 28 June 1994, Application No 19178/91;
(6) Zander v Sweden Judgment of the European Court of Human Rights of 25 Nov 1993, Series A, vol 279-B
(7) Tre Traklörer Aktiebolag v Sweden (1989) 13 EHRR 309;
(8) Sporrong and Lönnroth v Sweden (1983) 5 EHRR 35,
I find no convincing proposition of law or precise principle developed in these reports which will enable a court to apply them and which normally forms the basis of our common law jurisprudence. Having consulted these reports, I do not find anything in them which compels me to come to a different conclusion on the issue of right in a suit at law under Article 10. In fact having studied them, I am even more convinced that the path for the court of Hong Kong rests in applying our own law on the Ordinance rather than to allow this complex foreign jurisprudence into our system indiscriminately to the extent that we are no longer applying the UN Covenant as applied to Hong Kong by the Ordinance but we are adopting as our law, the European Convention as applied by the European Court of Human Rights. In this respect, Mr. Lee had been very frank and forthright and he said that once we adopt in Hong Kong the UN Covenant, we also import into Hong Kong all the foreign case law, meaning European human rights case law. This is what he said has happened. It is for the Court to decide if that is the law of Hong Kong.

INDEPENDENT AND IMPARTIAL TRIBUNAL

128. This issue really turns on whether on the proper construction of Article 10 it can be shown that the statutory scheme for the Board under the Planning Ordinance could be said to be inconsistent with Article 10.
129. Section 2(1) and (2) of the Planning Ordinance provides that:-
" (1) The Governor may appoint a Town Planning Board consisting of such official and unofficial members as he may nominate, and may appoint any member of the Board, either ex officio or personally, as chairman or vice-chairman and any public officer as secretary thereof.
(2) 5. members of the Board, one of whom must be the chairman or vice-chairman, shall form a quorum at any meeting of the Board."
130. That statutory scheme gives to the Governor the flexibility to appoint such members and as many members as he deemed necessary to the Board. There was no statutory requirement for the Governor to appoint only Government members or to appoint Government member as Chairman or Vice Chairman. The only restriction on the Governor's power of appointment is that he must appoint a public officer as a secretary. In my view, as the secretary is not a member of the Board or carries any vote, the statutory requirement of the secretary being a public officer does not render the statutory appointment scheme inconsistent with Article 10. Having regard to the general non-restrictive right to appoint any suitable person to the Board, it is my judgment that the appointment provisions of the Planning Ordinance is not inconsistent with Article 10.
131. As was pointed out by Litton, V.P. in the unreported judgment of Otis Elevator Co. (HK) Ltd. v Director of Electrical and Mechanical Services (Civil Appeal No. 184 of 1994) "we are concerned solely with the question of institutionalised fairness or unfairness: not with the question of whether, operationally, there has been some breach of the rules of natural justice." The question before me on Article 10 under this issue is not operationally, it could be shown that the Board which refused to amend the Draft Plan was not independent and not impartial but whether there is anything in the Planning Ordinance which is unfair in such a way as to fall foul of Article 10.
132. For me the only question which is of real concern is whether having regard to the statutory scheme of the Board taking on a number of functions:-
(1) under section 4, for preparation of the draft Plan,
(2) under section 5, for the exhibition of the Draft Plan and
(3) under section 6(3), for the preliminary consideration to the objection,
could the Board be considered as independent and impartial for the purpose of the meeting under section 6(6) to consider the written statement of objection and to hear the objector. In the Otis judgment there is a reference to the decision of Notier v The Netherlands [1993] 17 EHRR 273 which was not cited to me in argument by the parties. The reference to better appreciation of the organisation of their own system in the passage in Notier quoted in the Otis Judgment, suggests that there can be good policy grounds for the same body to deal with both the preparation of the draft plan, the exhibition of the draft plan, the preliminary consideration of the draft plan and the intermediate consideration of the draft plan before submitting to the highest and final person for decisive decision making. In this connection, I believe the experience and expertise and the large membership of the Board strongly suggest that the statutory scheme is aimed at balancing efficiency, maturity, quality and fairness to enable the most appropriate plan to emerge from the end of the long planning process under the Planning Ordinance. One can envisage a statutory mandatory separation of the preliminary consideration by one board from the section 6(6) consideration by another board to ensure that there would be greater independence and impartiality but the price to pay for this would either be a very unwieldy structure or much smaller composition of each board or far less balanced expertise and experience in each board. It seems to me having regard to the numerous factors which must be taken into account for any decision making as to what should be statutory scheme for the section 6(6) meeting consideration, the Board as structured under the Planning Ordinance could not in any way be said to be such as to be inconsistent with Article 10 so as to require section 6(6) to be considered repealed. Accordingly on this last issue. I also find in favour of the Respondent.
133. For the sake of completeness (though strictly unnecessary), I should also say that on the evidence before me, I really cannot find any actual bias by the Board in anyway. It is true that in some ways it could be said that the Board was reviewing its own previous decision but that is what the statute demands. In discharging their statutory duties, the members of the Board were obviously trying to do the best they could. Having regard to the large size of the Board and that the outside members dominate in numbers and most probably also in stature, I really cannot see how it can be said that this Board was not independent or not impartial. Mr. Lee seems to suggest that just because there are Government members on the Board, ipso facto the Board is not independent or impartial. I am afraid I do not quite see it that way and much will depend on the circumstances of each case. What must not be overlooked is that in respect of planning matters, so many disciplines come into play. A glance at the list of Government members at the Meeting will reveal that these are representatives. from the different Government departments each of which was to make a positive contribution to not only the consideration under section 6(3) and (6) but also under all the relevant provisions of the Planning Ordinance. In making a Town Planning board better by giving it members from different disciplines including those from the Government departments, the Board does not become less independent or impartial. What is however unsatisfactory is that the Applicant has chosen to raise this issue albeit under the Bill of Rights point when no such question was ever raised previously. It would be seen that the Board, with the membership known to the Applicant, had been dealing with the Applicant through Townland from 1989 onwards. From July 1993 Townland and the Board were in constant contact and no complaint whatsoever was made as to the independence or impartiality of the Board. The matter went from 1993 Objection Statement to preliminary consideration and from there to adjournments, the Further Submissions, the Letter and eventually the Meeting, when the Applicant was represented not just by Townland, but also by Solicitor and Counsel. No complaint whatsoever as to independence or impartiality of the Board was made at the Meeting or before. It seems to me that in these circumstances it is not right for the Applicant to suggest a breach of Article 10 specially when there is no evidence whatsoever that there was actual bias.

CONCLUSION

134. To summarise, I find that:-
(1) Under the Wednesbury Point, the Applicant had failed to show a case of perversity or Wednesbury Unreasonableness (see paragraphs 44, 48 on Complaint 1, paragraph 49 on Complaint 2 and paragraph 50 on Complaint 3);
(2) Under the Bill of Rights Points:-
Section A On the true interpretation of the words "in a suit at law", Article 10 was not engaged because the Board's Refusal was not in a lawsuit (see paragraph 59-60);
Section B A judicial self-restraint approach should be adopted to the interpretation of the Bill of Rights Ordinance and the Articles therein and such interpretation should be on the basis of the common law rules of interpretation rather than by importing foreign jurisprudence (paragraph 85);
Section C There is no right of access to a court and the scope of Article 10 is restricted to pending court proceedings (paragraphs 94, 97, 98, 100);
Section D Determination
There was no determination by the Board within the meaning of Article 10. The Governor in Council has the final say on plans in Hong Kong. (paragraphs 104, 105)
Right
The Applicant has no right within the meaning of Article 10 which was determined by the Board. (paragraphs 115, 122)
Independent and Impartial Tribunal
The statutory scheme under the Planning Ordinance did not reveal any appointment system which is inconsistent with Article 10. (paragraphs 130, 132).
135. In the circumstances, I am satisfied that the Applicant has failed to establish any of the Grounds in the Re-Amended Notice of Application. Accordingly, the Application must be dismissed. I will hear the parties on costs.

William Waung
Judge of the High Court

Representation:

Mr. Martin Lee, Q.C., Mr. Wong Hin Lee and Mr. Johannes Chan instructed by Messrs. C.T. Chan & Co. for the Applicant

Mr. N.J. Cooney of the Attorney General's Chambers for the Respondent.

Cites 3 cases

Cases cited in this judgment

Singway Co Ltd v. Attorney General
[1974] HKLR 275
High Court CFI
Auburntown Ltd. v. Town Planning Board
[1994] 2 HKLR 272
High Court CFI18 Apr 1994
Re Tai Tung Industrial Equipment Ltd.
HCMP 2262/1994
High Court CFI07 Dec 1994