Lo Siu Lan and Another v. Hong Kong Housing Authority

HCAL 154/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.154 OF 2004

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Before : Hon Hartmann J in Court

Dates of Hearing : 13 - 14 December 2004

Date of Handing Down Reasons for Judgment : 15 December 2004

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REASONS FOR JUDGMENT

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Introduction

1.In or about July 2003, facing a large deficit in its operating costs, the respondent, the Authority, resolved to raise capital by disposing of part of the commercial infrastructure contained within the majority of its housing estates.  Specifically, this infrastructure consisted of retail outlets (shops) and car parking spaces.

2.The Authority determined to divest itself of these physical facilities by selling them to an incorporated real estate investment trust which would be floated on the stock exchange to enable the public to invest in units of the trust.  The public offering of units — in what has become known as the Link Real Estate Investment Trust — was opened in early December of this year.  The brochure giving details of this public offering set out an expected timetable in terms of which unit certificates in respect of successful applications would be dispatched today; that is, on Wednesday, 15 December, while dealing in the units would commence tomorrow; that is, on 16 December.

3.A few days ago, however, the applicants instituted proceedings seeking leave to apply for a judicial review of the Authority’s decision to sell its retail and car parking facilities.  The applicants, elderly folk who must rely on social assistance, are both tenants in estates (which contain shops and car parking) run by the Authority.  The applicants sought leave to apply for judicial review on the basis that the Authority’s decision to sell its retail and car parking facilities in their estates was ultra vires.

4.The applicants’ concern was that if the retail outlets and carparks were not managed by the Authority in accordance with the objects of the Housing Ordinance, Cap.283 (‘the Ordinance’) but were instead managed by a third party which had no obligations under the Ordinance and was driven by commercial interests only, they would inevitably become estranged from their surroundings within the estates where they live : estranged financially and socially.  They feared that financially there would be an inevitable rise in rents and therefore in the price of goods.  They feared that socially the welfare services presently situated in the estates to assist the disadvantaged would themselves become the victims of commercial imperatives and would have to move away.

5.At the outset it is important to stress that the retail outlets and carparks to be sold by the Authority (contained in 180 of its estates) are already built and therefore form an integral part of the physical fabric of those estates.  They are to be sold as retail outlets and carparks so that the end purchaser, the Link Real Estate Investment Trust, will be able to manage them and obtain income from them.  No suggestion has been made that, despite planning restrictions and the like, it is nevertheless planned to transform these facilities into something entirely different; for example, that they are to be demolished and the land used for some new and separate purpose.  In short, it has been accepted that the facilities will remain.  As I have indicated earlier, the complaint is that, in privatising these facilities, the Authority will lose control over them and that the new owners will be driven solely by commercial interests, interests that may be at odds with the purpose of the Ordinance; namely, the provision of these facilities for people like the applicants, the poor and the disadvantaged.

6.It is not, of course, for this court to look to the wisdom of the Authority’s decision to sell its retail outlet and carpark facilities.  Nor have I been asked in any way to consider whether the Authority has agreed a fair price for its assets.  As I have said, the single challenge made goes to the statutory power of the Authority to dispose of the facilities in the manner that it proposes.  This, it has been agreed, is a pure matter of interpretation of the Ordinance.

7.Before turning of this issue, however, there are a number of what I may describe as ‘preliminary matters’ which must be dealt with.

Leave to apply for judicial review

8.With the flotation of the Link Real Estate Investment Trust being so imminent, there was a pressing need, at least on the part of the Authority, to attempt to resolve the applicants’ challenge without having to postpone the flotation or cause it to be abandoned.  Mr Daniel Fung SC, leading counsel for the Authority, emphasised the very substantial financial loss that the Authority would suffer if it had to abandon the flotation and the unfortunate repercussions any postponement or abandonment would have on Hong Kong’s investing community.

9.I accepted that there was a real public interest in seeking finality in this matter at the earliest opportunity : see, for example, the observations of Sir John Donaldson MR in R v. Panel on Take-overs and Mergers, ex parte Datafin Plc [1987] QB 815 (at 840) when he referred to —

“the special needs of the financial markets for speed on the part of decision-makers and for being able to rely upon those decisions as a sure basis for dealing in the market.”

10.In the circumstances, I directed that, in an attempt to bring finality to the matter in the shortest possible time without prejudicing the substantive ability of counsel to present their respective cases, the application for leave to apply for judicial review and the substantive application itself would be dealt with in one hearing.  That, of course, did not dispose of the need on the part of the applicants to satisfy me that they should be entitled to leave.

11.As for the question of leave, I am quite satisfied that the applicants, on the merits, discharged the burden on them.  The test for leave was set in this jurisdiction in R v. Director of Immigration, ex parte Ho Ming Sai (1993) 3 HKPLR 157 (at pages 161 and 170) and is to the following effect; namely, whether the material before the court discloses matters which, on further consideration, might demonstrate an arguable case for the grant of the relief sought.

12.The test is not an onerous one.  But that is not to say it is no test at all.  The applicants, however, as I have said, did more than meet the requirements of the test.  Indeed, I am satisfied that they presented a strongly arguable case.  In fact, I go so far as to say that I found the central issue of interpretation to be far from easy.  The Authority, it seems to me, was bold indeed — some might use a different description — to embark on such a massive privatisation of its commercial assets without the assurance of a firmer legislative base.

Issues of delay and abuse of process

13.Mr Fung submitted that the issue of the Authority’s intended divestment of the retail and car parking facilities in the majority of its estates had been in the public domain for nearly 18 months.  The Authority’s decision to proceed had been advertised as far back as July 2003 and since that time the Authority had kept the public, including its housing estate tenants, informed of progress.  Over the past 18 months a number of decisions had been made by the Authority which could legitimately have been challenged by the applicants.  Instead, the applicants had waited until 8 December to institute proceedings.

14.Manifestly, said Mr Fung, there had been undue delay on the part of the applicants.  That delay gave me the discretion, whatever the merits of the challenge, to refuse to grant leave and I should exercise that discretion against the applicants.  Mr Fung complained that the eleventh hour challenge had caused substantial prejudice to the Authority and threatened substantial hardship and prejudice to innocent investors both in Hong Kong and overseas, a large number of whom will have borrowed on margin to finance their applications for units in the trust.

15.The delay, said Mr Fung, was compounded by the fact that the application itself smacked of abuse of process, this court being used for ‘political’ ends in order to attempt to embarrass the Authority.  In this regard, Mr Fung laid much emphasis on the fact that a legislative councillor, Mr Albert Cheng, had admitted ‘being behind’ the applications and supporting the applicants financially.  Mr Cheng, it was said, had no legitimate interest in the application and his actions constituted the long-recognised impropriety of ‘maintenance’ : the wanton and officious meddling in the disputes of others in which the maintainer has no interest and where the assistance rendered is without justification or excuse.

16.Mr Dykes SC, leading counsel for the applicants, rejected the allegations of delay and abuse.  In my view, in light of the unique factual circumstances of this case, for the reasons he gave, he was correct to do so.

17.In respect of the alleged delay, Mr Dykes emphasised that it was not until November of this year, less than a month ago, that the Authority published its decision to enter into a formal agreement to divest itself of its facilities.  This, he said, was the decision challenged, a decision ostensibly made under s.4(ga) of the Ordinance to assign the facilities to a company called PropCo (The Link Properties Ltd).  This,he said, was the first formal step in the divesting process leading to the flotation.  The Authority’s earlier decisions, said Mr Dykes, had been decisions ‘in principle’ only, effectively ‘provisional’ decisions.  They had been decisions in respect of which it was doubtful that any public law consequence flowed.  The applicants he said — relying on the recent House of Lords decision in R (Burkett) v. Hammersmith Borough Council [2002] 1 WLR 1593 — had not been obliged, to avoid accusations of delay, to challenge the Authority’s decisions ‘in principle’, (decisions from which it could have resiled without any public law consequence) and had been entitled to wait for the first ‘publicly binding’ decision, one having public law consequences : in this case a decision made pursuant to alleged statutory powers.  In the factual circumstances of this case, without attempting to set any principle, I believe there is substance in the submissions of Mr Dykes.

18.In any event, said Mr Dykes, I had a discretion in the matter and if I was satisfied that the applicants had a good arguable case — as I was —I should be slow to prevent the merits being determined in respect of a matter of such profound public consequence.  I agree fully with him.

19.Mr Dykes added that it did not sit well with the Authority to argue that the doors of the court should be closed to the applicants, no matter what the merits of their case, in order to protect investors who, knowing that the flotation was never a certainty, had borrowed on margin to finance their applications.  Again, I agree with him.

20.As for the allegation of abuse of process, Mr Dykes roundly rejected any suggestion of ‘political grandstanding’ on the part of the applicants.  There had been no ulterior motive in bringing the application, he said.  Whatever entirely legitimate assistance had been given by Mr Albert Cheng to the applicants — both of whom are impoverished and elderly persons — the applicants had instituted their action not simply at the behest of Mr Cheng but because they believed that privatisation of the Authority’s facilities was wrong in law and would undermine their rights in terms of the Ordinance to look to the Authority for the continued maintenance of their quality of life, meagre as it was, as tenants in the Authority’s housing estates.

21.As for the allegation of ‘maintenance’, Mr Dykes said that there was clear authority to the effect that, even if ‘maintenance’ could be proved — and he denied that there was evidence of it in this case — it did not constitute a defence to an action nor did it provide grounds for an action to be stayed : directly analogous to a refusal to grant leave even though the merits warrant it.  As Mr Dykes said, the courts insist on the importance of access to justice.

22.But, as I have said, Mr Dykes denied that there had been any ‘maintenance’ in this case.  In this regard, he cited the observations of Millet LJ in Thai Trading Co. v. Taylor [1998] QB 781 :

"… even in former times maintenance was permissible when the maintainer had a legitimate interest in the outcome of the suit.  This was not confined to cases where he had a financial or commercial interest in the result.  It extended to other cases where social, family or other ties justified the maintainer in supporting the litigation.  In Neville v. London ‘Express’ Newspaper Ltd. [1919[ A.C.368, 389 Lord Haldane said :

'Such an interest is held to be possessed when in litigation a master assists his servant, or a servant his master, or help is given to an heir, or a near relative, or to a poor man out of charity, to maintain a right which he might otherwise lose.' "  [my emphasis]

23.In the present case, said Mr Dykes, Mr Cheng shared the same concern as the applicants as to the legitimacy of the Authority’s actions.  Was he not therefore entitled to ensure, by way of financial assistance, that the applicants were given a voice?  Access to justice, said Mr Dykes, citing Millet LJ in the Thai Trading case, is regarded today as a fundamental human right which ought to be readily available to all.  Mr Cheng, having a legitimate interest in the Authority’s divestment of public assets, was entitled to assist the applicants financially with a gift of money.

24.While obvious the challenge of the applicants, made on the eve of the flotation, has caused a considerable degree of concern, I am not satisfied that the applicants have been shown to have acted in a way which this court should condemn as an abuse of its process.  By way of summary, I am satisfied that neither the challenge of delay nor the challenge of abuse, involving the allegation of ‘maintenance’, should prevent the applicants, leave having been granted to them, from having their application determined on the merits.

Looking to the powers of the Authority

25.The issue of statutory interpretation which lies at the heart of this application for judicial review has to be considered within the broader context of the Authority’s general powers and duties.

26.The Authority is a creation of the Ordinance, established pursuant to s.3.  Accordingly, it may only do what the Ordinance permits it to do.  The object for which it is established is succinctly stated in s.4(1) of the Ordinance.  This section to which I shall refer in far greater detail later in this judgment, reads :

“The Authority shall exercise its powers and discharge its duties under this Ordinance so as to secure the provision of housing and such amenities ancillary thereto as the Authority thinks fit for such kinds or classes of persons as the Authority may, subject to the approval of the Chief Executive, determine.”

27.Over the years, the Authority has discharged its duties under the Ordinance by providing housing to eligible persons in a large number of housing estates which are dispersed throughout Hong Kong.  Historically — and speaking in broad terms — the kinds or classes of persons which the Authority, with the approval of the Chief Executive, has determined should be eligible to enjoy its housing are those who, at the time of accepting benefits from the Authority, have been found to be financially disadvantaged; that is, unable to afford to participate in the private sector market.

28.In providing ‘housing’, the Ordinance has permitted the Authority to provide more than residences only.  In terms of s.2 of the Ordinance, ‘housing’ means “residential, industrial, commercial and business accommodation, buildings or premises”.  The legislature has determined therefore that, to ensure a quality of life, the Authority should be authorised to build and manage what I will describe as ‘residential environments’ which may include commercial and business accommodation such as shops and offices.  In addition, of course, s.4(1) itself gives the Authority the power to secure the provision not only of housing, as that term is defined in the Ordinance, but such ancillary amenities as the Authority thinks fit.  This, on an ordinary reading, will include recreational facilities and the like.

29.While patently, in securing the provision of housing to the financially disadvantaged in the manner I have described, the Authority has met — and continues to meet — a pressing social need, the mandate given to it by the legislature is nevertheless constrained by the need for financial prudence.  In my judgment, it is important to emphasise that the legislature has imposed on the Authority a specific duty (as opposed to discretion) to attempt to balance its books.  This duty is imposed on the Authority by s.4(4) of the Ordinance which reads :

“The policy of the Authority shall be directed to ensuring that the revenue accruing to it from its estates shall be sufficient to meet its recurrent expenditure on its estates.”  [my emphasis]

30.During the course of submissions, it was emphasised by Mr Fung on behalf of the Authority that there is a material difference in the manner in which residential facilities as opposed to commercial facilities have been managed by the Authority.  In terms of s.16 of the Ordinance, said Mr Fung, residential accommodation is subject to rent control.  However, commercial accommodation, such as shops, offices, car parking and the like, has never been subject to such constraint within the terms of the Ordinance.  Evidence was placed before me to show that commercial facilities have at all times been rented out according to market principles.  Tenants running shops have therefore had to pay what the Authority, through its officers, have considered to be prevailing market rentals and similarly those who wish to use car parking spaces have had to pay market rates.

31.Mr Fung emphasised that welfare organisations have enjoyed special rates.  But this benefit, he said, will continue.  Covenants have been entered into to ensure that the new owners of the commercial facilities will be bound just as the Authority was bound.  The fear, therefore, that welfare organisations will be forced to move away is groundless.

32.The Authority, in order to manage its own finances and remain viable is given the discretion to borrow funds.  This discretion is contained in s.12 of the Ordinance which reads :

“The Authority may borrow from the Government, or from such other sources as the Chief Executive may approve, such moneys as may be required for the discharge of the functions of the Authority under this Ordinance, upon such terms and conditions as may be approved by the Chief Executive.”  [my emphasis]

33.While the Authority may have the discretion to borrow, it remains at all times under the duty to attempt to balance its books.  The statutory duty must take precedence over any statutory discretion.

34.In order to raise revenue, the Authority is given broad powers to sell its assets including immovable property.  This power is defined in two sections of the Ordinance.

35.First, s.4(2)(a) of the Ordinance is to the following effect :

“(2)    The Authority shall have the following powers—

(a)    to acquire and hold property of any description and, subject to the terms and conditions upon which the same is held, to dispose of any such property.”

The Authority may therefore acquire property of ‘any description’ and may dispose of that property.  ‘Property’ within the meaning of that subsection I am satisfied must include immovable property; property, in terms of s.3 of the Interpretation and General Clauses Ordinance, Cap.1, including land.

36.In the second instance, s.17A of the Ordinance, headed ‘Sale of Land’, reads :

“(1)   Subject to the conditions of the Government lease in respect of any land in an estate, and subject to the payment of such purchase price and such terms and conditions of payment as the Authority may determine with the prior approval of the Chief Executive, the Authority may sell or otherwise dispose of any such land.

(2)   Subject to the conditions of the Government lease in respect of any land in an estate, the Authority may fix the terms, covenants and conditions on which such land may be sold or otherwise disposed of.

(3)   …”

37.‘Land’ is defined in s.2 of the Ordinance as meaning ‘immovable property’.

38.I would add that, in addition to the power to sell immovable property, the Authority has the power, if it thinks fit, to demolish immovable property.  In this regard, s.4(2)(b) reads :

“to construct new buildings, and any premises or structures ancillary thereto, for the provision of the housing referred to in subsection (1) and to acquire, alter, enlarge, improve, repair or demolish houses or buildings for this purpose.”

39.I will also add that in terms of s.4(2)(k), the Authority also has the power—

“to do all such other acts as are reasonably necessary for the exercise or performance of all or any of the powers or duties of the Authority under this Ordinance and to perform any other function which is incidental or conducive to or connected with the attainment or furtherance of the purposes of the Authority in accordance with this Ordinance.”

40.I have said that the power to sell is a ‘broad’ power.  I have come to that conclusion because the power is not restrained by the legislature in any specific way and can therefore be exercised by the Authority as it thinks fit provided only that any sale does not, in the circumstances, thwart or run counter to the policy and objects of the Ordinance.

41.Considered in its general context, I do not see how it can be successfully argued that the Authority, facing a material deficit in its operating costs, can be said to be thwarting the policy or objects of the Ordinance in selling certain of its commercial assets, which will still remain available to their past users, when in doing so it is able to raise funds to cancel that deficit and have money available to renovate existing housing or build new housing for those in need.  Indeed, it seems to me that in respect of commercial assets which are already part of the immovable physical infrastructure of the Authority’s estates, and in respect of which the Authority has always charged market rentals, the raising of revenue from their sale may well be legitimately said to advance rather than undermine the policy and objects of the Ordinance.

42.The question, therefore, cannot be one that goes to some general issue that the Authority’s intended sale of its assets constitutes some wayward expedition that offends the very purpose for which the Authority was created.

43.The question, as Mr Dykes himself accepted, is much more specific.

44.As I have said earlier, the question goes to the interpretation of one section in the Ordinance; that is, s.4(1).  Indeed, in my judgment, the ambit of the question is reduced even further and goes to the meaning and intent of a single phrase within that section.  I cite s.4(1) below and, in doing so, emphasise the single phrase in issue.  The section reads :

“The Authority shall exercise its powers and discharge its duties under this Ordinance so as to secure the provision of housing and such amenities ancillary thereto as the Authority thinks fit for such kinds or classes of persons as the Authority may, subject to the approval of the Chief Executive, determine.”

45.It seems to me therefore that the single question of interpretation to be determined may be expressed as follows : ‘Does the Authority’s intended sale of its retail outlets and carparks offend its obligation in terms of s.4(1) to exercise its powers and discharge its duties ‘so as to secure the provision’ of those facilities for the persons it has determined are eligible to reside in the estates and therefore to enjoy those facilities?’

The phrase : ‘to secure the provision …’

46.Mr Dykes said that the Authority had already exercised its powers to secure ‘housing’ for the applicants in the estates where they live.  The ‘housing’ is of the kind that the Authority thought fit at the time and, by its actions, must be taken to still consider appropriate.  This ‘housing’ consists not only of residential accommodation but also of commercial facilities such as shops and carparks.  In terms of the Ordinance, said Mr Dykes, the Authority remains under a continuing duty to secure the provision of this ‘housing’ for the applicants because they remain eligible persons and their needs have not changed.

47.So long as the ‘housing’ continues to be owned by the Authority, said Mr Dykes, the applicants continue to enjoy their rights under the Ordinance.  However, if the ‘housing’ (i.e. shops and carparks) is sold then the applicants will no longer enjoy any rights under the Ordinance in respect of that ‘housing’ which can be enforced directly against the Authority.

48.Control is the key issue, said Mr Dykes.  The disposal by way of sale of the ‘housing’ cannot ‘secure the provision’ of that very ‘housing’ because sale passes control to a third party.

49.Read in context, said Mr Dykes, the phrase ‘to secure the provision of’ must mean not only providing the physical infrastructure so that it is available to the applicants but arranging matters on a continuing basis so that that infrastructure is made ‘secure’.

50.Mr Dykes suggested that the phrase ‘to secure the provision’ is therefore to be read as being more robust in its direction than the phrase simply ‘to provide’.  In this regard, he made reference to two authorities —Medley v. Medley (1882) 7 P.D.122 and Yates v. Starkey [1936] Ch.465 — where the meaning of the phrase ‘to secure’ was considered within the context of legislation dealing with an obligation in matrimonial matters to ‘secure’ financial benefits for a spouse or children of a marriage.

51.I have not been assisted by the authorities.  The phrase ‘to secure’ is broad in its meaning, having various colourings according to the context in which it is employed.  In my judgment, the obligation ‘to secure’ something may be very different from the obligation ‘to secure the provision’ of something.

52.The phrase ‘to secure the provision of’, is specific.  By this I mean that the particular wording must has been chosen by the legislature to convey a particular meaning.

53.It was opened to the legislature to employ the single phrase ‘to provide’ or the single phrase ‘to secure’.  It chose not to do so.  It chose to employ the composite phrase ‘to secure the provision of’.  In my view, there is an important difference.

54.As I read it, the phrase ‘to provide’ would enjoin the Authority to itself provide housing in its various forms and to continue do so.  The second phrase however does not restrain the Authority to providing it itself but will include, at the discretion of the Authority, the power to secure its provision by others.

55.As Hobhouse LJ observed in Credit Suisse v. Allerdale Borough Council [1997] CA 306 (at 360F) :

“It is possible for a function of a local authority to be secondary—to encourage or assist others to do something or arrange for others to do something.  If so, it can be a discharge of the authority’s function to provide such encouragement or assistance or to make such arrangements.”

56.Hobhouse LJ said that the distinction was obvious.  It was a distinction, he said, which had been acknowledged by the Court of Appeal in Ebbw Vale Urban District Council v. South Wales Traffic Area Licensing Authority [1951] 2 KB 366 in which Cohen LJ (at 370, 371) said :

“Under the ordinary rules of law, a parent company and a subsidiary company, even a 100 percent subsidiary company, are distinct single entities, and in the absence of an agency contract between the two companies, one cannot be said to be the agent of the other … I would emphasise the distinction that is plainly drawn [in the Act] between ‘providing’, on the one hand, and ‘securing or promoting’ on the other, the provision of an efficient system of transport.  It seems to me that these words clearly visualise that the commission may either provide the system themselves or may secure or promote its provision by others.”

57.In Ebbw Vale case, the terms of the relevant statute were as follows :

“It shall be the general duty of the commission so to exercise their powers under this Act as to provide, or secure (or promote) the provision of, an efficient … system of public inland transport …”  [my brackets]

58.In his judgment, Cohen LJ, in addition to the words cited by Hobhouse LJ, said the following :

“Where a service is provided through a subsidiary company of the commission, it seems to me that prima facie, having regard to the general rule of law, what the commission are doing is to secure the provision of road transport facilities, and not to provide them … That the commission can act through an agent is also clear … but, as I have said, there is no question of agency here … In the present case, I think, the commission were securing the provision of an efficient … system of public inland transport within the meaning of section 3(1) of the Act, through the omnibus company—not an independent concern, but a separate legal entity.”

59.In my judgment, the legislature must have intended the phrase ‘to secure the provision’ as it appears in s.4(1) of the Ordinance is to be read in the same manner as the identical phrase has been interpreted in the Ebbw Vale case; namely, that the phrase gives to the Authority the discretion either to provide housing and amenities itself and to continue to do so or to secure the continued provision of the housing and amenities by somebody else.  If it chooses, this other party may be a separate legal entity entirely.

60.Mr Fung, employing phraseology taken from the judgment of Lord Hoffmann in the House of Lords decision in R v. Wandsworth London Borough Council, ex parte Beckwith [1996] 1 WLR 60, suggested that the phrase ‘to secure the provision’ freed the Authority from the obligation to make direct provision for securing such commercial facilities as retail outlets and carparks and allowed it to make indirect provision; that is, through third parties.  That seems to me to be simply another way of expressing what I have found to be the true interpretation of the phrase; namely, that the legislature, in wording the direction in the manner it did, stated — to use plain language — that it was not concerned that the Authority should itself provide and continue to provide housing (in all its forms) and amenities but was concerned only that the Authority should secure such provision, whether it did so itself or through third parties.

61.If the Authority has a largely unfettered power of sale of its assets in order to enable it to continue to provide ‘housing’ and if, in order to secure the continued provision of such ‘housing’, it may do so through independent third parties, it seems to me that, reading s.4(1) in context, it must have the power, if it decides, to sell its commercial assets which already form part of the integral physical fabric of its estates so that the continued provision of those assets for the enjoyment of the estate tenants may be managed by the new owner or owners.

62.Mr Dykes submitted that ‘control’ or ‘ownership’ was key.  I am unable to agree.  In my judgment — in looking to the phrase ‘to secure the provision’ — it is apparent that the legislature has not directed that the Authority must itself continue to provide commercial amenities and may do so through others who may own those amenities.

63.I stress that this judgment looks only to the Authority’s powers in respect of its commercial assets.  Residential assets may well be subject to a very different set of interpretative imperatives.

64.The application for judicial review must therefore be dismissed.

65.I have already ruled as to costs and need say no more in this judgment.

Mr Philip Dykes, SC leading Mr Hectar Pun and Mr Newman Lam, instructed by Messrs Barnes & Daley, for 1^st and 2^nd Applicants

Mr Daniel Fung, SC leading Ms Catrina Lam, instructed by Messrs Clifford Chance, for Respondent