Ho Sum Keung v. Director of Lands

HCAL 123/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 123 OF 2003

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BETWEEN

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Before: Hon A Cheung J in Court

Dates of Hearing: 6-8 April 2005

Date of Judgment: 27 May 2005

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J U D G M E N T

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Facts

1.The Applicant is the administrator of the estate of Tsang Fuk Lin, deceased (“the Deceased”) pursuant to letters of administration issued for the use and benefit of Madam Vong, the widow of the Deceased.  The Deceased used to own by himself or in conjunction with his two brothers as co-owners various pieces of land in the New Territories.  He passed away in the South Pacific in 1961.  After his death, those pieces of land were resumed by the Government in between 1975 and 1981 pursuant to the Crown Lands Resumption Ordinance (Cap. 124).

2.Pursuant to the provisions of the Ordinance, the owners or former owners of the resumed lots of land were entitled to claim statutory cash compensation from the Government to be assessed by the Lands Tribunal (or its predecessor).  However, as was the Government’s policy at the time, the Deceased as one of the affected landowners was offered “land exchange entitlements”, commonly referred to as “Letters B”, in respect of the land under resumption, in lieu of the statutory entitlement to cash compensation under the Ordinance.  In short, a Letter B was a contractual offer to the affected landowner to exchange the land announced to be resumed for an entitlement to be granted at an unspecified time in the future a named footage of unidentified land, either in respect of 100% of the land to be resumed or 50% of the same (with the remaining 50% to be exchanged by cash at a stated rate set out in the Government’s offer).  The offer was open for acceptance within a specified deadline.

3.In the case of the Deceased, the problem with the Letter B offers that were made in accordance with the then policy of the Government was that he was long dead by time the offers were made to him, and he having died intestate, there had not been any grant of representation issued in respect of his estate.  The net result was that there was nobody legally capable of representing his estate and accepting the Letter B offers before they lapsed.

4.In parallel with the Letter B scheme at the time was a so-called “Modified Letter B” scheme (“MLB”).  Under the scheme, the Government was prepared to, in relatively well-defined exceptional circumstances, make Modified Letter B offers to affected landowners who had not accepted Letter B offers that had been made previously to them and had allowed them to lapse.  One of the accepted exceptional situations was where the affected landowner had passed away and the grant of representation that was eventually obtained had not been obtained in time so as to enable the personal representative to accept the original Letter B offer before it lapsed.

5.However, the MLB scheme still did not assist the Deceased’s estate or the beneficiaries of the same because although a grant of representation of the estate was eventually obtained, it was only obtained in June 1997 – in favour of the Applicant for the benefit of Madam Vong, of whom the Applicant was an attorney.  By then, the policy of making Letter B offers had long ceased – it ceased on 9 March 1983.  More importantly, the MLB scheme had also ceased on 31 March 1992 in the sense that after consultation with the Heung Yee Kuk, the Government had decided to impose a deadline (31 March 1992) “for applying for Modified Letters B” so that “any such application dated after [the deadline] should be rejected”.

6.The lengthy period of time that had been taken to obtain the grant of representation of the Deceased’s estate is said to have been due to a number of reasons, including the considerable difficulty in obtaining the proof of death of the Deceased in the New Hebrides (now Republic of Vanuatu), the uncertainty as to whether the Deceased died domiciled in Hong Kong, Tahiti or the New Hebrides, the fact that the Deceased had four wives and nine children, many of whom resided in the Pacific Islands and Tahiti, and had a largely Polynesian background, with little, if any, understanding of the Deceased’s affairs in Hong Kong, let alone the complicated question of succession to land in the New Territories, and the untimely death of the eldest son of the Deceased (Tsang Kam Wah) in 1996 who had been in the forefront in applying for a grant of representation of the estate.  On top, according to the evidence, one may add the disagreement between Tsang Kam Wah and one of his younger brothers, Francois Tsang, as well as the disagreement between Tsang Kam Wah and Madam Vong, the fourth wife of the Deceased, residing in Tahiti, which did not end until after the death of Tsang Kam Wah in 1996.

The 1996 application

7.On 29 August 1996, whilst Madam Vong through her attorney in Hong Kong was still applying for the grant of representation, her then solicitors made an application on her behalf to the District Lands Office “for the Deceased’s estate’s entitlement to land exchange in respect of the resumption of [the subject land]” (“the 1996 application”).

8.By letter dated 6 December 1996, the District Lands Officer, Sha Tin informed the solicitors that the deadline for applying for MLB had lapsed on 31 March 1992, and their client’s application for MLB in respect of the lots of land was therefore not successful.  However, the Government was prepared to pay, in accordance with its practice, ex gratia compensation to the estate after the grant of representation, which was to be calculated according to rates apparently identical to those cash compensation rates set out in the original Letter B offers (it should be remembered that under a Letter B offer, the affected landowner can opt for cash compensation at the rate stated in the offer in lieu of statutory assessment of compensation under the resumption legislation, instead of a land exchange entitlement).  According to some calculations that have been placed before the Court by way of evidence, the ex gratia compensation so calculated would amount to about $2.25 million.  Madam Vong was not happy with the amount and understandably so – it is common ground that if MLBs were issued to the estate, they would be worth over $330 million in value in total.  This valuation is based on the encashment formula set out in the New Territories Land Exchange Entitlements (Redemption) Ordinance (Cap. 495), enacted in 1997, which in short, mandatorilyconverts all outstanding Letters B to cash according to a certain statutory formula.

The 1998 application

9.After Madam Vong through her then attorney had obtained the grant in 1997, she tried again.  By a lengthy letter dated 25 March 1998 (“the 1998 application”), her then solicitors wrote to the District Lands Office, Sha Tin, setting out the long history of the matter, and put forward arguments on her behalf.  In gist, Madam Vong’s case was argued under two alternative limbs.  The primary position was that as the Deceased had already passed away when the original Letter B offers were made to “him” and there was no legal personal representative of the estate, and given that his death was known to the Government even at that time, no valid Letter B offers were ever made.  The letter therefore required the Government to make the Letter B offers to the Applicant as the lawful administrator of the estate.

10.Alternatively, the letter referred to the fact that some of the Letter B offers were in fact addressed to Tsang Kam Wah, the eldest son of the Deceased, and that the Government entered into correspondence with him in which the latter had in substance expressed the intention to accept the Letter B offers.  The solicitors therefore argued that the Government had accepted Tsang Kam Wah as the de facto administrator having the right to accept the Letter B offers (pending the issue of the grant of representation), and the grant of representation having been issued eventually, the Government was obliged to issue the land exchange entitlements to the estate.  The letter therefore asked the Government to send all necessary documents to the administrator for his execution on behalf of the estate.

11.The letter also drew the Government’s attention to the fact that the two brothers/co-owners of the Deceased, whose lots of land were resumed by the Government, had also passed away and their estates were both successful in getting (Modified) Letter B entitlements issued long after their death.  In the case of one brother, he passed away in 1979, letters of administration were only obtained in 1991 and the Modified Letter B entitlements were issued in 1992.  In the case of the other brother, he passed away in 1976, probate was only granted in 1990 and the Modified Letters B were issued in April 1997.

12.The letter concluded by pointing out that the matter involved complicated questions of law and fact on which advice from the (then) Legal Department should be sought by the Lands Department.

13.By letter dated 13 May 1998, the District Lands Officer, Sha Tin replied:

“Dear Sirs,

Resumption of land which were formerly
owned by Tsang Fuk Lin (deceased)
in Sha Tin, New Territories

I refer to your letter dated 25 March 1998.

Government does not admit the allegations as contained in your letter.  In particular, Government does not admit any de facto administrator as alleged.

It was incumbent upon the next-of-kin of the late Tsang Fuk Lin to exercise due diligence or to take any appropriate action in obtaining the necessary grant of Probate or Letters of Administration in the circumstances of the case.  From the information supplied, I notice that the next-of-kin of the late Tsang Fuk Lin has not been in correspondence with Government regarding the resumption matters since some time in June 1978.  Since then, it was until August 1996 that you contacted Government on the matter on behalf of your client.  Government denies having made any representation as to any extension of time.  Government denies that there has been any waiver on its part of any right in relation to time-limit or formalities.  Government denies having made the representations as alleged in reliance upon which Tsang Kam Wah and the estate of the late Tsang Fuk Lin had acted to their detriment as alleged or at all.

Government considered that each case must be decided on its own merits and circumstances and denies that your client or the estate of the late Tsang Fuk Lin has a legitimate expectation to receive an offer of Letter B Entitlements in exchange as alleged.

I confirm that I am in the course of seeking further legal advice on the matter.  Meanwhile, Government reserves all its rights hereunder.

Yours faithfully,
[signed]
(K.W. Wong)
for District Lands Officer, Sha Tin”

(emphasis added)

14.Dissatisfied with the reply, Madam Vong through her attorney took the Government to court.  Following the Applicant’s then counsel’s advice and contrary to her previous stance, no judicial review proceedings were commenced against the Government in relation to its reply.  Instead, a writ action was commenced (HCA 11943/1999).  The only cause of action relied on in the action was an alleged oral agreement reached between Tsang Kam Wah as de facto administrator of the estate of the Deceased and the Government at a meeting held in late 1991, whereby the Government allegedly undertook to reserve Letter B entitlements for the estate of the Deceased and to transfer the same to the administrator upon the grant of letters of administration.  The allegation was denied by the Government.  Suffice to say that the action has since gone to sleep.

The 2003 application

15.By 2003, the Applicant had changed solicitors (and probably counsel).  By letter dated 5^th August 2003 (“the 2003 application”), the new solicitors on behalf of the Applicant and Madam Vong tried yet again.  Apart from setting out again the long history of the matter and the cases of the two deceased brothers, the letter – which was even longer than the 1998 one – addressed for the first time the question of why it had taken so long for the Applicant to obtain the grant of letters of administration.  This was no doubt prompted by the reference in the 1998 reply from the Government already reproduced in full above that “It was incumbent upon the next-of-kin of the [Deceased] to exercise due diligence or to take any appropriate action in obtaining the necessary grant”.  The letter referred to in some detail the complications or difficulties that I have already alluded to above, in the obtaining of the grant.  The letter therefore argued that the estate was entitled to the issue of Letter B offers, but given the redemption legislation referred to above, the letter asked for the making of an offer of cash compensation to be paid to the estate in respect of the resumed land lots, to be calculated by reference to the redemption legislation.

16.By letter dated 15 September 2003, the Department of Justice replied on behalf of the District Lands Office, Sha Tin as follows:

“Dear Sirs,

High Court Action No. 11943 of 1999
Compensation in Respect of the Resumption of Various
Lands Lots Formerly Owned by Tsang Fun Lin (Deceased)

We refer to your letter dated 5 August 2003 addressed to the District Lands Office, Shatin which has been referred to us with instructions to reply.

We are instructed that the Government does not admit the allegations as contained in your letter.  In particular, the Government denies that your client has a legitimate expectation to receive an offer of Land Exchange Entitlements in respect of the land resumed.

We wish to draw your attention to a letter dated 13 May 1998 from the District Lands Office, Shatin to Messrs. King & Co. which represents Government’s stance in the subject case.  A copy of the said letter is enclosed for herewith your reference.

With reference to your proposal for settlement of the outstanding land compensation of the estate of the late TSANG Fuk Lin, it is noted that the same is calculated pursuant to the New Territories Land Exchange Entitlement (Redemption) Ordinance, Chapter 495 on the assumption of the equivalent cash redemption value of Land Exchange Entitlements as if such had been issued to the land resumed, which is not the case here.  We are therefore instructed to inform you that your proposal cannot be acceded to.

Yours faithfully,
[signed]
(Simon LAU)
Government Counsel”

(The letter of 13 May 1998 enclosed with the reply of 15 September 2003 was the letter of reply dated 13 May 1998 already reproduced above.)

Application for judicial review

17.This time, the Applicant took the Government to court for judicial review, and thus the present proceedings.  Originally, the Applicant sought to challenge the decisions of the Government set out in a letter dated 6 August 1997 (relating to negotiations on the amount of ex gratia compensation – which is not relevant for the purpose of this judgment), and the two subsequent letters dated 13 May 1998 and 15 September 2003.  The last two letters were, as explained above, written in reply to the 1998 application and 2003 application by the Applicant.

18.In relation to the challenge against the decision set out in the letter dated 13 May 1998, the application for leave to apply for judicial review taken out on 2 December 2003 was obviously out of time for many years.  No doubt for good reasons of his own, the Applicant successfully applied to amend the application by deleting the challenge against the first letter dated 6 August 1997 and changing the challenge in relation to the second letter dated 13 May 1998 by classifying the reply given by the Government in that letter as a “non-decision” on the Applicant’s 1998 application.  In other words, as amended, the Applicant’s complaint is that the Government failed to make any determination in respect of the Applicant’s 1998 application, and an order of mandamus is sought to require the Director of Lands to determine the Applicant’s 1998 application on its merits.  However, the challenge against the decision set out in the letter of 15 September 2003 was made in time and it remains the Applicant’s primary challenge in these proceedings.

Government’s evidence and “E-13”

19.In the evidence that has been filed in these proceedings, the Government has explained the original Letter B scheme, the MLB scheme, the 1997 redemption legislation, the underlying policies and the Government’s considerations involved, as well as the actual implementation of the policies and schemes, in some detail.  I will not repeat the same here so as not to render this judgment intolerably long; suffice to say that they have all been taken into account in my consideration.  Furthermore, the Government has explained that in relation to both the 1998 application as well as the 2003 application, it has actually considered the Applicant’s case on its merits according to the then available materials, before it came to its decisions to reject the applications – it was and is the Government’s position that there had been a final decision made in respect of the 1998 application, as set out in its letter of 13 May 1998, and there is therefore no question of there being a “non-decision”.

20.In evidence is also an internal document of the Government, commonly known as “E-13” in these proceedings which sets out, amongst other things, the MLB scheme and the deadline of 31 March 1992 for applying for Modified Letters B under the scheme.  It is common ground that E-13 is an internal Government document that has never been published to the public at large or to the affected landowners in general.  Of great importance in this case is that this internal document sets out the circumstances under which the Government would consider issuing MLBs to those affected landowners who had allowed the original Letter B offers to lapse without acceptance.  The relevant part reads:

“The issue of Modified Letter B will normally be confined to:
(a)	Successors to deceased owners where they were in the process of obtaining probate, appointing new trustees, executors, etc.
(b)	Absentee landlords.
(c)	Joint owners of land where one or more of the owners was absent from the Territory.
(d)	Inability to clear existing mortgages in time.
(e)	Inability to clear sub-leases in time.
(f)	Notice required (for surrender of Tso/Tong properties) expired after the date of reversion.
It is stressed that there is no automatic right to the issue of Modified Letter B regardless of the circumstances and all cases must be carefully scrutinised by the DLO to establish that the prolonged delay was wholly unavoidable.  When all the facts have been established a submission should take the form of L.A.M. notes via GLA/NAA.  After LAM’s approval of a submission, an offer letter(s) of Modified Letter B may be signed by a Principal Land Executives.” (emphasis added)

21.I have already reproduced the two letters written by the Government in reply to the 1998 and 2003 applications, which set out the reasons for the Government’s position in relation to those two applications.  In the evidence filed in these proceedings, the Government explained its position in greater detail.  This was amplified by Mr YC Mok (leading Mr Jin Pao), appearing for the Director of Lands, at the hearing.  In gist, the Government’s reasons for rejecting the two applications are that: first, the applications were made out of time (after the lapse of the deadline in 1992); second, in any event, there has been “prolonged delay” (that was not “wholly unavoidable”) as per the requirement in E-13, or regardless of what label or descriptive words one should use, there has been “undue or unexplained delay” (as per Mr YC Mok’s oral submission).  In other words, both in terms of time limit and in terms of merits, the applications should be refused and they were therefore refused.  In any event, counsel argued that so far as relief is concerned, there has been undue delay and the grant of the relief sought would be “detrimental to good administration” (section 21K(6) of the High Court Ordinance, Cap. 4).

22.Although Mr Johnny Mok (appearing with Mr PY Lo) for the Applicant, has argued the Applicant’s case on a number of grounds, I find it convenient in this judgment to deal first with the gist of the Government’s case in refusing the two applications.

Deadline

23.The Government’s case on deadline is simple.  The 1998 and 2003 applications were made well after the expiry of the deadline of 31 March 1992.  According to E-13, any application dated after the deadline should be rejected.  As mentioned above, the 1996 application, which was the first application made by or on behalf of Madam Vong, was precisely rejected on this ground, i.e. the lapse of the deadline.  There is no challenge against that rejection.

24.Neither the 1998 reply nor the 2003 reply from the Government referred specifically or expressly to the 1992 deadline as a ground for refusing the 1998 and 2003 applications.  But according to the evidence filed on behalf of the Government in these proceedings, the deadline was indeed one of the (alternative) reasons or grounds relied on by the decision-maker in eventually arriving at the conclusion to reject the respective applications.

25.It is common ground that the deadline was imposed by the Government in 1991 after consultation with the Heung Yee Kuk, which undertook to take steps to notify in general the affected or potentially affected landowners or former landowners in the New Territories of the deadline.  There has never been any application for judicial review against the decision to impose the deadline.  For present purposes, the Government must be taken to be entitled to rely on the deadline as per E-13.

26.But that leaves the all-important question of whether the Deceased’s estate has only made an application after the lapse of the deadline, and if the answer is “yes”, the further question of the effect of not meeting the deadline in the present case.

Parties’ respective arguments on deadline

27.Here, the Applicant’s case is that an application has indeed been made prior to the expiry of the deadline.  On this, the Applicant relies on a number of letters written by Tsang Kam Wah back in the 70s to the District Officers asking for an extension of time to accept the Letter B offers, on the ground that he was still in the process of applying for a grant of representation.  These letters were written in relation to many but not all of the pieces of land under resumption.  A notable exception relates to the resumption that eventually took place in 1981.  In relation to the 1981 resumption, Tsang Kam Wah opted for statutory compensation under the resumption legislation.

28.Leaving the 1981 resumption aside, in respect of the requests for an extension of time, the Government’s responses were typically as follows:

“Dear Sir,

Thank you for your letter dd. 23rd June, 1978.

2.  I regret to inform you that I cannot accede to your request to extend the time limit mentioned in my letter dated 13th April, 1978.  However, your case will be re-considered when all the succession formalities have been complied with.

Yours faithfully

(TONG Tak-sing)
for District Officer, Sha Tin”

29.I say “typically” because not all of the replies to these requests for an extension of time can be located or have been put in evidence before the Court, but Mr YC Mok has asked this Court to assume that similar replies must have been written by the Government to Tsang Kam Wah in relation to his other requests for an extension of time, to which Mr Johnny Mok on behalf of the Applicant has raised no objection.  I think it fair and reasonable to proceed on that assumption.

30.Mr Johnny Mok argued that the requests for an extension of time made by Tsang Kam Wah were, in substance, applications for MLBs, because as has been explained in the evidence filed by the Government in these proceedings, under a MLB “the landowner in effect was given an extension of time to accept the original [Letter B] offer sometimes years after the expiration of the original deadline and with the benefit of hindsight on the market movement in the interim period” (para. 6 of the affidavit of Richard Baram).  Counsel pointed out that there was no prescribed form for the application whether in E-13 or elsewhere.

31.Counsel further argued that E-13 did not say that in the case of a deceased landowner, an application could only be made after the grant had been made.  Rather, there have been at least several known cases (including the cases of the two brothers of the Deceased) where the applications were made before the grants were obtained, whereas the MLBs were issued after they were so obtained.

32.On the other hand, Mr YC Mok, for the Director, argued that the family members of the Deceased did not speak with one voice, and one cannot treat Tsang Kam Wah’s requests for an extension of time as representing the wish of all family members of the Deceased, let alone that of the estate of the Deceased.  He also argued that Tsang Kam Wah’s applications back in the 70s had all been rejected by the Government there and then, and by the time the deadline lapsed in 1992, there was no more outstanding application in relation to the estate; thus the 1998 or 2003 application must be regarded as a fresh application made after the deadline.  Further, counsel did not accept that Tsang Kam Wah (or indeed anyone else) could on behalf of the estate make an application within the E-13 scheme prior to the issue of the grant, as like everyone else, he lacked the necessary legal title to represent the estate to make the application.  As regards the several examples referred to by Mr Johnny Mok, counsel, relying on the evidence filed on behalf of the Government, sought to distinguish them by pointing out that in those cases, the pre-grant applications were all made by persons who eventually successfully obtained the grants of representation, whereas in the present case, Tsang Kam Wah never successfully obtained the grant before his death, and the grant was eventually issued in favour of Madam Vong’s attorney.

Requests for extension of time as applications

33.I agree that Tsang Kam Wah’s requests for an extension of time may be regarded as applications for the issue of MLBs.  According to the evidence, a MLB was in effect an extension of time to the affected landowner to accept the original Letter B offer.  A MLB was in most cases of terms identical or similar to that of the original Letter B offer.  The exceptional circumstances under which a MLB would be issued were circumstances where for very understandable reasons, it was difficult if not impossible for the affected landowner (or his estate) to accept the original Letter B offer before it lapsed.  There was no prescribed form for making an application.  In my judgment, what matters is substance, not form.  I do not think Mr YC Mok really challenged this aspect of Mr Johnny Mok’s argument, which in any event I accept.

Applications not finally disposed of

34.As to whether Tsang Kam Wah’s requests for an extension of time have been disposed of or dealt with by the Government in their replies (a typical one has already been reproduced above), so that by the time the deadline lapsed in 1992, there was no outstanding application in relation to the resumed lots of land in question, and thus the 1998 and 2003 applications should be regarded as fresh applications made for the first time after the lapse of the 1992 deadline, I am again with the Applicant.  Irrespective of whether I should read the Government’s standard reply word by word and line by line, or whether I should read it with common sense and general allowance – regard having had to the general background of the policies and schemes involved, I am unable to accept Mr YC Mok’s argument that the Government has completely disposed of the applications for an extension of time made by Tsang Kam Wah in its replies.  It is true that in the replies, the Government refused to grant an extension of time there and then.  But the replies did not stop there.  They went on to say that “your case will be reconsidered when all the succession formalities have been complied with”.  Mr YC Mok sought to water down this sentence by suggesting that it was merely an invitation to Tsang Kam Wah to make a fresh application for an extension of time after he should have obtained the grant.  I disagree.

35.On the assumption that an application can be made by an intending administrator before he has obtained the grant (which will be dealt with below), when faced with an application by such an intending administrator, there is of course no question of the Government agreeing to grant an extension of time or, in terms of the MLB scheme, issue a MLB, there and then.  Taken to the highest, any agreement to extend time or to issue a MLB can only be conditional in nature – pending the successful application for a grant (and it may also be conditional upon other appropriate terms).  In those circumstances, the request for an extension of time or the issue of a MLB, of course, “cannot [be] accede[d] to” in the meantime.  That was precisely what the standard replies said.

36.Moreover, those replies were written in mid or late 70s, when neither the cessation of the Letter B scheme nor the subsequent cessation of the MLB scheme (in terms of the imposing of the deadline) nine years later was in the horizon.  There was no reason for the Government, in making the replies, to have wanted to reject outright, once and for all, the applications for an extension of time, which after all, fell potentially within one of the established exceptional circumstances for the issue of a MLB under the Government’s scheme.  The only reason stopping the Government from there and then processing the application for an extension of time (i.e. in substance for the issue of a MLB) was that the application for a grant had not yet been completed successfully.

37.Viewed and understood in that light, the last sentence in the reply is easy enough to understand – when the grant is eventually obtained, the case, or the application for an extension of time, or (in terms of the MLB scheme) the application for the issue of a MLB, “will be reconsidered”.

38.Of course, Mr YC Mok must be right in arguing that when the matter is “reconsidered”, it can only be reconsidered in accordance with the prevailing policy for an extension of time or the issue of a MLB.  But that is beside the point.  What I am discussing here is whether an application has been made prior to the lapse of the 1992 deadline.  The Applicant is not asking this Court to ignore the 1992 deadline or the applicable criterion for issuing a MLB because it was not there when Tsang Kam Wah made his applications.  The Applicant is prepared to accept the deadline and whatever criterion that may be applicable, but is simply arguing that Tsang Kam Wah’s applications were made prior to the deadline.

Applications by Tsang Kam Wah equivalent to applications by estate?

39.As to Mr YC Mok’s point that the Deceased’s family members did not speak with one voice in relation to the resumption matter, I agree that on the available materials, Francois Tsang was most unhappy about the resumptions, and at least according to a Government memorandum, he had in a meeting held on 12 June 1975 with the Government indicated that he was applying for letters of administration in respect of the Deceased’s properties, that he was not satisfied with the cash compensation rate stated in the Letter B offers and that he would attend a forthcoming hearing and make a claim for statutory compensation.  The pieces of land in question were Lots 398, 390A1, 395E2 and 403C in DD184.  According to the same memorandum, Francois Tsang did not turn up at the hearing, which went ahead in his absence.  Moreover, as has been mentioned above, in relation to the 1981 resumption exercise, Tsang Kam Wah himself opted for making a claim for statutory compensation under the resumption legislation.

40.But in my judgment, all this does not distract from the fact that Tsang Kam Wah has made various requests for an extension of time in respect of many of the affected lots of land in question[1], and as I have already analysed above, these applications have not been finally disposed of in the Government replies.  The crucial question is whether these applications for an extension of time were somehow nullified, withdrawn or otherwise affected by these so-called “other voices”, or by Tsang Kam Wah’s making of a claim for statutory compensation in relation to the 1981 resumption.  In my judgment, the answer is “no”.  In relation to Tsang Kam Wah’s opting for making a statutory claim for compensation, it was done only in relation to the lots of land resumed in 1981.  There is no or insufficient evidence to enable the Court (or for that matter the Director) to conclude that that also applied to the other affected lots of land, in relation to which Tsang Kam Wah had previously requested for an extension of time.

41.As to the “other voices” coming from other members of the family, they did not represent Tsang Kam Wah, and I fail to see how these voices could have the effect of nullifying, withdrawing or otherwise affecting Tsang Kam Wah’s requests for an extension of time.

42.More importantly, it must be remembered that prior to the grant of representation, no one had the legal or formal title to represent the estate.  The intention of Tsang Kam Wah and the (contrary) intention of Francois Tsang were as good, or in fact as invalid, as each other’s, from a legal point of view.  Neither would have the effect of binding the estate.  On the assumption that E-13 allowed an application to be made prior to the obtaining of the grant (for which see below), whether a particular view previously expressed by an intending administrator of the estate can be taken as representing the position of the estate must depend on the wish and election of the person who ultimately obtained the grant.  In the present case, as Madam Vong has through her attorney eventually obtained the grant, her election to adopt Tsang Kam Wah’s communicated intention (in the form of the letters requesting for an extension of time) as applications of the estate must be final, leaving aside the question of who could make a pre-grant application for the time being (see below).

43.Moreover (and in any event), as has been pointed out above, some of the Letter B offers were in fact addressed to Tsang Kam Wah himself, he being the eldest son of the Deceased as well as the holder of a power of attorney from the Deceased.  Unless the contrary “voices” were sufficiently overwhelming and strong, in my judgment, they would not have the effect of nullifying the requests for an extension of time that had been made by Tsang Kam Wah, which were made by him in direct response to the Letter B offers that had been either addressed to him personally or served on him by the Government.  On the evidence available, I do not find the “other voices” sufficiently overwhelming and strong to have such an effect.

Pre-grant applications allowed?

44.On the question of whether E-13, either as formulated or as implemented, allowed the making of a pre-grant application, I agree with Mr Johnny Mok.  E-13 itself did not say that a pre-grant application could not be made.  I have borne in mind the correspondence between the Government and the Heung Yee Kuk regarding the Government’s then intention to impose the deadline, which shed light on the genesis of the 1992 deadline.  I could see no or no sufficient policy justification for the Government wanting to exclude a pre-grant application from the scheme, so far as the deadline was concerned.  It seems to me that what was important to the Government (according to the evidence) was to bring an end to the MLB scheme (following the cessation of the Letter B scheme since 1983) and tocrystallise the Government’s liability or exposure (as it were) to issue MLBs pursuant to its MLB scheme.  All this was to be achieved by the deadline.  Allowing a pre-grant application to be made would not conflict with what the Government was seeking to achieve.  Regardless of whether a grant had been successfully obtained, an application made before the deadline would enable the Government to be made aware of its real or potential liability or exposure under the MLB scheme.  This would not be dependent on whether the person making an application was an administrator or simply an intending administrator.  On the other hand, to deny a pre-grant application would, obviously, work injustice in cases where the MLB scheme was designed in the first place to remedy, i.e. cases where beneficiaries of deceased landowners’ estates could not obtain the grants in time to take advantage of the original Letter B offers, without giving the Government any real benefit in terms of the objectives in imposing the deadline.

45.In terms of implementation of E-13, the Government does not deny in these proceedings that there have been cases in which the Government has entertained pre-grant applications.  I will deal with the distinction drawn by the Government about these cases shortly.  But the important thing from these examples, as Mr Johnny Mok has submitted, is that the Government did entertain pre-grant applications, in implementing E-13.

46.In those circumstances, whether from the wording of E-13 itself, a consideration of the underlying Government policy or the implementation practice of the Government, I see no or no sufficient justification to conclude that a pre-grant application should be ignored in determining whether the deadline has been beaten.

Pre-grant applications by eventually successful administrators only?

47.But then, Mr YC Mok, relying on the evidence filed, sought to limit the permissible pre-grant applications to those that were made by intending administrators who were eventually successful in obtaining the grants.  By evidence, I mean general assertions by Government officials in the evidence filed.  I do not mean internal Government documents or guidelines that set that out – there were none at any material time.  Counsel rationalised that favourable treatment by reference to the doctrine of relation back.

48.That rationalisation is itself problematic in that: first, it was not what the Government officials said in the evidence filed in these proceedings – they did not really refer to the relation back doctrine as such; second, the relation back doctrine, generally speaking, has no application in the case of an intestacy – the title of an administrator, unlike that of an executor, commenced from the date of the letters of administration, and did not relate back to the date of death, save in exceptional circumstances.  And in those exceptional circumstances where the doctrine does apply, it appears to apply to pre-grant acts done not only by the eventual administrator but also by others, so long as the acts did actually benefit the estate: see Williams, Mortimer and Sunnucks, Executors, Administrators and Probate (18^th ed.) paras. 8-10 to 8-13.

49.All this aside, I can find no justification for so limiting a pre-grant application, whether by reference to the actual wording of E-13, the underlying Government policy for the deadline, or (depending on how one reads the facts) the so-called Fatima case (one of the examples referred to by the Applicant to illustrate that a pre-grant application may be entertained) where on one view of the available materials, the pre-grant application was not made by the eventual administrator appointed in the letters of administration (but I note that the Government, in the evidence filed, seems to have read the facts differently).

50.E-13 does not say that no pre-grant application can be taken into account.  Still less does it say that only a pre-grant application made by the person who eventually became the administrator should be entertained.  E-13 merely says that a Modified Letter B is normally confined to “successors to deceased owners where they were in the process of obtaining probate, appointing new trustees, executors, etc.”  Here E-13 is talking about the person who is eventually offered a Modified Letter B, who, in this type of intestate cases, must be the administrator of the deceased landowner and no-one else, and who alone has the legal title to represent the estate.  But it does not mean that the pre-grant application must be made by this person.  E-13 does not say so.  As mentioned, apart from E-13, the Government has not pinpointed any existing internal documents or guidelines which put such a limitation on a pre-grant application.

51.As a matter of policy behind E-13 or the deadline, there was no reason why there should be such a restriction.  If I was right in my analysis above of the reasons or rationale behind the deadline and the Government’s concerns, so long as the Government was made aware of its liability or exposure, whether actual or potential, under the MLB scheme, it should not matter whether the information should come from the person who eventually obtained the grant or who was intending to become the administrator but for one reason or another did not eventually get it (but someone else successfully did).  The evidence filed on behalf of the Government in these proceedings did not say (nor did it suggest) that there was any material difference in terms of Government policy or concerns between the two situations.

52.Furthermore, given the general policy behind the existence of the MLB scheme in the first place, it could and would cause grave injustice to the family members of deceased landowners if pre-grant applications were to be limited only to those made by persons who were eventually successful in obtaining the grants.  For one can easily imagine situations where for absolutely innocent or fortuitous reasons, the person who made the pre-grant application would eventually fail, for example, by reason of death (as in the case of Tsang Kam Wah who died one year before Madam Vong’s attorney eventually got the grant in 1997) or other reasons, to successfully obtain the grant.  The net result of denying his or her pre-grant application would be to deny all the beneficiaries of the deceased landowner’s estate the benefit of a MLB.

53.In this context only, one may compare the situation faced by the Deceased’s family and the situations faced by the Deceased’s two deceased brothers’ respective families.  The Deceased brothers’ families all benefited from a MLB offer because their pre-grant applications were made by persons who eventually obtained the grants.  If the Government’s argument is correct, the Deceased’s family, on the other hand, would be deprived of the benefit of a MLB offer – regardless of the merits of its claim, only because the pre-grant application was made not by Madam Vong (or her attorney) – the widow of the Deceased, but rather by Tsang Kam Wah – the eldest son of the Deceased – who had the misfortune of dying one year before the grant was eventually issued.  What is the justification, one may legitimately ask, for these differential treatments to the members of the three families, in terms of either the wording of E-13, or the policy behind the MLB scheme in the first place or the policy behind the deadline and cessation of the MLB scheme?  I can find none, nor has any been suggested by counsel at the hearing or in the evidence filed on behalf of the Government in these proceedings.

54.The artificial distinction drawn by the District Lands Officer may not have involved a breach of the duty to act fairly if he subjectively (albeit erroneously) thought that the distinction was material and valid (R (British Sky Broadcasting Group plc’s application) v. Customs and Excise Commissioners [2001] STC 437), but it plainly vitiated the decision on the grounds of Wednesbury unreasonableness/irrationality and/or unwarranted departure from own policy (as properly interpreted).

Conclusion on deadline

55.I therefore conclude that Tsang Kam Wah’s pre-grant requests for an extension of time qualified as applications for MLBs under E-13 in the context of the 1992 deadline.  They have been adopted and ratified by the Applicant, as administrator of the Deceased’s estate.  In my judgment, the Applicant has beaten the deadline, in relation to those lots of land covered by the requests for an extension of time.

Land not covered by requests for extension of time

56.For those lots of land not covered by the requests, particularly those lots resumed in the 1981 resumption exercise, there was no pre-grant application.  They are therefore barred by the deadline.  In relation to this latter point, Mr Johnny Mok has made some arguments, apparently not with much confidence, that a failure to meet the deadline should not be fatal.

57.I disagree.  As observed above, there has never been any challenge by judicial review against the imposing of the deadline in the context of the MLB scheme.  Indeed there was full justification for imposing it.  The Heung Yee Kuk was responsible for publicising the deadline in the New Territories generally.  For those lots of land in respect of which no request for an extension of time was made, there is no question of any further requirement of specific notification to the estate or the next-of-kin.  For those lots in respect of which a request had been made, the question does not arise either because the request counted, in my judgment, as a pre-deadline application.

58.In my view, the wording of E-13 is plain enough.  Post-deadline applications “should be rejected”.  The policy behind the deadline supports such a stringent conclusion.  I reject any attempt to generalise, as it were, the requests for an extension of time made by Tsang Kam Wah in relation to some of the lots of land in question to cover all the affected lots of land.  There is no or insufficient evidential basis for such a submission. In particular, in relation to the 1981 resumption exercise, the available evidence fatally contradicts such an attempted generalisation, where Tsang Kam Wah expressly opted for making a claim for statutory compensation.  That, on the available evidence, he does not seem to have pursued the claim for statutory compensation is neither here nor there.  What is required is a pre-deadline application in relation to the lots of land affected by the 1981 resumption.  There was no such application in evidence before the Court; I am unable to infer any such application from the available evidence (including the previous requests made in relation to other lots of land) either.

59.I also reject any argument that the Government has in its 1998 reply or 2003 reply abandoned or not relied on the deadline as a ground for rejecting the applications.  The 1998 reply specifically denied that the Government had made any representation as to “any extension of time”.  The 2003 reply specifically adopted the 1998 reply as the Government’s position.  Moreover, the two replies must be read in context, and the context includes the 1996 reply which relied solely on the deadline as the answer to the 1996 application.  Furthermore, according to the evidence filed in these proceedings to further explain the 1998 and 2003 replies or decisions, the deadline point was indeed intended to be relied on by the Government.

60.For all these reasons, the deadline point is alive and fatal to the application for judicial review insofar as it relates to those lots of land not covered by Tsang Kam Wah’s requests for an extension of time.

Summary on deadline

61.Pausing here to summarise, in relation to those affected lots of land not covered by Tsang Kam Wah’s requests for an extension of time, the application for judicial review must fail on the ground that the 1992 deadline (which has never been subject to any challenge by judicial review) bars the 1998 and 2003 applications, which must be regarded as fresh applications in relation to those lots in question.  I  need go no further than that to reject this part of the application for judicial review.

62.However, in relation to those affected lots of land covered by the requests for an extension of time made by Tsang Kam Wah, I conclude that the Government was wrong in considering that the 1998 and 2003 applications were fresh applications made for the first time after the lapse of the 1992 deadline.  As a matter of substance, those two applications ought to have been regarded as no more than a continuation of the pre-deadline applications that had already been made by Tsang Kam Wah in relation to those lots in question.  Insofar as the 1998 and 2003 applications were rejected on the ground of deadline, they were wrongly rejected.

Substantive merits

63.But this does not by itself take the Applicant home.  For the Government has, according to the evidence filed in these proceedings, relied on another (alternative) ground for rejecting the two applications, namely the substantive merits of the applications.

64.Here, it must be pointed out again that E-13 was not a document in the public domain.  It was an internal Government document, setting out instructions on how applications for MLBs should be processed.  Amongst other things, it set out the exceptional circumstances under which MLBs might be issued.  By definition, only in exceptional circumstances should MLBs be issued after the lapse of the original Letter B offers, for otherwise affected landowners could simply adopt a “wait and see” attitude, only applying for a MLB when the property market should move in their favour.  This could not be allowed.  As already extracted above, E-13 required, in terms, that “the prolonged delay was wholly unavoidable”.  The requirement was understandable and made sense.  Whether there could be other formulas to screen out the undeserving cases or applications for MLBs is neither here nor there.  E-13 is not under challenge by judicial review; in particular, the requirement of “wholly unavoidable delay” is not under challenge as such.

Wholly unavoidable delay

65.When I say that the Government also seeks to justify the rejection of the 1998 and 2003 applications on the merits, I should elaborate on what I mean.  In the evidence filed, the Government seeks to justify the rejection on the ground that on the facts of the case, the prolonged delay was not “wholly unavoidable”.  Those two magic words were repeatedly used in the evidence filed to explain the decisions in 1998 and 2003.

66.On the other hand, it cannot be denied that in the 1998 and 2003 replies, which have been reproduced in full above, there was no express reference to the specific E-13 criterion of “wholly unavoidable delay”.  Rather the 1998 reply, which was specifically adopted in the 2003 reply, suggested that “it was incumbent upon the next-of-kin of the [Deceased] to exercise due diligence or to take any appropriate action in obtaining the necessary grant”.  Moreover, if one were to read the 1998 reply strictly, there was no allegation or conclusion by the Government that the next-of-kin of the Deceased did not exercise “due diligence” or take any “appropriate action” to obtain the necessary grant.  However, I am prepared to accept Mr YC Mok’s submission and read the letter written not by a lawyer, but by a District Lands officer in Shatin, with some latitude and “common sense”.  Adopting such a “robust” approach, I am further prepared to accept Mr YC Mok’s submission that the Government was implicitly saying in the 1998 reply that the next-of-kin had failed to exercise due diligence or take appropriate actions to obtain the grant, which reading of the reply would accord with the evidence filed by the Government in these proceedings to explain the decision-making process and reasoning behind the 1998 as well as 2003 decisions.  Mr Johnny Mok did not go so far in his submission as to invite this Court to ignore the evidence so filed on behalf of the Government insofar as it appears to be contradicted by the actual words used in the replies.

Wholly unavoidable delay vs. due diligence etc.

67.Be that as it may, Mr Johnny Mok has lost no time in pointing out to the Court the difference, and indeed serious difference between the requirement of exercising due diligence or taking appropriate actions (in the following judgment, for the sake of convenience, I would simply refer to these two collectively as the “due diligence” requirement) on the one hand, and the requirement of “wholly unavoidable delay” laid down in E-13 on the other – which latter requirement is said to have been applied by the decision-maker in reaching the 1998 and 2003 decisions, as per the evidence filed on behalf of the Government in these proceedings.

68.Here, Mr Johnny Mok referred this Court to a number of authorities and submitted that due diligence is not a counsel of perfection, it is “not the doing of everything possible, but the doing of that which, under ordinary circumstances and having regard to expense and difficulty, can reasonably be required”; or putting it in another way, “due diligence” is the “converse of negligence”; and the exercise of “due diligence” is “equivalent to the exercise of reasonable care and skill”.  See R v. Mulitex (Export) Ltd [1996] 4 HKC 422; HKSAR v. Leighton Contractors (Asia) Ltd [2000] 1 HKLRD 787; Tesco Supermarkets Ltd v. Nattrass [1972] AC 153 and The Eurasian Dream [2000] 1 Lloyd’s Rep 719.  Counsel argued that the “wholly unavoidable” delay test is a much more stringent criterion than the due diligence requirement.

69.Furthermore, counsel referred to other cases where the Government has apparently adopted “inexcusable” or “culpable” delay as the criterion.  Again counsel submitted that either would be a much less demanding requirement than the wholly unavoidable delay test under E-13.

Counsel’s respective arguments

70.Mr Johnny Mok therefore mounted a number of arguments against the Government’s so-called determination of the 1998 and 2003 applications on their merits.  In gist, he submitted that E-13 was not within the public domain.  The wholly unavoidable delay requirement was never known to the public or in particular the Applicant in the first place.  When the 1996 application was made, it was simply rejected on the ground of deadline.  The wholly unavoidable delay criterion was not mentioned at all.  Being ignorant of the criterion, the lengthy letter of application constituting the 1998 application did not address the question of delay at all, still less from the angle of wholly unavoidable delay or anything along those lines.  The 1998 reply given by the Government did not mention the wholly unavoidable delay criterion either.  Rather it mentioned a different criterion, namely the due diligence requirement (used as a shorthand here as explained above).  Furthermore, it did not, in terms, say that the Applicant had failed to exercise due diligence, nor did it, in terms, use it as a ground for refusing the 1998 application.  Being still ignorant about the wholly unavoidable delay criterion, the Applicant, following counsel’s advice, embarked on litigation with the Government based on the alleged oral agreement reached in 1991 by Tsang Kam Wah with the Government.  The Applicant did not seek to come back to the Government to explain about the delay, still less to establish due diligence and even less, to show wholly unavoidable delay – as to which the Applicant was totally ignorant.  It was only in 2003, after a change of lawyers, that the new solicitors (or counsel) began to realise the significance of the reference to due diligence and sought to demonstrate that the Applicant had exercised due diligence in applying for the grant in the 2003 application. Yet, as has since been disclosed by the Government in its evidence filed in these proceedings, the Government did not process the 2003 application by reference to the due diligence requirement; rather it considered and rejected the 2003 application by reference to the wholly unavoidable delay criterion – which was not known to the Applicant even up to that stage.

71.Counsel argued that all this was wholly unfair to the Applicant.

72.Mr YC Mok essentially argued on behalf of the Government that the facts in the present case were so clear that there had been, in his words, “undue” or “unexplained” delay in the application for grant, so that no matter what test, requirement, criterion or label one should use in assessing the applications on their merits, the applications were doomed to failure.  He relied on the evidence that had been filed in these proceedings, in particular the evidence of the officer handling the two applications who set out his views on the delay in question and why it was not “wholly unavoidable”, in support of his sweeping submission in relation to the prolonged delay.

73.More importantly, Mr YC Mok further submitted that the Court must not forget the context in which all this was being argued, namely the MLB scheme which was not statutorily underpinned.  It was a voluntary and indeed ex gratia scheme formulated and implemented by the Government to cater for some exceptional and really deserving cases where it was difficult if not impossible for the affected landowners or their family members to accept the Letter B offers – which were themselves made pursuant to a voluntary scheme and in parallel to the statutory compensation scheme under the resumption legislation – which latter scheme was equally not statutorily underpinned.  Counsel urged upon the Court that one is not concerned with a right, entitlement or privilege here.  One is merely talking about an ex gratia discretion, offer or payment (bearing in mind the redemption legislation enacted in 1997) here.  Relying on de Smith, Woolf and Jowell, Judicial Review of Administrative Action (5^th ed.) para. 19-007 (footnote 21) and an obiter observation by Lord Golf in Woolwich Equitable Building Society v. Inland Revenue Commissioners [1993] AC 70, 170H to 171D, counsel argued that in the absence of bad faith, the decision made by the Government under the MLB scheme refusing the two applications on their merits are not amenable to judicial review at all.  A variation of the same theme is that the Court should apply a less stringent reviewing standard in relation to this ground (i.e. the substantive merits of the applications) relied on by the Government to reject the two applications.

74.Further, whilst counsel did not really seriously dispute Mr Johnny Mok’s submission that at least as a matter of legal usage, due diligence bears a different meaning from a criterion requiring wholly unavoidable delay, he argued that one should adopt a common sense approach in reading the words used by the District Lands officers in implementing E-13 and their understanding of the requirement of wholly unavoidable delay.  Counsel stopped short of saying that to the District Lands officers, criteria or requirements that were based on wholly unavoidable delay, due diligence, inexcusable or culpable delay, and undue or unexplained delay (as used by counsel himself) all meant the same thing.  He did not.  Rightly so – the evidence filed on behalf of the Government would not permit him to so suggest.

Amenability to judicial review

75.I agree that I must fully bear in mind the context as submitted by Mr YC Mok, which must affect the standard of judicial review.  Beyond that, I reject his argument.  In other words, I disagree that in the absence of bad faith, the 1998 and 2003 decisions are not amenable to judicial review.  For one, the development of the law on substantive legitimate expectation in Hong Kong, as has been explained in the Court of Final Appeal decision of Ng Siu Tung v. Director of Immigration (2002) 5 HKCFAR 1, has the effect of affording much protection based on public law to expectations or understandings that fall short of a legal right or entitlement (see paras. 87 to 99 at pp. 40B to 43D and paras. 348 to 374 at pp. 104B to 112J).

76.I do not need to rule definitely that the present case is a case of substantive legitimate expectation.  Certainly the criterion of wholly unavoidable delay was unknown to the Applicant at all material times, and therefore there can be no question of any substantive legitimate expectation in terms of that criterion.

77.However, it may be argued that in the 1998 reply by the Government, the reference to due diligence constituted a representation to the Applicant that due diligence was the applicable criterion in an application of the type in question.  It was relied on by the Applicant in his 2003 application.  Arguably, all this gave rise to a substantive legitimate expectation that in processing the 2003 application, the due diligence requirement would be adopted as the criterion to assess the application.  In this sense, arguably the case involves a substantive legitimate expectation.

78.However, as I say, regardless of whether in the present context, one is dealing with strictly speaking a case of substantive legitimate expectation, the general thrust of the development of the law in Hong Kong as explained in Ng Siu Tung is that these expectations or understandings that fall short of a strict legal right or entitlement are protected by the public law in manners that are similar to that enjoyed by legal rights and entitlements, save that the protection afforded is subject to overriding public policies or good reasons (para. 92 at p. 41D/E and para. 364 at p. 109C to D).

79.For these reasons, I do not accept that the two decisions in question, albeit made under the MLB scheme which was ex gratia in nature, are not amenable to judicial review in the absence of bad faith – as to which there is of course no suggestion whatsoever. 

Difference between wholly unavoidable delay and due diligence etc.

80.Furthermore, having fully borne in mind the ex gratia nature of the MLB scheme and having adjusted the reviewing standard accordingly, I am unable to accept Mr YC Mok’s various arguments on behalf of the Government.  On the evidence, I am unable to accept that there was no material difference between wholly unavoidable delay, due diligence, inexcusable or culpable delay, or undue or unexplained delay, whether in terms of meanings, or in terms of their applications.  On the evidence, on its proper reading, wholly unavoidable delay in E-13 does not mean due diligence, etc.  Again on the evidence, I do not accept that as implemented, wholly unavoidable delay required by E-13 means due diligence, or the absence of inexcusable or culpable delay, or undue or unexplained delay.  Furthermore, as has been admitted by the Government in the evidence filed on its behalf in these proceedings, the criterion used by the Government in considering the 1998 and 2003 applications was the one based on E-13, namely wholly unavoidable delay.

Represented criterion not used

81.As Mr Johnny Mok has submitted, this is wholly unfair to the Applicant, not only because the Applicant was completely in the dark in relation to this criterion of wholly unavoidable delay, but also because the Applicant had been led to believe by the 1998 reply that the applicable criterion was due diligence (i.e. due diligence or taking of appropriate actions), which as I have already concluded, is quite different from the one based on wholly unavoidable delay.  The consequence was that in the 2003 application, the Applicant’s focus was on establishing the exercise of due diligence and the taking of appropriate actions to obtain the grant.  As has been demonstrated by the evidence that has been filed by the Applicant after the full picture has been made known by the Government in the evidence filed in these proceedings, the Applicant would have much more to say on the delay and the reasons thereof if he had known from the beginning that the applicable criterion was one of wholly unavoidable delay.

Duty to act fairly – opportunity to address concerns

82.Furthermore, I accept Mr Johnny Mok’s argument that leaving all this aside, given that the criterion of wholly unavoidable delay was – to the knowledge of the Government – never made known to the Applicant, after the receipt of the 2003 application, which was scrutinised by the Government according to the wholly unavoidable delay criterion, and when the Government had specific concerns in mind based on this criterion as to whether the prolonged delay was wholly unavoidable – which if unaddressed would lead to the rejection of the application, fairness required the Government to at least offer the Applicant a chance to address those specific concerns.  So for instance, taking the specific concerns raised in the evidence filed by the Government in these proceedings as an example, these concerns were never communicated to the Applicant prior to the rejection of the 2003 application, and the Applicant never had an opportunity, even if he could, to properly answer the concerns.  When the criterion of wholly unavoidable delay was not known to the Applicant at all, coupled with the previous representation that due diligence was the relevant requirement, the situation was, in my view, wholly unfair to the Applicant.

83.Here I am not for one moment suggesting that there should be an open-ended invitation for answers and submissions.  Nothing of that sort is required by the principle of fairness.  What I am saying here is that at the very least, the Government ought to have made known to the Applicant the specific concerns that it had in mind after reviewing the application and offered the Applicant an opportunity to address those concerns.  It was unfair to the Applicant to deny him such an opportunity and reject his application in those circumstances.

84.In R.  v. Secretary of State for the Home Department, Ex parte Fayed [1998] 1 WLR 763, the English Court of Appeal had to deal with section 44(2) of the British Nationality Act 1981 in relation to the refusal of the naturalisation applications of two brothers without reasons given.  The court held that whilst section 44(2) relieved the Secretary of State from the obligation of giving reasons in respect of decisions made in the exercise of his discretion, he was not relieved of the obligation to act fairly.  The majority of the court (Lord Woolf and Phillips LJ, Kennedy LJ dissenting) held that in the context of that case fairness required that, before reaching his decision, the Secretary should inform an applicant of the nature of any matters weighing against the grant of the application and afford him an opportunity of addressing them.  The court concluded that since the Secretary had failed to adopt such a course, his decisions had been reached unlawfully.  (Kennedy LJ, dissenting, reached his minority decision on the construction of the wording of section 44(2) which in his view relieved the Secretary from his common law duty to indicate to an applicant at an earlier stage why he was minded to refuse his application.)  In so deciding, the court referred to (at pp. 766D-H and 787A-D) a well-known passage from Lord Mustill’s judgment in R. v. Secretary of State for the Home Department, Ex parte Doody [1994] 1 AC 531, 560D-G:

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

85.The Court of Appeal also referred to (at pp. 776B/C-F and 786C-H) what Lord Denning had observed in R. v. Gaming Board for Great Britain, Ex parte Benaim and Khaida [1970] 2 QB 417, 430G/H and 431F-G:

“…the board have a duty to act fairly.  They must give the applicant an opportunity of satisfying them of the matters specified in the sub-section.  They must let him know what their impressions are so that he can disabuse them.  But I do not think that they need quote chapter and verse against him as if they were dismissing him from an office, as in Ridge v. Baldwin [1964] A.C. 40; or depriving him of his property, as in Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180. …

… without disclosing every detail, I should have thought that the board ought in every case to be able to give to the applicant sufficient indication of the objections raised against him such as to enable him to answer them.  That is only fair.  And the board must at all costs be fair.  If they are not, these courts will not hesitate to interfere.”

86.I have fully borne in mind the fact that in the present case, I am not concerned with any statutory scheme or entitlement.  As Mr YC Mok has urged upon this Court, the MLB scheme was ex gratia and voluntary in nature.  Certainly one is not concerned with issues like naturalisation here.  On the other hand, it cannot be denied that from a larger historical and government administrative perspective, the Letter B scheme and the supplementary MLB scheme did feature as an essential or important part of the Government’s land use and resumption policy in the New Territories back in the 1960s through early 1990s (bearing in mind in particular the unique situation of the New Territories), regardless of the fact that unlike the statutory compensation scheme under the resumption legislation (which is applicable to the whole of Hong Kong), the two schemes lacked statutory underpinning, and thus attracted the labels “ex gratia” and “voluntary” in counsel’s submission.  In my judgment, land resumption and compensation are almost by definition serious and important matters, and whilst the reviewing standard must be adjusted according to the context,  I do not think the present context is so trivial or unimportant that the duty to act fairly should be ignored or watered down to insignificance.

87.The present case is a strong case for the existence of a duty to inform the Applicant of the specific concerns that the Government had in mind after studying the 2003 application and that were weighing against the grant of the application and to afford him an opportunity of addressing them.  As I said, the criterion of wholly unavoidable delay was never made known – to the knowledge of the Government – to the Applicant who was in that sense making his application in the dark.  Secondly, the due diligence requirement had been represented to the Applicant in the 1998 reply which could reasonably be expected to have coloured the application and approach of the Applicant in his 2003 application and affected his judgement on what submissions and materials would be required in support of his application.

No prejudice?

88.Mr YC Mok further argued that all this does not matter.  He submitted that on the materials available, regardless of what test is or was used, and irrespective of whether an opportunity is or was offered, there is and was no prospect of the Applicant being able to adequately address all the concerns in question, or otherwise satisfy the applicable test.  In short, this is a no prejudice argument.

89.Judicial review being a discretionary remedy, the courts have long recognised that they may refuse to grant any relief if despite the presence of a technical breach of duty or public wrong, an applicant has not suffered any real prejudice.  In the context of a substantive legitimate expectation, both the majority and the minority of the Court of Final Appeal have expressly and specifically recognised this principle of no prejudice (or the “inevitability test”) in Ng Siu Tung:para. 98 at p. 42F/G to I/J and para. 352 at p. 105E to G/E.  In the case of a breach of procedural fairness, the courts, for example the Court of Appeal in Leung Fuk Wah v. Commissioner of Police [2002] 3 HKLRD 653, have recognised and indeed in appropriate cases applied the doctrine and refused relief on the ground of no real prejudice.  However, as has been made abundantly clear by both the Court of Final Appeal and the other courts, it is only in wholly exceptional circumstances and when the court can be sure that the applicant has suffered no real prejudice from the breach or public wrong that it may exercise its discretion and refuse relief.  I have myself emphasised this in a decision of mine involving a breach of procedural duty, namely Chu Ping Tak v. Commissioner of Police [2002] 3 HKLRD 679.

90.On the facts and evidence that has been placed before the Court – and quite plainly the burden is on the Director to persuade the Court – I am unable to conclude with any degree of confidence that the Applicant has not been prejudiced.

91.In conclusion, insofar as this case may be classified as a case of substantive legitimate expectation based on the 1998 reply that due diligence was the applicable criterion, the Government has, by adopting the wholly unavoidable delay requirement, departed from its previous representation, in the absence of any overriding public policy justification or good reasons (none was suggested), and without taking into account the legitimate expectation of the Applicant.  In any event, regardless of any substantive legitimate expectation or the breach thereof, in failing to afford the Applicant an opportunity to address the specific concerns that the Government had in mind after reviewing the 2003 application that tended to weigh against the application before reaching a final decision on the application, the Government breached its duty to act fairly and the decision thus reached was vitiated.  Furthermore, the Court is unable to conclude on the materials before it that the public wrong and/or breach of duty did not cause the Applicant any real prejudice or entail a risk of the Applicant suffering some real prejudice.  In those circumstances, the suggested ground for denying the Applicant relief on a discretionary basis does not exist.

Conclusion on substantive merits

92.For these reasons, the alternative ground or reason relied on by the Government to reject the 2003 application is also open to challenge by way of judicial review.

Effect of the 1996 application/decision and/or the 1998 application/ decision on the 2003 application

93.Having reached such a conclusion and since the challenge in relation to the 2003 decision is the Applicant’s primary challenge, subject to the further matters that I am going to deal with in the remainder of this judgment, there is really no need to determine whether the 1998 application has remained undetermined (as is argued by the Applicant), still less the question of whether, assuming that the 1998 application has been determined, that determination is open to challenge – on the simple ground that the application for judicial review, as amended, does not include such a challenge.

94.Mr YC Mok submitted, on behalf of the Government, that the judicial review application against the 1998 or 2003 decision is “otiose” and meaningless given the 1996 decision rejecting the 1996 application which is not under challenge.  In other words, counsel essentially submitted that the 1996 determination bars any subsequent application or attempt to re-open the matter.  Even if the subsequent decisions could be quashed, counsel submitted, the 1996 decision refusing the issue of any MLBs would still stand, and no relief could be granted in favour of the Applicant.

95.I have no hesitation in rejecting the argument.  The 1996 decision will of course stand, regardless of the outcome of these proceedings.  But it will only stand by itself and for what it is worth.  It was a decision rejecting the 1996 application.  It was not a decision to reject the 1998 or more importantly the 2003 application.

96.Here, it must be remembered that the whole MLB scheme was not statutorily underpinned.  There was no legal or binding framework governing and regulating repeated applications, reviews and “appeals”, whether on new or fresh grounds or not.  It was all up to the Government to decide whether to entertain repeated applications, and to determine (subject to normal public law requirements) under what circumstances a second application, a review application or an “appeal” would be entertained.  But in my view, once the Government decided to entertain a second application (or for that matter, a subsequent application) on its own merits, instead of rejecting it as a repeated application not justified by any exceptional circumstances, the decision reached after reconsideration would be amenable to judicial review.  Here, I would respectfully adopt what Keith J (as he then was) has observed in Hong Kong and China Gas Co. Ltd v. Director of Lands [1997] 3 HKC 520, 523H-524D:

“In this application for judicial review, the company challenges the decision not to extend the lease.  The decision which is actually being challenged is the decision of the Director of Lands communicated to the company’s surveyors by the letter of 16 June 1997.  Initially, I had my doubts as to whether it was appropriate for the company to be challenging that decision.  The decision was, at first blush, merely confirmation that the earlier decision communicated to the company in January 1996 would stand.  I suspected that the reason why the company was challenging the later decision only was to get round the fact that the company was out of time for any application to review the earlier decision.

However, I have been persuaded that it is appropriate for the company to be challenging the later decision.  Although the later decision had the effect of confirming the earlier decision, it can properly be said to have superseded and replaced it.  That is because it followed a reconsideration of the issue by the Director of Lands (rather than by the officer who made the earlier decision who was a subordinate officer in the Regrant Unit) after the views of officials both within the Lands Department and in the Electrical and Mechanical Services Department had been sought.  If a public officer decides to reconsider an earlier decision made by him or his subordinate, the decision made following that reconsideration is amenable to judicial review even if it amounts to the confirmation of the earlier decision.  That was accepted as being correct in relation to the reconsideration of issues of policy in McCarthy & Stone (Developments) Ltd v Richmond-upon-Thames London Borough Council [1992] 2 AC 48, [1991] 4 All ER 897.”

97.On the evidence that has been filed on behalf of the Government in these proceedings, it is plain that the Government has entertained the 1998, and more importantly, the 2003 application on their merits.  It carried out a reconsideration of the case in response to each application.  Plainly it did not reject the two applications on the ground that they were repeated applications or that there was a lack of any exceptional circumstances to justify their making.  On this last point, I should, for the sake of completeness, point out that the 1998 application differed quite substantively from the 1996 application in that the 1998 application relied on materials and arguments wholly untouched on in the 1996 application; and perhaps more importantly, that the 2003 application dealt with the question of delay in the context of due diligence, which was only represented to the Applicant in the 1998 reply and which was wholly foreign to the 1996 application and reply.

98.In any event, on the facts, I do not agree that the 1996 decision, or for that matter the 1998 decision (if a decision has indeed been made by the Government, contrary to the Applicant’s submission) debars a challenge to the 2003 decision or the grant of relief upon a successful challenge against the latter decision.

Deadline revisited

99.At this juncture, it is convenient to deal with one question that could have been dealt with in the earlier part of this judgment: Did the 1996 application/decision or the 1998 application/decision render the 2003 application an entirely fresh application made post-deadline, which was separate from the requests made by Tsang Kam Wah for an extension of time back in the 70s?  In my judgment, both the 1998 and 2003 applications were premised on, amongst other things, Tsang Kam Wah’s applications for an extension of time made back in the 70s.  In all fairness, they should be treated as a continuation of those pre-deadline applications  after the grant was eventually obtained in 1997, as per the standard replies given by the Government in the 70s to the effect that after the obtaining of the grant, the cases would be reconsidered.

100.The making of the 1996 application and the rejection thereof do not affect the position at all because the 1996 application was never expressed in terms or in substance as a continuation of the requests for an extension of time made by Tsang Kam Wah in the 70s.  In any event, it was made before the obtaining of the grant in 1997.

101.As for the 1998 application, regardless of whether it resulted in a decision or a non-decision – on which I need express no definite view, it does not, in my judgment, stand in the way of the 2003 application as a continuation of the requests for an extension of time made by Tsang Kam Wah back in the 70s.  This is because those requests having been made prior to the deadline, even if the 1998 application had resulted in a determination rejecting the requests for an extension of time as continued by the 1998 application, the 2003 application, in all fairness, was merely an application for a review or reconsideration of the whole case, founded on the original requests made by Tsang Kam Wah.  It was not an entirely new or independent application made for the first time after the lapse of the deadline as such.  Viewed in that light, in my judgment, it is only fair to regard the 2003 application as a continuation of the pre-deadline requests for an extension of time made by Tsang Kam Wah. The deadline does not therefore affect the 2003 application, regardless of whether the 1998 application resulted in a determination or not.

102.In any event, in my judgment, on a proper reading of E-13 and upon the underlying policy of the deadline, once a pre-deadline application had been made (thereby making known to the Government its potential liability or exposure), a post-deadline application which somehow should be treated as a separate application from the pre-deadline application should not be defeated by the mere fact that it was a fresh application made post-deadline, particularly when the Government was prepared to entertain the post-deadline application and conduct a full reconsideration of the case –  which was what happened to the 2003 application.

103.I say all this for the sake of completeness only.  In fairness to Mr YC Mok, he never raised any such arguments in his submission for the Government in relation to the deadline.

Delay and relief

104.Mr YC Mok argued on behalf of the Government that there has been delay in the present case and the grant of relief in favour of the Applicant would be detrimental to good administration, relying on section 21K(6) of the High Court Ordinance (Cap. 4).  Counsel further argued that, quite apart from section 21K, judicial review being a discretionary remedy, the Court is entitled to and indeed should take into account all relevant considerations, including any relevant delay, in deciding how it should exercise its discretion in the context of relief.

105.So far as section 21K(6) is concerned, the sub-section refers to the situation where the court “considers that there has been undue delay in making an application for judicial review”.  It plainly does not apply to the present case so far as the challenge against the 2003 decision is concerned, for the simple reason that it was made promptly and within time.  There is no question of any undue delay in launching the application for judicial review.  For that reason alone, section 21K(6) does not apply.

106.On the wider perspective of delay in general, if I have not misunderstood counsel’s submission, he relied on the Applicant’s failure to mount a challenge by way of judicial review against the 1998 reply and the delay of almost 5 years after the 1998 reply to make the 2003 application which resulted in the decision under challenge.

107.The 1996 application and decision can be disregarded here because it was only in 1997 that the Applicant successfully obtained the grant of representation.  No criticism was raised in relation to his only making the second application in 1998 although the grant was obtained in 1997.  Rightly so.

108.It is not entirely fair or correct to say that the Applicant did nothing to challenge the position of the Government following the 1998 reply.  As mentioned in the earlier part of this judgment, soon after the 1998 reply, the Applicant, following the advice of his then counsel, decided not to mount any challenge by way of judicial review and instead commenced the writ action based on the alleged oral agreement.  That action has never been adjudicated upon and I cannot say that the case based on the alleged oral agreement is wholly unarguable; at least it does not seem to have attracted any application to strike out on that ground.  The action has been overtaken by subsequent events and has thus gone to sleep after a change of lawyers and the making of the 2003 application.  But the very existence of the action prior to the emergence of the 2003 application must have served to keep the Government on alert that the dispute regarding the subject lots has not been over yet.

109.Furthermore, the whole complexion of the situation changed because the Government was, for reasons of its own, prepared to entertain the 2003 application on its merits and conduct a full reconsideration of the case, as per the evidence filed by the Government in these proceedings.  It resulted in a decision that is, as per my judgment, liable to be challenged by way of judicial review.

110.In those circumstances, I do not consider that there has been any undue delay between 1998 and 2003; in any event, I am not satisfied that any such delay is sufficiently culpable to merit the refusal of relief notwithstanding the presence of a public wrong and/or a breach of duty, and the mis-application of the deadline.

111.I have borne in mind what Stock JA has said in Lo Siu Lan v. Hong Kong Housing Authority, CACV 378/2004 (17 December 2004), para. 39, regarding the effect of a failure to challenge earlier decisions although a later decision is still amenable to be challenged by judicial review on the question of granting leave and on the further question of relief if leave is granted.

112.On the facts of the present case, as I said, I am not persuaded that relief (that I have in mind) should be refused on this ground.

Floodgate argument

113.Here, for the sake of completeness, I should record that I have specifically borne in mind the alleged potential implications to the Government if the Court should accede to the present application for judicial review.  In short, this is a floodgate argument run by the Government.  It says that if this type of challenges is permitted, it would expose the Government to potential liability of an astronomical magnitude (in the estimated region of $4.743 billion).  I am not sure how accurate the estimate is, but I am unimpressed by the floodgate argument.  I do not accept that I would be opening a floodgate.  This case turns on very peculiar facts – in particular as per my decision above, there have been pre-grant/pre-deadline applications made.  Included in the Government’s astonishing estimates of potential liability are, according to my reading of the evidence, many cases where there have not been made any pre-deadline applications.  As I have mentioned above, in those situations, the deadline would be a complete answer to any attempt to make a belated application under the MLB scheme.

Relief

114.As to the relief to be granted, Mr Johnny Mok has at the outset of his submission limited his case to an order of certiorari to bring up and quash the 2003 decision and an order of mandamus requiring the Director to reconsider the 2003 application on its merits.  I am prepared to grant relief along those lines.  As I do not see fit to make any final determination on the non-decision point relating to the 1998 application, and given that the relief that I have indicated above would be sufficient for the Applicant’s purpose, there is no question of my granting any relief in relation to the 1998 reply.

115.In relation to the reconsideration of the 2003 application, all I would do in addition is this: I would direct the Director to reconsider the application in accordance with the wholly unavoidable delay criterion set out in E-13 as it has been implemented throughout the years.  The italicised phrase is an important qualification because one is not concerned so much with what the internal policy document says as such, but rather how it has been implemented throughout the years, i.e. throughout the time when the MLB has been in operation.  If it has been implemented as what the words “wholly unavoidable”, prima facie, mean, it should be so applied in the reconsideration of the Applicant’s 2003 application.  If it has been applied with some latitude, the same latitude (but no more) should be afforded in relation to the Applicant’s application.  As to what latitude, if any, it was, it would be a question of evidence, and in the present case, I simply do not have sufficient materials to reach any conclusion.  For this reason, I reject Mr Johnny Mok’s submission that I should direct the Government to adopt the standard of due diligence, taking of appropriate actions, or inexcusable or culpable delay, as the applicable criterion.  Although there has been some evidence regarding all these different criteria in the materials before me, it must be remembered that one is not here concerned with only the five or six examples relied on by the Applicant in support of his application for judicial review; one is concerned with, in the present context, how the wholly unavoidable delay criterion has been implemented and applied by the Government throughout the years, both before and after the expiry of the deadline, when the MLB scheme was in place.

116.The Government cannot be held to the represented criterion of due diligence in the reconsideration directed by this Court of the 2003 application.  Substantive fairness in the present case does not require that.  Fairness only requires that the Applicant be duly informed of the reversion to the prescribed criterion in E-13 (the unavoidable delay requirement) and be given an opportunity to make further representations and submit further materials in support of his 2003 application by reference to the wholly unavoidable criterion.  Further, in line with the duty to act fairly, the Government should afford the Applicant an opportunity to address any specific concerns that the Government, after receipt of all further representations and materials from the Applicant, may entertain and that may be weighing against the grant of the application.  As indicated above, one round of opportunity should satisfy the requirement of the duty to act fairly.

117.Of course, the relief is only limited to those lots of land covered by the requests for an extension of time made by Tsang Kam Wah back in the 70s.  As I said, for those lots of land that were not so covered, the application for judicial review in relation to them fails because of the deadline.  And, of course, they do not attract any relief.

118.I would leave it to the Applicant to prepare a draft order based on my judgment, which should first be sent to the Respondent for written comment within seven days, and then sent together with any such comment to the Court for determination (in case of disagreement) and approval. 

Forensic points

119.Finally, I should register this: In the very skilful submissions of counsel on both sides, many points have been made, some of which were made, with respect, for purely forensic purposes.  In reaching my decision in this case, I have not been affected at all by any sympathy that the Applicant would like the Court to have towards the Deceased’s family on a superficial consideration of the differential treatments that had been received by that family and the families of the two deceased brothers of the Deceased.  Likewise, I have not been affected by the huge difference between the estimated cash compensation payable to the estate if the application is eventually successful and the much smaller amount (but still a huge sum for most people) payable to the estate by way of ex gratia payment if the application is not successful.  On the question of a huge difference, I would only observe that the ex gratia payment in excess of $2 million may not be an unthinkable amount nowadays, but it should be remembered that it has been payable to the estate since the mid 70s to early 80s but there was simply no one lawfully entitled to accept the same on behalf of the estate.  A sum of over $2 million back in the 70s and early 80s was from any angle a huge sum in those days.  And who knows, if the estate had been able to receive it back in the 70s or early 80s, and if it had been properly invested, how much it would have amounted to today?  Or how would that amount compare with the estimated cash compensation that the Applicant is seeking to obtain now under the redemption legislation?  As I say, all this is very interesting, but I have not allowed it or the implications of my decision, one way or another, to influence my eventual determination of this case.

120.Likewise, the Government’s side has referred me to an agreement whereby Madam Vong has apparently agreed to sell the estate’s interest in the MLB application to a company belonging to the Applicant, Madam Vong’s attorney, for a certain consideration, which to some extent is dependent on the success of the application for the issue of MLBs or payment of cash compensation.  It has not been suggested that there is anything illegal, or morally wrong, with such an agreement. It is of no concern to the Court whether the present application for judicial review has been prosecuted for the benefit of Madam Vong or her attorney.  Nor is it really relevant to the Government’s floodgate argument that some of these potential cases may involve outside commercial interests in them.

121.As I say, all these, and there were others, were forensic points.  Unless they were relevant to the substantive matters that the Court had to deal with, they were irrelevant and were ignored.

Costs

122.I make a costs order nisi that that the Respondent pay to the Applicant the costs of these proceedings, with a certificate for two counsel (for the avoidance of doubt), to be taxed if not agreed.  Unless either party should apply to vary the order within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period.

123.Although the relief granted only relates to those lots of land covered by the requests for an extension of time made by Tsang Kam Wah, taking a global view of the disputes between the parties in these proceedings and the issues argued by counsel at the hearing, the Applicant has been substantially successful in his application for judicial review.  In those circumstances, I have not seen fit to apportion the costs in any way against the Applicant in my costs order nisi.

124.It only remains for me to thank counsel on both sides for their very helpful assistance.

Mr Johnny Mok and Mr PY Lo, instructed by Messrs Tsang, Chau & Shuen, for the Applicant

Mr Mok Yeuk-chi and Mr Jin Pao, instructed by the Secretary for Justice, for the Respondent

[1]  They were Lot 395E/2 in DD184; Lot 331C in DD184; Lots 16, 18E and 18H in DD185; Lot 286D in DD184; Lot 286B/RP in DD184; Lots 365B and 367 in DD183; Lot 525C in DD179; Lots 875 RP, 902, 1002, 1013, 1019, 1024 and 1026 in DD189; and Lots 441 and 442 in DD180.