Yeung Kwai Yan v. Director of Lands

HCAL 34/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 34 OF 2008

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Before:  Hon A Cheung J in Court

Date of Hearing:  9 May 2008

Date of Judgment:  9 May 2008

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J U D G M E N T

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1.This is an application for leave to apply for judicial review.  The applicant wishes to challenge the decision of the Director of Lands to terminate a tenancy agreement dated 24 November 1994 between the Government as landlord and the applicant as tenant of a piece of land in Sai Kung for residential use and to require the applicant to deliver up vacant possession of the land to the Government on 17 April 2008.

2.“Arguability” is the test to apply for granting leave – only a reasonably arguable claim which enjoys realistic prospects of success on the materials presented before the court by an applicant should be given leave to proceed.  Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.

3.Applying the test to the matters alleged in the Amended Form 86A and the evidence placed before the Court in support of the application, I am not satisfied that this is a public law matter.  It is essentially a private law dispute between the applicant as tenant and the Government in its private capacity as lessor (on behalf of the State).

4.On the evidence presented by the applicant, the present case is indistinguishable from Hang Wah Chong Investment Co Ltd v Attorney General [1981] HKLR 336 and Canadian Overseas Development Co Ltd v Attorney General [1991] 1 HKC 288.

5.A blind-recital of some general statements of principle enunciated in The Hong Kong & China Gas Co Ltd v The Director of Lands [1997] HKLRD 1291, 1295-1296 does not take the applicant’s case anywhere (see paras 41 & 42 of the Amended Form 86A).  Those statements were made in the context of the facts in that case, which involved the Director of Lands’ refusal to extend the lease of a public utility company of a piece of land in Tsuen Wan for use as an emergency and maintenance depot.

6.Completely different from the factual scenario in The Hong Kong & China Gas Co Ltd, there is simply no evidence in the present case to support the bare allegation that “the Director of Lands was required to balance competing interests in the context of the extension of a number of Government leases in the New Territories … [so that] the Government’s decision not to extend the lease was made in the exercise of its public functions and amenable to judicial review” (para 42, ibid).  The alleged “competing interests” are not identified or substantiated by evidence.  Nor is it otherwise shown what public functions the Director of Lands was required to perform when making the decisions under challenge.

7.The serious allegation of bad faith (paras 39, 43 and 44 of the Amended Form 86A and paras 36, 39 to 43 of counsel’s written submission) is not supported by any substantive evidence, despite the Court’s invitation to the applicant to put in such evidence.  In any event, the matters alleged do not amount to a case of bad faith.  The analogy with taking a bribe is wholly bad and ought never to have been made (para 43 of counsel’s written submission). 

8.The applicant’s attempted reliance on bad faith to bring this case within the public law domain must fail.

9.If the applicant considers that she has grievances that need be redressed, it should be pursued under private law.

10.The application for leave is refused with no order as to costs.

Mr Albert Cheung instructed by Wong, Fung & Co, for the applicant