Lai Pun Sung v. The Director of Agriculture, Fisheries and Conservation and Another

HCAL83/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 83 OF 2009

_______________

BETWEEN

_______________

Date of Hearing:  13 August 2009

Date of Judgment:  13 August 2009

_______________

J U D G M E N T

_______________

1.Having heard submissions from counsel, with the benefit of having some clarification about the real point in dispute, I have to refuse leave to judicial review.  As I see it, the crux of the matter is section 15 of the Country Parks Ordinance Cap.208.  I shall assume, for the present purpose, that if I can be satisfied that there is a reasonable prospect of success in terms of the merits of the argument put forward to challenge the decisions, there would not be problem about standing and the timing of the application.

2.But, as I see it, there is no reasonably arguable point of challenge here.  Mr Chow, appearing for the Applicant today, confirmed that the challenge is basically about the construction of the ordinance, in particular when consideration is given for replacement or amendment of the map for the country park, whether that can be undertaken for the purpose of switching land previously designated as country park to other land-use like landfill purposes in the present case.

3.Mr Chow submitted that because of the scheme of the ordinance an area can only be excised pursuant to section 15 when the land designated is no longer suitable for country park use by reason of contamination.  But if one looks at section 15(1) of the ordinance, the legislation does not provide that sort of restriction in terms of the purpose for which replacement or amendment can be made.  In the present case I do not need to consider the extent to which consideration should be given by the Chief Executive in Council as to whether there are other alternatives apart from choosing this particular piece of land for that alternative use.  Mr Stock accepts that if one just excised the piece of land for a new use without good reason that might be open to challenge on the ground of Wednesbury unreasonableness, or maybe in terms of more modern language of judicial review:  the solution in terms of opting for the switching of the land from country park use to another public use must be proportionate to the problem.  As Mr Stock submitted, the challenge of the Applicant in the present proceedings is not based on the ground that the switch of the use for the land to landfill site is not a proportionate response and we do not have the evidence in that regard. 

4.Therefore, the only point that I need to consider in the present proceedings is whether, assuming it can be demonstrated or it has been demonstrated that there is an overriding need for use of the land as a landfill site, it is still beyond the power of the Chief Executive in Council under section 15(1) to refer the matter to the Authority for a replacement or amendment of the map for the country park designating its parameters.  As I said, there is nothing in the Ordinance which suggests that this cannot be done.   

5.Having considered Mr Chow’s submissions, I do not think, as far as the context of the ordinance or the scheme of the whole ordinance is concerned, there is anything to suggest that in this sort of situation, namely where it has been demonstrated that it is a proportionate response to the problem of waste management to excise the land for landfill purposes, the decision to do that is ultra vires.  Because of that it was within the power of the Chief Executive in Council to make such reference, and it was also within the power of the Authority to prepare a draft amendment or replacement map pursuant to such reference and in accordance with section 8 of the ordinance. 

6.As far as the process of objections is concerned, it was considered by the Board pursuant to section 11.  Mr Chow confirmed today, as far as his challenge based on what happened at the objection hearing is concerned, it basically revolved around the objection (1) and (2) set out in paragraph 213/09 of the minute of the Board meeting on 30 March 2009.  The two objections are:  (1) The duty of the Authority to properly manage the country parks under the Country Parks Ordinance. Therefore to allow country parks to be used as landfills would reduce public enjoyment and amenities of the country parks; and (2) the Board should uphold its function to protect and conserve country parks.  These are the objections that the Applicant seeks to rely upon and contend that they were not dealt with adequately in the objection process. 

7.Mr Chow confirmed that the Applicant is not relying on the other objection, which is objection (4) in the paragraph, namely that the government should adopt the “no net loss” principle to compensate for the loss of 5 hectares of country park land.  Therefore, this court does not have to consider whether the “no net loss” principle has been adequately dealt with in the objection process. 

8.As far as the first two objections are concerned (as Mr Chow quite frankly admitted) they add nothing to the construction point because once the court is not with him on the construction of Section 15, there is nothing in them.  Those objections premised on the proposition that the land cannot be excised for other land use so long as it is suitable for country park use. 

9.The same can be said about the challenge based on irrelevant consideration.  Again that depends on the construction point and adds nothing to it.  Once the construction point is gone, it is impossible to suggest that the matter considered by the Board were irrelevant.  For the reasons I have given, I do not think the construction point is arguable. 

10.As regards apparent bias in the process of dealing with objections, since the Applicant was not one of the objectors and the challenge of bias is basically a challenge to the fairness of that process, I do not think leave should be granted for that to be pursued by this Applicant.

11.In any event, the scheme of the ordinance is that there can be consultation by the Authority with the Board before the publication of the draft amendment map (see Section 8(4) of the Ordinance).  When objections are received after publication, it is still within the remit of the Board to consider those objections under Section 11.  And having regard to what has been actually considered by the members in the hearing dealing with the objections as set out in the minutes, I do not think there is any ground to challenge the propriety of that objection hearing on the ground of apparent bias. 

12.For these reasons I have to refuse leave to apply for judicial review.

13.Having said so, I wish to add that country parks are valuable natural heritage to be preserved for those living in Hong Kong.  As I have said in the course of my judgement this morning, there is a legitimate expectation that they would not be excised unless it can be demonstrated that there is a need to do so.  That may involve showing that the excise of the country park is a proportionate response to the problem at hand. As I have said, as far as the present proceedings are concerned this is not one of the grounds of challenge and therefore it would not assist the Applicant.

14.Now we can deal with the question of costs.

(Submissions re costs)

15.I think I will make no order as to costs for today’s hearing.  Although I refuse leave to apply for judicial review, I do see that there is a strong public interest element in these proceedings.  I do not think this is the proper occasion for me to say whether there should be separate consideration for environmental cases.  As I understand it, the problem is still subject to debate in England, as can be seen from the latest English Court of Appeal decision in Francis Morgan v Hinton Organics Limited [2009] EWCAC iv 107, and also the preliminary report of Lord Justice Jackson on Cost, Chapters 35 and 36.  I believe there are matters that will have to be canvassed at greater length before one can make a mature decision. 

16.Likewise, I am not going to say too much on the topic of protective cost order.  I can see there is room for similar development in Hong Kong as in England on such kind of order.  Having said that, of course one must also recognise that the development in England is still ongoing.  I will leave that subject for debate in future cases.  Since I refuse leave, the only question that I have to decide in the present context is whether I should make an order for cost for today’s hearing.

17.I regard today’s hearing as a matter in furtherance of public interest.  I bear in mind the principles I have set out in Chu Hoi Dick v Secretary for Home Affairs (No.2) [2007] 4 HKC 428 and also the subsequent Court of Appeal decision in Chan Noi Heung v Chief Executive in Council, CACV197 of 2007, 16 March 2009.  I recognise that the starting point is costs should follow the event.  Therefore prima facie the Applicant has to pay the costs of the putative Respondent upon the refusal of leave.  But the court has a discretion to depart from this usual order when the pursuit of the litigation is not for private gain but for clarification of the law.  I have said in Chu Hoi Dick that whether this is in public interest is to be determined objectively.  I have said that to pursue a litigation with no prospect of success is not in public interest. 

18.However, as far as the present proceedings is concerned, I agree with Mr Chow that section 15 itself did not set out quite clearly under what circumstances the power to replace or amend the country parks map can properly be exercised.  As far as the present proceedings is concerned, although I reject the construction point advanced by Mr Chow, it is also accepted by the putative respondent that the discretion cannot be unfettered.  To that extent I believe this hearing serves some purpose in the clarification of the law and hopefully provide some guidance for the future.  I accept that the applicant is not pursuing these proceedings for private gain and it has achieved some clarification of the law albeit in terms of the rejection of the construction point urged upon the court by the Applicant.  In other words, as far as the utility of this piece of litigation is concerned, it demonstrates that country park can be re-designated, the map can be amended or replaced, but there has to be a good purpose.

19.For these reasons I will make no order as to costs for today’s hearing.

Mr Enzo W H Chow, instructed by Messrs Lee Chan Cheng, for the Applicant

Mr Alexander Stock, instructed by the Department of Justice, for the 1st and 2nd Respondents