Wong Hing Kong v. Urban Renewal Authority
Read the full judgment text of HCAL 34/2009 on BabelCite. This High Court CFI judgment was delivered on 5 October 2009.
1. On 5 October 2009, the Court dismissed the present application for judicial review with costs, including all costs previously reserved. The Court also refused leave to amend the Form 86A to introduce further grounds of challenge. The Court gave brief reasons for its refusal.
Cited by 6 cases · Cites 4 cases
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HCAL 34/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 34 OF 2009 ______________________ BETWEEN
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Before: Hon Andrew Cheung J in Court Date of Hearing: 5 October 2009 Date of Judgment: 5 October 2009 Date of Reasons for Judgment: 14 October 2009 _____________________________ REASONS FOR JUDGMENT _____________________________ 1.On 5 October 2009, the Court dismissed the present application for judicial review with costs, including all costs previously reserved. The Court also refused leave to amend the Form 86A to introduce further grounds of challenge. The Court gave brief reasons for its refusal. 2.The Court now gives its reasons for dismissing the application and for refusing leave to amend. Background 3.The application for judicial review related to the redevelopment of the Kwun Tong Town Centre. The applicant is the registered owner of a property known as Flat C, 1/F, Wah Yee Building, Nos 2-8A Yan Oi Court, Kowloon, Hong Kong, situated within the Kwun Tong Town Centre and is thus affected by the redevelopment. 4.Redevelopment of the Kwun Tong Town Centre was first announced by the former Land Development Corporation (“the LDC”) in January 1998. However, the LDC was replaced by the Urban Renewal Authority (“the Authority”) upon its establishment on 1 May 2001 pursuant to the Urban Renewal Authority Ordinance, Cap 563 (“the Ordinance”), which was enacted in the previous year to provide a new framework for carrying out urban renewal. 5.At the time of the replacement of the LDC by the Authority, the redevelopment of the Kwun Tong Town Centre had not been implemented at all. 6.Section 36(7) of the Ordinance provides that where at the date of commencement of Parts II to VIII of the Ordinance, a development scheme has been prepared in accordance with section 13(1) of the repealed Land Development Corporation Ordinance, Cap 15 (“the LDC Ordinance”), the development scheme may be continued and completed by the Authority as if the LDC Ordinance had not been repealed and the powers and the duties of the LDC shall be exercised and performed by the Authority. 7.The redevelopment of the Kwun Tong Town Centre was commenced formally by the Authority in March 2007. The Authority has since acquired some of the affected properties according to the acquisition principles specified by it. An offer to acquire the applicant’s property in accordance with those principles has also been made to the applicant. 8.However, the applicant was not satisfied with the acquisition principles based on which the offer was made to him. He pointed out that under the Authority’s acquisition principles, for domestic premises, the ex gratia payment to be made (known as the home purchase allowance) if the owner occupies his property as his sole residence is calculated as the difference between the market value of the property being acquired and the value of a notional replacement flat, ie a 7-year-old flat of similar size and in similar locality. Importantly, if the owner does not reside in his property (like the applicant) he will be offered an ex gratia payment known as supplementary allowance, which is a percentage of the home purchase allowance, and in the applicant’s case, it is 50% of the home purchase allowance. The applicant was not satisfied with the supplementary allowance that he was offered with because, as he pointed out, under the acquisition principles of the former LDC, he would have been offered a full home purchase allowance (instead of a 50% allowance), although the value of the notional replacement flat would be a 10-year-old flat instead of a 7-year-old flat under the Authority’s acquisition principles. Applicant’s (original) argument 9.In the Form 86A prepared by the applicant when he was acting in person, he essentially relied on one ground of challenge, on which he was given leave to apply for judicial review. In short, he contended that the redevelopment of the Kwun Tong Town Centre by the Authority was a continuation by the Authority of a development scheme prepared formerly by the LDC under section 13(1) of the repealed LDC Ordinance before Parts II to VIII of the Ordinance came into effect, pursuant to the Authority’s power to so continue and to complete previous development schemes under section 36(7) of the Ordinance. That being the case, the applicant argued, the redevelopment ought to be continued and completed by the Authority as if the LDC Ordinance had not been repealed and the powers and the duties of the LDC ought to be exercised and performed by the Authority. Importantly, that included the acquisition principles formerly applied by the LDC. 10.In other words, the applicant argued that the Authority ought to have made to him an offer in accordance with the LDC’s more generous acquisition principles, rather than the Authority’s own acquisition principles. Discussion 11.This argument faced several factual hurdles. First, in order to rely on section 36(7), there had to be a finalised scheme prepared by the LDC under section 13(1) of the repealed LDC Ordinance. Section 13 of the repealed Ordinance reads:
12.It is true that according to the correspondence exhibited, one might get the impression that by the time of the replacement of the LDC by the Authority, the development scheme relating to the Kwun Tong Town Centre had already been finalised. What was left to be done was the submission of the relevant development scheme plan to the Town Planning Board for approval pursuant to section 14 of the LDC Ordinance. Thus, according to the letter dated 22 July 1999 from the Secretary for Planning, Environment and Lands to the Deputy Chief Executive of the LDC:
13.Mr Earl Deng, appearing for the applicant, agreed that this letter represented the high water mark of the applicant’s case that there had been prepared a finalised scheme under section 13(1) of the repealed LDC Ordinance. However, even according to this letter, the development scheme plan in question was referred to as a “draft” one only. 14.But not only that: According to the evidence filed on behalf of the respondent, the development scheme plan merely constituted a draft scheme which had not been finalised, in view of the imminent replacement of the LDC by the Authority at the time. 15.Mr Wong Wai Kuen was the Deputy Director of the Property Division of the former LDC before it was dissolved on 1 May 2001 and replaced by the Authority. He has since been employed by the Authority and has become the Head of the Acquisition and Clearance Division. In his first affirmation filed on 9 June 2009, he detailed the work that had been done by the LDC prior to its dissolution:
16.In light of Mr Wong’s elaboration, there was no question of the development scheme in question having been finalised by the LDC prior to its dissolution. In this regard, it should be pointed out that there was no application for further discovery of documents or for leave to cross-examine Mr Wong on his affirmations. What Mr Wong explained was not something extraordinary or wholly incredible that the Court should reject even in the absence of cross-examination. See Chu Woan-chyi v Director of Immigration, CACV 119/2007, 4 September 2009. In fact, on a fair reading of the correspondence, it is plain that after the initial development scheme was prepared by the LDC, comments were obtained by the Secretary from various departments concerned, and in relation to those comments, the LDC provided responses. There was never a second round of comments from the various departments concerned in relation to the LDC’s responses. As Mr Wong pointed out, had it not been for the dissolution of LDC, further comments on those responses by the LDC might have been sought and received, which might have led to further revisions of the redevelopment scheme. 17.In those circumstances, it was quite impossible for the Court to find that despite the positive evidence of Mr Wong to the contrary, there had been prepared and finalised a development scheme under section 13(1) of the LDC Ordinance. 18.This was fatal to the applicant’s case. 19.But there were other insurmountable difficulties. Even assuming that there had been prepared a finalised scheme under section 13(1) of the LDC Ordinance, section 36(7) of the Ordinance would only come into play if the development scheme had been, as a matter of fact, “continued” by the Authority. In other words, it was up to the Authority whether to adopt and continue the former development scheme prepared by the LDC. 20.Again, in this regard, the factual evidence was all one way. According to Mr Wong’s first affirmation:
21.There were many differences between the LDC’s (draft) development scheme and the section 25 development scheme prepared by the Authority for submission to the Town Planning Board for approval, in terms of the number of the development scheme plans, the site boundary, the development scheme area, the CDA zone area, the maximum gross floor area, the maximum plot ratio, the maximum building height, the public open space, and the technical assessments required. 22.In his second affirmation, Mr Wong shed more light on the reasons why the Authority decided to implement the Kwun Tong Town Centre project by way of a fresh development scheme in accordance with section 25 of the Ordinance:
23.As regards a survey notice dated 13 May 2005 which referred to a survey carried out in 2005 by the Authority as a survey done pursuant to section 16 of the repealed LDC Ordinance, again, there was evidence from Mr Wong to the effect that the survey notice and the survey did not evidence any decision by the Authority to adopt and to continue the former LDC project. In his second affirmation, Mr Wong explained the matter in some detail:
24.In the light of such evidence, there was no question of the Authority having decided to adopt and continue the relevant development scheme of the LDC under section 36(7) of the Ordinance. Rather, the present redevelopment project has been commenced and carried on by the Authority pursuant to the provisions in Part V of the Ordinance, including in particular section 25 thereof (preparation of development scheme). 25.This was also a fatal objection to the applicant’s case. 26.Thirdly, even if one were to assume that the redevelopment of the Kwun Tong Town Centre had been continued pursuant to section 36(7) of the Ordinance, it would not follow that the Authority had no power under the repealed LDC Ordinance to change the relevant acquisition principles. Mr Deng fairly conceded that the LDC, and thus the Authority pursuant to section 36(7), had the power to change the relevant acquisition principles. That being the case, the challenge of the applicant must also fail for this reason. During argument, Mr Deng sought to argue that before the Authority decided to change the relevant acquisition principles, it ought to take into account various relevant matters. On final analysis, this was an attempt to challenge the decision to change the relevant acquisition principles on its merits (in the public law sense). Put another way, it was an attempt to challenge the change in acquisition principles on the Wednesbury unreasonableness ground. As Mr Deng frankly admitted, this was not a ground relied on in the Form 86A. Nor was it a ground included in his proposed amendments (which I will presently turn to). 27.For all these reasons, the application for judicial review, as framed in the Form 86A, failed and it was accordingly dismissed. 28.For the sake of completeness, I should also record that Mr Anderson Chow SC, appearing for the Authority, also raised the further argument that the offer made by the Authority to acquire the applicant’s property on a voluntary basis was not a decision amenable to judicial review. It was a commercial offer made by the Authority. The remedy of a property owner lies in the Lands Resumption Ordinance (Cap 124), if and when the Chief Executive-in-Council decides to resume his property compulsorily under that Ordinance. Mr Chow relied on Wong Tak Woon v Secretary for Planning, Environment and Lands, CACV 339/1999, 11 January 2000; Re Tsang Kam Lan & Yook Tong Estates Limited, HCMP 325/1997, 6 June 1997, Sears J; Leung Man Cheung v Secretary for Planning and Lands, HCAL 274/2007, 14 September 2000, Cheung J. 29.For my part, I would prefer to rest my decision on the reasons I have given and express no view on this further point made by Mr Chow, on which I have not heard detailed arguments from Mr Deng. Application to amend the Form 86A 30.Mr Deng applied at the substantive hearing to amend the Form 86A. It related to four matters. The first matter was simply a fine-tuning exercise of the original ground already relied on in the Form 86A. It proceeded on the assumption that what had been prepared by the LDC prior to its dissolution was a finalised development scheme under section 13(1) of the repealed LDC Ordinance. The applicant was perfectly entitled to run this point and I did not see any need for the applicant to amend the Form 86A in order to fully ventilate his argument. 31.Secondly, the proposed amendment sought to raise an alternative argument. Mr Deng sought to argue that in case what had been prepared by the LDC was merely a draft scheme, that draft scheme had been adopted and continued by the Authority under section 36(7) and thus the powers that the Authority could exercise in implementing the development scheme were those set out in the repealed LDC Ordinance. I disallowed this amendment on its merits. In my view, it turned on the proper construction of section 36(7). It is plain to me that the subsection only empowers the Authority to adopt a finalised scheme prepared under section 13(1) of the repealed LDC Ordinance. It does not empower the Authority to continue and adopt a draft scheme which has not been finalised. Such a draft scheme is simply not a “development scheme [which] has been prepared in accordance with section 13(1) of the repealed [LDC] Ordinance”. There was therefore no question of the Authority adopting such a draft scheme. 32.The third and fourth grounds sought to be introduced by Mr Deng by way of amendment were that there was an implied duty on the part of the Authority to consult the stakeholders before deciding not to adopt and continue the previous development scheme prepared by the LDC but to proceed with the redevelopment by a new section 25 development scheme under the Ordinance, and that there was a corresponding implied duty on the part of the Authority to give reasons for its decision. 33.I rejected the proposed amendments for two reasons. First, as a matter of merits, I rejected Mr Deng’s argument that the suggested duties could be implied into the Ordinance. Section 36(7) is wholly silent on the suggested duties. Section 25 which provides for the preparation of development schemes by the Authority does not require any consultation. This is wholly understandable because section 20 in the same Part (Part V) has already provided for consultation by the Secretary for Development when preparing a relevant urban renewal strategy for the purposes of Part V. Since consultation has already been carried out when preparing the relevant urban renewal strategy, when the Authority prepares a development scheme falling within that strategy, section 25 does not provide for the carrying out of consultation again. That being the case, it is difficult to see how the suggested duty to consult could be implied into the Ordinance in the context of the Authority deciding to proceed with a redevelopment by way of a new development scheme prepared under section 25 of the Ordinance, instead of adopting and continuing an old development scheme of the former LDC. 34.For similar reasons, the suggested duty to give reasons must be rejected. 35.Secondly, the proposed challenge went to the decision in March 2007 to proceed with the redevelopment by a fresh section 25 development scheme. The decision was duly gazetted. The applicant was wholly out of time in seeking to challenge the relevant decision. There was no explanation given for the delay, despite the applicant’s heavy involvement in the redevelopment of the Kwun Tong Town Centre as a property owner and an active member of some relevant concerned groups. 36.Given that the development scheme has been carried on for some time, a belated challenge to the lawfulness of the scheme would have great implications. Mr Deng sought to limit the scope of his challenge by asking for relief restricted to the proposed acquisition of the applicant’s property only. But that would not do. Such a restrictive approach would only give rise to unfair and unequal treatment amongst property owners affected by the redevelopment, including those who had already sold or agreed to sell their properties to the Authority. More importantly, it would still call into question, put at the lowest, the lawfulness of the Authority’s actions in future in relation to the redevelopment project, and give rise to confusion regarding its acquisition principles. 37.For these reasons, the third and fourth proposed grounds of challenge were also refused. 38.The applicant having wholly failed in his substantive application as well as application to amend, costs were awarded against him. A reminder 39.The Court also takes this opportunity to remind the profession of what Litton PJ said a decade ago in Lau Kong Yung v Director of Immigration (1999) 2 HKCFAR 300, 340E/F to G, relating to applications to amend the grounds of challenge after leave to apply for judicial review has been granted:
40.These observations are as pertinent as ever.
Mr Earl Deng, instructed by JCC Cheung & Co, for the applicant Mr Anderson Chow SC, instructed by JSM, for the respondent |
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