Re Chan Kai Wah

HCAL 40/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 40 OF 2010

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Before: Hon Reyes J in Court

Date of Hearing: 19 May 2010

Date of Decision: 26 May 2010

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D E C I S I O N

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1.Mr. Chan seeks judicial review of a decision by LegCo’s Finance Committee on 16 January 2010. That was a decision approving funding for a High-Speed Rail Link between Hong Kong and Guangzhou, with a terminus (WKT) in the West Kowloon Reclamation Area. LegCo’s decision was not unanimous, some councillors having voted against the resolution for funding.

2.I am unable to grant leave for judicial review.  I briefly set out my reasons below.

3.First, the decision by LegCo’s Finance Committee is a legislative act.  It is not an administrative decision.  LegCo’s decision is not then susceptible to judicial review.  

4.Mr. Chan says that LegCo members did not really know what they were voting, because the Administration kept them in the dark about certain matters (such as what types of buildings would be constructed over the railway platforms).  But (even if Mr. Chan’s allegation is assumed to be true) the subjective views of LegCo members when voting for a resolution are not a proper subject for investigation by the Courts in a judicial review.

5.Second, I do not think that Mr. Chan has sufficient locus or interest to mount a judicial review.  Mr. Chan describes himself as “a retired middle class engineering professional”.  He lives above Kowloon station, next to the site of the WKT.  He suggests that the WKT will radically increase the already heavy traffic around Kowloon station.  However, he concedes that he himself uses public transportation and does not drive.  He frankly accepts that he has “no private interest in the outcome of the judicial review”.   He will thus not be directly affected by the eventual construction of the WKT.   His interest in the matter is no more, nor less, than that of any ordinary civic-minded person living in Hong Kong who is concerned about matters going on here.  While that concern may be laudable, it does not in my view constitute a sufficient legal basis to allow Mr. Chan’s proposed judicial review.

6.Third, Mr. Chan’s objections to LegCo’s decision essentially consist of disagreements on policy. 

7.Mr. Chan is not personally opposed to a High Speed Rail Link.  But he passionately believes that a High Speed Rail Link at WKT will not be beneficial to Hong Kong people.  He thinks that, if there is to be a High Speed Rail Link terminal, it should be situated somewhere else, possibly at Hung Hom.

8.Mr. Chan complains that the proposed railway will have an adverse impact on traffic in West Kowloon.  That, in Mr. Chan’s opinion based on his reading of Government studies, will inexorably lead to further reclamation of land in southern Kowloon with consequent adverse impacts on the harbour.  This (Mr. Chan stresses) will breach Government’s statutory duty to protect the harbour. 

9.Mr. Chan submits that Government has breached its Planning Standards and Transportation Design Guidelines in the design of the WKT.  He acknowledges that those may have no binding effect in law, being mere guidelines and not statutes.  Nonetheless, he queries why those standards have not been followed.

10.In his submissions, Mr. Chan deploys the standard vocabulary of judicial review (for example, Wednesbury unreasonableness, irrationality, the taking account of irrelevant considerations and the neglect of relevant considerations, error of fact, error in law).  But the Court looks to substance, not forensic rhetoric.  In my view, there is no disguising the reality that, at heart, Mr. Chan wishes to re-visit in Court the policy considerations which ultimately led Government to seek funding from LegCo for a High Speed Rail Link at WKT.  The Court is not the proper venue for such a debate.

11.The Court has repeatedly pointed out that judicial review is not appropriate for determining questions of Government policy.  The Court can only apply the law.  It does not run railways.  Nor can it decide what should be a proper transportation network for Hong Kong.  There is good reason for this limitation, as judges simply have no expertise in such matters.

12.Mr. Chan submits that, because of the problems he has identified, no reasonable person could have approved the WKT High Speed Rail Link which LegCo decided to fund. 

13.But the policy considerations involved in a decision to fund a High Speed Rail Link at WKT are so myriad that it cannot be said that LegCo’s decision was irrational.  There can be no one clear-cut answer to the matters raised by Mr. Chan.  Inevitably, different people may reasonably differ, perhaps strongly differ, on whether the WKT is a good thing for Hong Kong.  Reasons for supporting or objecting the WKT may even differ markedly among individuals on the same side of the debate. 

14.Further, as with many aspects of life, there are bound to be good and bad arguments on all sides of the issue.  Some may be convinced by bad arguments, others may reject valid arguments for bad reasons in which they nonetheless fervently believe.  The mere fact that such happens within the context of a forum such as LegCo does not render a matter suitable for judicial review.

15.Fourth, some of Mr. Chan’s claims strike me as speculative and nebulous.

16.Mr. Chan says that there is a “real likelihood of bias and injustice in the ... selection and design of the WKT”.  He hints at bad faith (dishonesty).  He goes so far as to contend that “there were some secret policies during the relocation of the [WKT] from the Hung Hom Mass Transportation Centre to a constrained and isolated dead-end in West Kowloon harbour side”. 

17.Mr. Chan says that bias is apparent from the 2006 decision (around the time of the merger between the MTRC and the KCRC) to switch from having a terminus at Hung Hom to one at West Kowloon.  According to Mr. Chan, Government justified the switch by claiming that the WKT would not only complement West Kowloon as a commercial and cultural hub, but also take advantage of convenient transport interchanges available in West Kowloon.  Mr. Chan does not find these reasons to be plausible.  He infers from this implausibility that the hidden agenda for the switch was to favour MTRC’s commercial and property interests at the taxpayer’s expense.

18.Mr. Chan says that bad faith is self-evident from the seeming lack of an underground interchange between the WKT and Kowloon station and the surreptitious expansion of the footprint of the WKT.  The lack of an underground interchange (Mr. Chan surmises) demonstrates that the Government is not truly concerned about the public’s convenience in moving to and from the WKT and Kowloon station.  By contrast, the WKT’s footprint was greatly expanded (Mr. Chan says) from 4 to 15 underground platforms.  This expansion (Mr. Chan reasons) must have been done to increase the size of the commercial development which the MTRC could build on top of the WKT.  Otherwise, Mr. Chan asserts that “[n]o city in the world would need 15 platforms to serve one single rail line buried deep down underground for civil purposes or applications”.

19.Nor are the secret policies which Mr. Chan discerns confined to the enhancement of MTRC’s commercial interest.  Mr. Chan also speculates that, given an extraordinary number of platforms to be built deep underground, there may be secret military purposes behind the choice of WKT as a terminus.  Judicial investigation (Mr. Chan says) is required to shed light on this hidden agenda.

20.All the above allegations seem to me fanciful.  I can see no hard evidentiary basis in the material provided by Mr. Chan for drawing the inferences which Mr. Chan makes.  Mere speculations are not a suitable subject for judicial review or indeed any Court proceedings.  Especially, where bad faith (dishonesty) is being alleged, an applicant must condescend to full particulars at the outset, citing chapter and verse as to precisely who did what wrongly, where and when.  This is especially the case in an application for judicial review which is made on an ex parte basis.  This cardinal principle applies whether a person is represented or acts in person.  I do not find that necessary degree of precision which the law requires in Mr. Chan’s allegations of bad faith, bias and conspiracy. 

21.For the above reasons, in my judgment Mr. Chan’s proposed judicial review has no prospect of success.  I accordingly refuse leave.

Applicant in person, present

Appeal by applicant to Court of Appeal dismissed. Please refer to CACV126/2010 dated 15 March 2011