Woo Tze Man v. Water Supplies Department and Others

HCAL 67/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 67 OF 2011

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J U D G M E N T

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1.On 24 August 2011, I granted the applicant, who was then acting in person, leave to commence the present judicial review proceedings. He has since obtained representation through legal aid.

2.Two applications are now before the court :

(1)  The applicant’s application for amending the Form 86, which includes the joining of the District Lands Officer/Tsuen Wan and Kwai Tsing (“DLO”) as a respondent and, among others, the Hong Kong Rifle Association (“HKRA”) as an interested party; and

(2)  The respondents’ application for setting aside the leave.

3.The background may be outlined as follows.

Background

4.It is the 1^st respondent’s policy to grant permission to a private organization requesting for use of the roof top of a service reservoir, which is government land, for carrying out sport activities if the organization is a recognized governing body for the sport concerned or an affiliated member of the governing body and has the policy support from the Secretary for Home Affairs.  The 3^rd respondent will generally grant a short term tenancy to the organization for using the roof top of the service reservoir for the sport activities concerned.

5.Here, the roof top is situated at Kau Wah Keng High Level Service Reservoir No 1, Kau Wah Keng, Kwai Chung, New Territories. Within the roof top is a piece of land of 8,340 m² in size (“the Area”).  The entire roof top had been allocated by the 3^rd respondent to the 1^st respondent for construction, operation and maintenance in the form of a permanent government land allocation with reservation of the right for the 3^rd respondent to make temporary use of the Area including the grant of a short term tenancy thereof.

6.HKRA is one of the shooting associations in Hong Kong.  The Hong Kong Shooting Association (“HKSA”) was set up in 1994 to become the sole governing body for the shooting sport in Hong Kong.  HKRA had since been a member of HKSA.

7.HKRA was first allowed to use the Area for rifle range shooting in 1968 pursuant to a Crown Land Permit, which was superseded by another permit in 1972.  The 1972 permit was in turn superseded by a Short Term Tenancy No 3067 K&T in 1990.  The Short Term Tenancy was supplemented by agreements between the government and HKRA dated 16 March 1995 and 12 March 2002.

8.In 2006, HKRA ceased to be a member of HKSA.  It had since taken various steps to reinstate its membership with HKSA, including legal proceedings, with no avail.

9.By letter dated 4 November 2009, the 1^st respondent advised HKRA that it should restore its status as an affiliated member of HKSA within 6 months, failing which, the 1^st respondent would consider recommending to the 2^nd respondent and the DLO not to allow HKRA to continue using the Area.  By letter dated 1 April 2010, the 1^st respondent reminded HKRA to restore its membership before 3 May 2010, which was later upon HKRA’s request, extended to 16 May 2011.  HKRA tried but was unable to restore its membership with HKSA.

10.On 16 May 2011, the District Lands Office issued a notice requiring HKRA to quit and deliver up the possession of the Area on 31 August 2011 (“the Decision”).  HKRA then asked for extension. Separately, by letter dated 13 July 2011, HKRA requested the 2^nd respondent to support its request for extension of 6 months pending its application for recognition as a national sport association for shooting.  By another letter to the 2^nd respondent dated 18 July 2011, HKRA stated that it was unable to comply with the deadline of 31 August 2011 because of the large quantities of firearms and ammunitions involved.  To facilitate HKRA to relocate its firearms and ammunitions, the DLO informed HKRA on 9 September 2011 that the government was prepared to offer a new tenancy for a fixed non-renewable term of 6 months from 1 September 2011.  The offer was however not accepted by HKRA before its expiry.

11.Up to date, HKRA is still occupying the Area.

12.In the meantime, the applicant, an ordinary member of HKRA, applied to the court on 18 August 2011 for leave to commence the present judicial review proceedings to quash the Decision.  As said, I granted him leave on 24 August 2011.

The applicant’s complaint

13.The applicant was acting in person when he applied for leave.  His complaint was understandably couched in very layman terms.  Now that he is legally represented, it is more convenient for present purposes to look at the proposed amendments to the Form 86, which better articulate his complaint.  After recounting the history as outlined above, it is pleaded :

“13. The shooting range at [the Area] is the only international standard shooting range in Hong Kong for holding major local, regional and international rifle and pistol shooting competitions. Use of [the Area] for shooting range purposes has been granted to HKRA since 1960’s for development of shooting sport. …

20. The statutory power to terminate the tenancy of the HKRA at the area must be exercised by [DLO] in accordance with the terms of the tenancy agreement.

21. In making the Decision, [DLO] merely accepted the view of [the 1^st respondent] that the HKRA must be the recognised governing body of the sport of shooting or an affiliated member thereof. In doing so, [DLO] has unlawfully subdelegated, or alienated his discretionary power.

…

23. The Decision was also contrary to the representation made by [DLO] in his letter to the HKRA dated 14 July 2009 …that apart from the two new conditions regarding maintenance of trees in the area referred to in the letter, all other terms and conditions of the tenancy agreement remains the same. Accordingly, the HKRA has a legitimate expectation that by accepting the two new conditions referred to in the letter, its tenancy at the area shall continue.

24. It has never been a condition of the tenancy agreement that the HKRA must be the recognised governing body for shooting sport in Hong Kong or an affiliated member thereof. It was an irrelevant consideration which [DLO] should not take into account. If there is such a policy, outside the tenancy agreement, it contradicts government’s sport promotion policy and has been applied inflexibly in this case.

…

26. Over the years the HKRA has been using [the Area] in full compliance with all the terms and conditions of the tenancy agreement. The only condition in the tenancy agreement in relation to the sport of shooting was that [the Area] has to be used for the purpose of ‘non profit-making rifle range and ancillary recreational activities’. Such purpose was not dependent at all on whether the HKRA is recognised governing body of the sport (or an affiliated member thereof) or not.

27. Moreover, whether the HKRA has the status of recognised governing body of the sport (or is an affiliated member thereof) was not to be decided by the HKRA. It was dependent on whether the Olympic Committee or the current governing body would accept the HKRA or not. By making the tenancy dependent on whether the HKRA was recognised by the Olympic Committee as governing body or permitted by the HKSA to join as its member, [DLO] has relinquished his statutory discretion on the tenancy to the HKSA or acted unreasonably as recognition as governing body and affiliated membership of governing body were matters to be decided respectively by the Olympic Committee or the HKSA on their own.

28. As a matter of fact the HKRA was previously the recognised governing body for the sport of shooting in Hong Kong and later a member of the replacement governing body.  It has been all along the major organisation for the sport of shooting and the only organisation for the sport of international standard rifle and pistol shooting in Hong Kong.  The present governing body for shooting in Hong Kong does not have the facility to run international standard rifle and pistol shooting trainings and competitions. The Decision has the effect of putting an end to the sport of international standard rifle shooting in Hong Kong without any countervailing benefit to the public generally or the sport of shooting in particular in Hong Kong.  In all the circumstances of the case, the Decision was irrational in the public law sense.”

14.Mr Kwok, for the applicant, summated that he has a genuine, irreplaceable, interest in that HKRA should be able to have its tenancy so that he can continue to enjoy his favourite shooting sport at the Area which he has been doing for almost 10 years.  Because of the Decision, the applicant has been wrongfully deprived of his shooting rights in the Area.

Setting aside

15.Logically, I will first deal with the application to setting aside leave.

16.The principles for setting aside are well settled, which have been conveniently summarized by Cheung JA in To Kin Wah v Tuen Mun District Officer & Ors (No 2) [2003] 4 HKC 213 at para 25 :

“ (1) Applications to set aside may be made on a number of grounds including want of reviewability , the existence of an alternative remedy, want of arguability and material non-disclosure such as the failure to disclose the existence of an ouster clause (R v Cornwall County Council, ex p Huntington [1992] 3 All ER 566) or not pursuing an appeal when there were no exceptional circumstances making that course inappropriate (R v Law Society, ex p Kingsley [1996] COD 59).

(2) An application to set aside should only be made in exceptional circumstances such as where the respondent can demonstrate that the proceeding are fundamentally misconceived or doomed to fail (Re Wong Tung Kin [1989] 1 HKLR 93 or that there has been material non-disclosure. Orders setting aside the grant of leave will be made only in very plain cases (R v Bromsgrove District Council, ex p Judge [1992] COD 129). The application should be made, if possible, to the judge who granted leave if he is available.

(3) Applications to set aside should be made timeously or not at all.  Ng Enterprises Ltd v Urban Council [1995] 2 HKC 571; R v Derbyshire County Council, ex p Noble [1989] COD 285; R v Secretary of State for the Environment, ex p Upton Brickworks Ltd [1992] COD 301.  The grounds on which the application to set aside are made must be specified with particularity in the application (R v Lloyd’s of London, ex p Briggs [1992] COD 456.)  On an application to set aside the court should not permit the application to set aside to be used as a vehicle for rehearsing arguments that should be canvassed at a substantive hearing for that would defeat the purpose of the O 53 procedure which is to enable applications for judicial review to be heard within a short space of time.”

17.When applying the principles, the court will also bear in mind the new threshold for leave to apply for judicial review laid down by the Court of Final Appeal in Peter Po Fun Chan v Winnie CW Cheung & Another [2008] 1 HKLRD 319, that is, whether the case has reasonable arguability, as opposed to potential arguability, in the sense that it enjoys a realistic prospect of success : per Li CJ at para 15.

18.Here, the respondents’ principal argument is that the applicant does not have sufficient interest to mount the judicial review against the Decision.  Ms Wu, for the respondents, took a number of points including the following.

19.She first argued that the 3^rd respondent acted as an agent for the government as landlord pursuant to the contractual provisions in the tenancy agreement.  The Decision therefore falls within the realm of private law.

20.She next contended that interest of the applicant, who is not a party to the tenancy agreement, lies in the shooting sport itself.  He does not have any interest in the termination of the tenancy.  In any event, his interest in the shooting sport is not a right protected under the Basic Law or the Hong Kong Bill of Rights.

21.She further argued that the applicant has failed to demonstrate that he has nowhere else to practise the shooting sport that he is interested in other than the Area after the termination of the tenancy.

22.For present purpose, I only need to deal with the last point, which I think is really the knock out point.

23.I proceed on the assumption (without any determination) that the applicant has a right, capable of being protected under public law, to continue with his favourite shooting sport, that is, paper target shooting.  The whole basis of his complaint rests on the assertion that the Area is the only international shooting range in Hong Kong where he can practise the sport.  But if other suitable premises are available, he can surely continue with his hobby there.  He will then suffer no loss because of the termination of the tenancy to enable him to mount the judicial review.

24.The evidence adduced by the respondents, which was not available before the court when I granted the applicant leave in August 2011, show convincingly that there are other comparable shooting ranges available for the applicant to practise his shooting hobby if he so wishes.  In his affirmation dated 6 January 2012, Mr Liu Hon Wah, Senior Executive Officer of the Recreation and Technical Services Section of the 2^nd respondent said :

“Whether KWK site is the only international shooting range in HK

12. The International Shooting Sport Federation (‘ISSF’) is the only international federation, being recognised by the International Olympic Committee, for the sport of shooting. It has oversight of all Olympic shooting events worldwide.

13. As far as I am aware, ISSF would never certify any local shooting range as ‘approved’ range except when the range is made use of for a particular international shooting event.

14. For ease of reference, I have set out in a tabular form the shooting facilities available in Hong Kong. There is now produced and shown to me an exhibit marked ‘LHW-2’, a copy of the tabular form. Facilities marked with ‘ISSF’ are facilities having complied with the ISSF requirement or standard. It can be seen that the shooting range at KWK site is not the only international shooting range in Hong Kong.

Availability of Shooting Facilities for Development and Promotion of Shooting Sport in Hong Kong

15. The shooting ranges provided by HKRA at the KWK site include:

(1) 25m Pistol Ranges;

(2) 50m Rifle Ranges; and

(3) 10m Air Gun Ranges.

There is now produced and shown to me marked ‘LWH-3’, a point-out from the website of the HKRA (www.hkra.com.hk).

16.  Comparable ranges are available elsewhere.  As advised by the HKSA and I verily believe that the HKSA has been using shooting facilities at the Hong Kong Gun Club (HKGC) (‘香港鎗會’), South China Athletic Association (SCAA) (‘南華體育會’) and Hong Kong ISSF Air Gun Shooting Centre in Kwai Shing (KS Shooting Centre, a HKSA shooting facility) (‘香港射擊聯合總會’) for staging ISSF shooting trainings and competitions.  The former two shooting facilities have been used since mid 2006 and the last one since late 2008. Specifically, the HKSA has conducted pistol and rifle shooting events at ISSF 25m pistol range and ISSF 50m pistol/rifle at the HKGC, skeet and trap events (i.e. shotgun events) at ISSF skeet and trap ranges (solely-available) at the HKGC, and air pistol/rifle events at the SCAA and the KS Shooting Centre.  It should be noted that the ranges at the HKGC meet international ISSF shooting standards and should have facilities to host international ISSF shooting competitions at interport or regional level for 3 to 5 countries subject to the approval to be given by the HKSA.  As set out above, they have all complied with the ISSF requirement or standard.  25m pistol range can also found at [English] (‘中國鎗會’).  10m Air Gun Range is also available at [English] (‘香港殘疾人奧委會暨傷殘人士體育協會’).”

A copy of exhibit “LHW-2” is annexed to this judgment for easy reference.

25.The applicant argued that those shooting ranges are not suitable for a number of reasons.

26.The applicant first asserted that only the Area meets the so‑called international standard whereas the others do not.  But he failed to specify what exactly he meant by international standard.  He did refer to the fact that the Area had been used for ISSF rifle and pistol championship competitions twice in the 1980s.  He therefore believed that the Area should remain up to the standard required.  But the applicant’s belief was mistaken.  As Mr Liu pointed out in his affirmation, the Area was qualified in the 1980s because the sport was still in a developing stage.  The requirements for hosting international championships had since become more stringent. Nowadays the Area can no longer qualify for the international ISSF rifle and pistol shooting competitions because of a number of inherent limitations such as loading constraint and insufficient facilities.  So if by international standard, the applicant meant the capability to host international shooting competitions, then he is factually wrong because the Area is no longer capable of hosting international shooting competitions.

27.If by international standard, the applicant meant compliance with the ISSF standard, then he is wrong in asserting that the Area is the only qualified range because other shooting ranges are also qualified.

28.The applicant next contended that not all shooting ranges in Hong Kong are suitable for paper target shooting.  But I accept what Mr Liu said in his second affirmation dated 7 March 2012, which is not capable of being disputed on the evidence before me :

“14. In paragraph 16 of HO’s Affirmation [which was filed to support the applicant’s case], it states that the KWK shooting range was built for ISSF rifle and pistol shooting whilst the HKGC range is primarily for clay target shooting. This is not the case. The shooting ranges at the HKGC include a 25m ISSF Pistol Range, a 50m ISSF Rifle Range and an ISSF Skeet and Trap Range.

15. Paragraph 17 of HO’s Affirmation refers to an Exhibit HYF-5 which suggests that the KWK site can hold six pistol and rifle events (another four are air pistol/rifle events) while the shooting range at the HKGC can hold none. This is not the case. According to the HKSA, the shooting range at the HKGC can equally host all the six pistol and rifle events, in addition to the three skeet and trap events (Please refer to (iv) at page 4 of HKSA’s reply in Exhibit LHW-7).

16. In paragraph 21 of HO’s Affirmation, it states that three of the six disciplinary services shooting clubs in Hong Kong have expressed concern about the possible loss of HKRA’s KWK site. According to the documents marked exhibit ‘HYF-6’, one of the clubs has expressly stated that shooting is not part of the duty of its department. The remaining two clubs are concerned with Police Pistol Combat (‘PPC’) events and International Practical Shooting Confederation (IPSC) events, both of which are to promote ‘practical shooting’ and ‘non-sportive use of guns’, i.e., they do not fall within any Olympic-type shooting disciplines under the ISSF. PPC/IPSC shooting facilities are also provided at HKGC and that there are shooting facilities available in Hong Kong for disciplined services officers.

17.  In paragraph 22 of HO’s Affirmation, it states that there is no ISSF rifle and pistol range comparable to the KWK site available elsewhere in Hong Kong.  He argues that the ISSF rifle and pistol ranges at the HKGC are too small and the 25m pistol range run by the China Gun Club is not an ISSF range.  It should be noted that when comparable ranges are said to be available elsewhere, it means that there are shooting ranges operated by other shooting associations with facilities similar to the KWK site.  The HKSA has advised that the ranges at the HKGC meet international ISSF shooting standards and are capable of staging the same rifle and pistol events as those at the KWK site.  The HKSA has conducted rifle and pistol competitions and training at the ranges of the HKGC since 2006.  For non-expert shooters, an ISSF standard range is preferred for competitions, but is not essential.  Such shooters may use the 25m pistol range at the China Gun Club for completion and practice.”

29.Thirdly, the applicant complained that he might not be able to join the other shooting organizations, namely because of the membership requirement.  But those membership requirements do not prevent him from applying and becoming an associate member.

30.Fourthly, the applicant said joining China Gun Club is beyond his means.  But the entrance fees for China Gun Club range from HK$21,800 to HK$32,800.  The difference is insignificant when compared to HK$30,000 charged by HKRA.

31.The applicant took some more minor points but it is not necessary for me to deal with them as they are either straightly not relevant or bear little significance for present purposes.

32.For the above reasons, it is beyond doubt that other shooting ranges comparable to the Area are clearly available to the applicant.  So even if his interest in practising his shooting sport is capable of being protected by public law, he has suffered no loss because of the termination of the short term tenancy held by HKRA for the Area.  He has no interest which would entitle him to mount the present judicial review against the Decision.

33.In light of my conclusion, I do not propose to deal with the other points taken by Ms Wu.

Amendments and joinder

34.Now that leave to commence the judicial review is set aside, the applicant’s application for amendment and joinder must fail.

Orders

35.I set aside the leave granted on 24 August 2011 and dismiss the applicant’s application for amendment of the Form 86 and joinder.

36.I make an order nisi that the respondents shall have the costs including all costs reserved, to be taxed if not agreed. The applicant’s own costs are to be taxed in accordance with the legal aid regulations.

Mr Kwok Sui Hay, instructed by Brian Kong & Co, assigned by the Director of Legal Aid, for the applicant

Ms Teresa Wu, instructed by the Department of Justice, for the respondents