Chau Tam Yuet Ching v. Director of Lands

HCAL 66/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 66 OF 2012

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J U D G M E N T

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A.  Introduction

1.This is the applicant’s application for leave to apply for judicial review.

2.The decisions under challenge are: (a) the decision of the Director of Lands (“the Director”) on 19 March 2012 to cancel two Government Land Licences (“GLLs”) with immediate effect (“the 1^st Decision”); and (b) the Director’s decision on 2 May 2012 to issue a notice under s 6 of the Land (Miscellaneous Provisions) Ordinance, Cap 28 (“LMO”) to require the applicant to cease occupation of the relevant Government land by 23 May 2012 (“the 2^nd Decision”).

3.At the hearing, Mr Dykes SC for the applicant relied on the draft Amended Form 86 (which is attached to his skeleton) to support the leave application. 

4.I therefore would deal with this application on the basis of the draft Amended Form 86.

B.  The facts

5.For the present purposes, the relevant facts as set out in the draft Amended Form 86 can be summarised as follows.

6.Respectively in 1988 and 1992, the applicant was granted the GLLs (No T20089 and No T20134) for the occupation of some Government land situate at DD 208, Wong Chuk Yeung, Sai Kung North.  These licences were renewable on a yearly basis and the licence areas may be used for temporary structures and cultivation only.

7.Both GLLs were granted with terms on the front page of the licence and subject to the same General and Special Conditions attached thereto.

8.It is provided in the General Conditions that:

(1)  The licence may be cancelled forthwith without compensation or refund of any sum paid in the event of any contravention of any of the General or Special Conditions (General Condition 3).

(2)  On the cancellation of the licence, the licence area shall be cleared and all structures be removed therefrom by the licensee to the satisfaction of the Director of Buildings and Lands (General Condition 4).

(3)  No structures other than those specified on page 1 of the licence shall be erected.  Plans or such structures must be approved by and thereafter maintained in good state of repair to the satisfaction of the Director of Buildings and Lands (General Condition 9).

9.The applicant has been paying the annual fees to renew the two GLLs.

10.In January and February 2012, it was discovered by the staff of the District Lands Office/Tai Po (“DLO/TP”) that the applicant was in breach of the terms of both GLLs by:

(1)  Erection of structures on licence areas and adjacent Government land without permission.

(2)  Placement of a container on licence area without permission.

(3)  Illegal enclosure and occupation of Government land adjacent to licence areas.

(4)  Illegal enclosure and occupation of Government land under GLL No T20100 adjacent to licence areas.

11.Between February and early March 2012, there were correspondence exchanges between DLO/TP and the applicant, whereby:

(1)  DLO/TP required the applicant to rectify these breaches effectively on or before 12 March 2012, failing which the Lands Department would consider cancelling both GLLs.

(2)  The applicant sought to explain the background leading to these breaches and asked for indulgence for her to rectify them.

12.In particular, the applicant in two letters both dated 7 March 2012 sought to explain in greater details the breaches and agreed to rectify them.  The effect of these two letters has been summarised by the applicant at paragraphs 16 and 17 of the draft Amended Form 86 as follows:

“16. By letter dated 7 March 2012 (with photographs attached thereto) the Applicant, in response to DLO/TP’s letter of 24 February 2012, explained to DLO/TP the background and circumstances under which the alleged breaches occurred in the first place out of necessity, for safety and security sake and without fault on the Applicant’s part. The Applicant also thereby evinced an intention to start to rectify or continue rectifying the matters complained of as soon as possible.

17.  By another letter dated 7 March 2012 the Applicant, in response to DLO/TP’s letter of 1 March 2012, explained to DLO/TP that enclosure and occupation of Government land and Government land under GLL No T20100 adjacent to licence areas was a result from mistake made by Government surveyor back in 2006 and any resultant breaches had largely been rectified.”

13.By a letter dated 16 March 2012, the applicant informed DLO/TP that all enclosures on the Government land outside the licence areas had been demolished and attached photographs thereto for reference.

14.However, the DLO/TP was not satisfied that the identified breaches had been rectified upon a site inspection on 13 March 2012. 

15.Thus, by a letter dated 19 March 2012, the DLO/TP informed the applicant that it was not satisfied that the breaches of the GLLs had been rectified.  It further notified the applicant that both GLLs were thereby cancelled with immediate effect.  This is the 1^st Decision under challenge in the proposed judicial review.  The applicant was also asked in this letter to reinstate and clear up the licence areas pursuant to General Condition 4.

16.By a letter dated 19 March 2012, the applicant expressed to DLO/TP her surprise about the cancellation and put on record that (a) during the site inspection on 13 March 2912, the staff of DLO/TP saw that the majority of the breaches had been rectified, and (b) because of continuous heavy rainfall, she was unable to remove the subject matter container on time.  The applicant further asked for an extension of time until 16 April 2012 for her to rectify the remaining breaches.

17.By a letter dated 21 March 2012, the applicant informed DLO/TP that the container was already removed.

18.By a letter dated 26 March 2012, DLO/TP replied to the applicant that (a) both GLLs were cancelled on 19 March 2012 and there was nothing for them to add concerning the cancellation, and (b) the request for extension of time was not accepted.

19.By a letter dated 1 April 2012, the applicant complained that DLO/TP’s cancellation decision was rash and unfair without DLO/TP first having made any positive reply to her two letters of 7 March 2012, and without DLO/TP having considered that the bad weather would delay the rectification works.

20.By a letter dated 2 May 2012, DLO/TP informed the applicant that her explanations in the two letters of 7 March 2012 were not accepted. DLO/TP reiterated that both GLLs were cancelled and the applicant was reminded of her obligation under General Condition 4 to clear the areas.

21.By another letter dated 2 May 2012, DLO/TP notified the applicant that a notice requiring the occupation of land to cease before 23 May 2012 was issued under s 6(1) of the LMO.  The notice was in respect of unleased land adjacent to GLL No T20100 (which is not the subject 2 GLLs) in DD 208, Wong Chuk Yeung Village, Sai Kung North, New Territories, which unleased land included almost the whole licence areas under the 2 GLLs.  In that letter, DLO/TP also stated that, upon the expiry of the notice period, it would take land control actions.  DLO/TP reiterated to the applicant that occupation of Government land without permission was illegal. This is the 2^nd Decision under challenge.

22.Under s 6 of the LMO, effectively the Director[1] may issue a notice to require persons occupying unleased Government land to cease the occupation within a prescribed period, failing which the Director may direct any public officer to clear the land.  The s 6 notice in the present case was issued on the basis that, upon the cancellation of the 2 GLLs, the Government land thereunder became unleased Government land.  The applicant’s continued occupation of the unleased Government land thus triggered the Director’s power under s 6 of the LMO.

23.By a letter of her solicitors, Messrs Wong Poon Chan Law & Co, dated 8 May 2012, the applicant informed DLO/TP of her intention to apply for judicial review against the decision of cancellation and the notice to cease occupation and requested DLO/TP to suspend the notices.

24.By a letter dated 16 May 2012, DLO/TP replied that it had no intention to withdraw the notices of cancellation and the notice to cease occupation.

25.On 21 May 2012, the applicant applied for leave to apply for judicial review against the 1^st and 2^nd Decisions.  Lam J on 29 May 2012 directed a hearing of the application with notice given to the Director, as the putative respondent.

26.At this hearing, the Director was represented by Mr Johnny Mok SC (leading Mr Anthony Chan) and opposed the leave application.

C.  Grounds of the proposed judicial review

27.In the draft Amended Form 86, there is only one substantive ground for the proposed judicial review[2]. Under this ground, it is stated that the forfeiture of the applicant’s rights under the licence upon the cancellation of both GLLs was not dealt with by a competent, independent and impartial tribunal established by law.  The process was therefore not compliant or consistent with article 10 of the Hong Kong Bill of Rights (“the HKBOR”).  The ground further contends that there is also not in place an appeal or review process under the LMO against the cancellation of the licences, and the statutory scheme therefore also does not provide any safeguards which satisfy the requirements of art 10 of the HKBOR[3]. 

28.This ground, if valid and available, is in substance directed at the 1^st Decision.  Apparently, it is the applicant’s position that if the 1^st Decision is quashed under the proposed judicial review, the 2^nd Decision must also be quashed.  In other words, the success (and thus the merits) of the proposed judicial review of the 2^nd Decision stands and falls together with that of the 1^st Decision.

29.In the proposed judicial review, the applicant seeks the reliefs of (a) an order of Certiorari to quash the 1^st and 2^nd Decisions, (b) a declaration that the statutory scheme under the relevant parts of the LMO is not compliant with art 10 of the HKBOR, and (c) an interim injunction to restrain the Director from taking possession of the licence areas under both GLLs.

D.  This leave application

30.Leave to apply for judicial review would only be granted if the proposed judicial review is reasonably arguable: Po Fan Chan v Winnie Cheung[4], at paragraphs 14-17.

31.In light of the contentions between the parties at the hearing, the primary consideration in this leave application is whether the 1^st Decision is arguably amenable to judicial review.

32.It is trite that not every decision made by a statutory body or public body is judicially reviewable under public law. 

33.This dichotomy between public law and private law has been discussed in detail in many cases.  After reviewing a line of authorities, A Cheung J (as he then was) summarised the applicable principles at paragraph 57 of the judgment in Anderson Asphalt Ltd v Secretary for Justice[5]as follows:

“57. Having thus reviewed the relevant case law, it appears to me that:

(a) Only a decision made in the public law domain is amenable to judicial review.

(b) Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance.

(c) In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or a decision made in the performance of a purely commercial function, is most likely a private law decision, not amenable to judicial review.

(d) Put another way, the presence of a public element(s) of sufficient significance in the decision-making process could turn an otherwise commercial decision into a public law decision, amenable to judicial review.

(e) What is sufficient is a matter of fact and degree, depending very much on individual cases. No hard and fast rule can be laid down. It is, in a borderline case, very much a matter of overall impression and one of degree: R v Legal Aid Board, ex p Donn & Co [1996] 3 All ER 1, 11h, cited with approval by Mortimer VP in Matteograssi, supra, at p 219C-D.

(f) In relation to decisions made in land transactions, the same legal principles apply. A complete statement of the Hang Wah Chong principle does not merely state that in lease modification cases, the Government’s decisions on whether to grant a modification and on the amount of premium to be extracted (if any) are in the nature of private commercial or economic decisions of a private landlord, and therefore not susceptible to judicial review. A complete statement of the principle also says that where the Government official, in making the decision, acts in his role as protector of the public interest, his decision is almost certainly liable to judicial review.

(g) Thus understood, the so-called Hang Wah Chong principle is no more than a special application of the general principles on the distinction of public/private law to land matters in Hong Kong.

(h) In land matters, invariably, there are restrictive user covenants in the relevant leases or grants. Plainly, they serve the commercial and economic interests of the Government as landlord. But, equally plainly, they serve, to some extent, a purpose of town planning, which, no doubt, any responsible government must be responsible for, whether directly or indirectly.

(i) Therefore, there is always a built-in town planning element in land grants and the system of land-holding in Hong Kong, leaving aside any specific town planning legislation.

(j) That, however, is not sufficient in itself to turn a decision made by the Director in relation to modifying a restrictive user covenant in a grant or demanding a premium for the modification into a public law decision, amenable to judicial review, according to the decided cases.

(k) This illustrates that the mere presence of some public element (namely, town planning consideration) may not be sufficient to render the decision a public law decision. The crucial question is whether some additional public element(s) of sufficient weight is/are present in the decision-making process to render the decision made a public one, amenable to judicial review. Put another way, the crucial question is whether the role played or function performed by the Government official is sufficiently public to render the decision a public one, susceptible to judicial review.

(l) Again it depends on the facts, and in a borderline case, it is really a matter of overall impression and degree.” (emphasis added)

34.A useful and helpful summary of these relevant principles can also be found in Poon J’s decision in King Prosper Trading Ltd v Urban Renewal Authority[6], at paragraphs 26 to 31 as follows:

“26. It is trite that not every decision made by a statutory or public body is amenable to judicial review. The court will exercise its supervisory jurisdiction in judicial review only if the decision falls within the public law domain. How to determine amenability is the subject matter of a considerable volume of case law developed in recent years. The principles derived from the authorities may be stated as follows.

27. First, the source of the body’s power in making the decision remains a relevant consideration and may, depending on the circumstances, provide a good starting point for the enquiry into the question of amenability. Indeed sometimes the source of power alone may determine amenability : see Lee Shing Yue Construction Co Ltd v Director of Architectural Services & Another [2001] 1 HKLRD 715, per Hartmann J (as he then was) at p.727F-G.

28. Second, the court is not confined to considering the source of the body’s power alone but also looks to the nature of the function being exercised by that body when making the decision under challenge. If it is a public function, then the decision will be susceptible to judicial review : see R v Panel on Take-overs and Mergers, ex p Datafin Plc [1987] 1 QB 815.

29. Third, where the decision being challenged is in reality a commercial decision, then it is not amenable to judicial review in the absence of fraud, corruption, bad faith or breach of law : Matteograssi SpA v The Airport Authority [1998] 2 HKLRD 213, Ngo Kee Construction Co Ltd v Hong Kong Housing Authority [2001] 1 HKC 493, Lee Shing Yue Construction Co Ltd v Director of Architectural Services & Another [2001] 1 HKLRD 715.

30. Fourth, the mere presence of some public element may not be sufficient to render the decision a public law one. For a public body, like the government, is expected to exercise its powers and discretions in the public interest and for the public’s benefit : Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215, per A. Cheung J at para 40. The mere presence of some public element may not be sufficient to render the decision a public law decision. The crucial question is whether some additional public elements of sufficient weight are present in the decision-making process to render the decision a public one : Anderson Asphalt Ltd, ibid, at para 57(k). See also De Smith’s Judicial Review, 6^th Edition, para 3-060 at p 140.

31.  Fifth, what is sufficient is a matter of fact and degree, depending on individual cases.  No hard and fast rule can be laid down.  In a borderline case, it is very much a matter of overall impression and one of degree : Anderson Asphalt Ltd, ibid, at para 57(e) and (l).”

35.Applying these principles, I agree with Mr Mok for the Director that the 1^st Decision does not have or have a sufficient public law element to render it amenable to judicial review as:

(1)  The Director in granting the GLLs were effectively only acting as the land agent for the Government, where the Government (as the land owner) is granting a short term renewable licence to the applicant for temporary use of the licence areas.  The relationship between the applicant and the Director (as the Government’s land agent) was one of licence and licensor.

(2)  The 2 GLLs were temporary arrangements and could be brought to an end at a short notice under the terms.  They are therefore analogous to the short-term waiver discussed at paragraph 80 of the judgment in Anderson Asphalt, supra.  In that case, it was held that, when the Director was making a decision on the grant or refusal of a temporary, non-permanent, short-term waiver, her function was to obtain the best or a reasonable return from the land for the time being, by allowing the lessee to use the land in a particular way she desired.

(3)   While the source of the Director’s right to issue the licence with terms is statutory[7], the rights and obligations of the applicant qua licensee and the Director qua licensor, including the Director’s contractual right to terminate the 2 GLLs pursuant to General Condition 3, were governed by contract in the form of the 2 GLLs.

(4)  In making the 1^st Decision, the Director was merely exercising the right as a licensor under the terms of the licence. 

(5)  As such, in my view, in granting and later cancelling the GLLs, the Director was clearly performing a purely private and commercial function.

(6)   For these reasons, I do not see any sufficient public elements attached to the 1^st Decision which render it falling within the public law domain.

36.Mr Dykes however has a further argument.  As I understand it, it runs as follows:

(1)  Lam J in Wong Wai Hing Christopher v Director of Lands[8] has decided that a clearance notice (“s 6 Notice”) issued under s 6 of LMO is amenable to judicial review. 

(2)  A s 6 Notice concerns the Director’s power to require occupiers of unleased Government land to cease doing so. 

(3)  In the present case, the Director has issued a s 6 Notice (ie, the 2^nd Decision) to require the applicant to clear the areas under the 2 GLLs after making the 1^st Decision to cancel those licences.  The 2^nd Decision is therefore a decision following and resulted from the 1^st Decision. Given that the 2^nd Decision is (according to Wong Wai Hing Christopher) susceptible to judicial review, it therefore would be wholly inconsistent (contended by Mr Dykes) that the 1^st Decision is not also so amenable to judicial review.

37.With respect, I am unable to agree with these submissions.

38.In Wong Wai Hing Christopher, Lam J explained why a s 6 Notice was amenable to judicial review at paragraphs 48 to 59 of his judgment as follows:

“48. The recovery of possession of land already resumed (as opposed to the decision made by the Chief Executive in Council in resuming the land) is undertaken by the Director in the performance of his role as the land agent of the Government. As such, the decisions made in connection to such process and the steps taken thereunder is prima facie not judicially reviewable in accordance with the principle laid down in Hang Wah Chong Investment v Attorney General [1981] HKLR 336.

49. The Applicant relied on Hong Kong & China Gas v Directors of Land [1997] HKLRD 1291 to argue that Hang Wah Chong is not applicable. The dichotomy between these two lines of cases has been examined by A Cheung J in Anderson Asphalt v Secretary for Justice [2009] 3 HKLRD 217. The relevant principles were summarised by His Lordship at para.57 of the judgment after reviewing the relevant authorities. In a nutshell, the mere presence of some public element in the decision or action being challenged may not be sufficient to render it a public law decision. The crucial question is whether there is a public element of sufficient weight in the sense that the role played or the function performed by the Government official is sufficiently public to render it susceptible to judicial review.

50. In the context of land resumption, in my judgment, there is a distinction between the decision to resume the land and thereafter the actual process of recovering the land (including the eviction of those continues to remain on the land after resumption has been legally effected). No matter what one may say as regards the reviewability of the former decision, I think the latter process and each step taken pursuant thereto by the Director of Lands must be regarded as acts in the performance of his role as the land agent of the Government. As such, subject to an important rider, the steps taken by the Director in his negotiation with the occupiers and the clearance of the land, insofar as they are done in a similar manner as a private landlord recovering possession of his land from an occupier, are not amenable to judicial review.

51. As mentioned, there is one rider. The Director is not seeking to recover possession by means of legal proceedings like any ordinary private landlord. The Clearance Notice of 6 July 2010 was issued under Section 6 of the Land (Miscellaneous Provisions) Ordinance Cap 28.

52. That ordinance provides for matters relating to Government land. After resumption, the land in question becomes Government land and the Director, as the designated authority under the Schedule to the Ordinance, can give a notice under Section 6 requiring any unauthorized occupation of the land to be ceased. Section 6 reads as follows,

‘(1) Subject to subsection (2A), if unleased land is occupied, otherwise than under a licence or a deed or memorandum of appropriation, the Authority may cause a notice, requiring the occupation of the land to cease before such date as may be specified in the notice, to be posted in one or more places –

(a) on or near the land; or

(b) on any property or structure on the land.

(2) If the occupation of unleased land does not cease as required by a notice under subsection (1), any public officer, or other person, acting on the direction of the Authority may, with the assistance of such other public officers or other persons as may be necessary-

(a) remove from the land the persons (if any) thereon; and

(b) take possession of any property or structure on the land.

(2A) Notwithstanding subsection (1), where –

(a) a structure is being erected on or over unleased land, otherwise than under a licence or a deed or memorandum of appropriation; or

(b) a structure has been erected on unleased land, otherwise than under a licence or a deed or memorandum of appropriation, and the Authority is reasonably satisfied that the structure is not being habitually and bona fide used, any public officer, or other person, acting on the direction of the Authority may, with the assistance of such other public officers or other persons as may be necessary, and without giving any notice –

(i) remove from the structure any person or property therein;

(ii) demolish the structure; and

(iii) take possession of such property and of any property resulting from the demolition of the structure.

(3) Any property or structure of which possession is taken under subsection (2)(b) or subsection (2A)(iii) shall become the property of the Government free from the rights of any person and may be demolished or otherwise dealt with as the Authority thinks fit.

(4) Any person occupying unleasedland, otherwise than under a licence or a deed or memorandum of appropriation, who without reasonable excuse does not cease to occupy the same as required by a notice under subsection (1) shall be guilty of an offence and shall be liable on conviction to a fine of $10,000 and to imprisonment for 6 months.

(4A) Any person who –

(a) is engaged in any way in the erection of a structure on unleased land; or

(b) arranges or directs the erection of a structure on unleased land, being a structure being erected otherwise than under a licence or a deed or memorandum of appropriation, shall be guilty of an offence and shall be liable on conviction –

(i) where the offender has been engaged in any way in, or has arranged or directed, the erection of the structure for the purpose of disposing of the structure for gain for himself or another, to a fine of $50,000 and to imprisonment for 1 year; and

(ii) in any other case, to a fine of $10,000 and to imprisonment for 6 months.

(5) The Authority may recover from any person convicted of an offence under subsection (4) or (4A) any cost incurred in or arising out of the demolition of any property or structure under subsection (2A) or (3) and the exercise of the powers conferred by this section.’

53. Thus, the issue of the Clearance Notice has the following legal consequences. First, the Director may direct any persons or public officer to remove any persons and property remaining on the land and take possession of the property. He may also direct the demolition of the structure in the land, see Section 6(2). This is essentially the remedy of self-help. Instead of coming to court to seek an order for possession and then enforcing the order for possession, the Director is given the statutory authority to clear the site after issuing a Section 6 notice.

54. Second, the property so taken would become the property of the Government free from the rights of any person, see Section 6(3). In other words, any personal belongings or chattels removed at the direction of the Director after the issue of a clearance notice would be forfeited.

55. Third, any person remaining in occupation of the land after the notice without reasonable excuse shall be guilty of an offence and liable to be sentenced to imprisonment for up to 6 months, see Section 6(4).

56. Fourth, the Director may recover against a person so convicted the costs of demolition of any structure or property on the land, see Section 6(5).

57. It should further be noted that the exercise of the authority under the Ordinance is buttressed by Section 16 of the Ordinance as regards offence in respect of obstruction to the carrying out of any function under that authority as well as Sections 17 and 18 as to the use of force in the exercise of that authority and the Director and the Government’s immunity from claims.

58. Hence, the Director has considerable power in dealing with unauthorized occupation of Government land which goes much beyond the power that can be exercised by a private landowner. Though the issue of a Section 6(1) notice can be regarded as the commencement of the eviction process, it has ramifications beyond the recovery of possession of the land in question. It has potential criminal consequences for the person in occupation. It can affect the legal ownership of chattels remaining in the land.

59. In view of that, I think the exercise of the power of the Director under Section 6(1) has a sufficiently public element to render it susceptible to judicial review even though the primary objective of the Director is the recovery of possession of the land as the land agent of the Government.”

39.In substance, Lam J analysed that the source of authority in the recovery and enforcement steps taken by the Director by issuing a s 6 Notice (instead of through legal proceedings like a private landlord) was under s 6 of LMO, which attracted various statutory consequences that might visit the person served with such a notice.  The considerable statutory power thus afforded to the Director is much wider than that enjoyed by a private landlord in dealing with unauthorised occupation of land.  As such, applying the principles in Anderson Asphalt, His Lordship was of the view (see paragraph 59 of the judgment) that the Director’s exercise of the power under s 6(1) of LMO has a “sufficiently public element” to render it susceptible to judicial review.  It is therefore the statutory source of power together with the various significant statutory consequences attached to the s 6 Notice that have given sufficient public element to the act in issuing the notice.

40.This reasoning is specific and directed on the operation and effect of s 6 of the LMO.  It has no general application to the Director’s other decisions, say, in the determination of a lease or (as in the present case) a licence over a piece of Government land.  These are separate and independent decisions.

41.Further, implied in Lam J’s reasoning is that, had the Director decided to take legal proceedings to evict the persons occupying unleased or unlicensed Government land, such a decision is prima facie not amenable to judicial review since the Director is only acting as the land agent of the Government and in the performance of a private commercial function (see paragraphs 50 and 51 of the judgment).

42.Thus, if in the present case, the Director after making the 1^st Decision had decided to take legal proceedings (instead of issuing a s 6 Notice) to recover the land from the applicant (who continues to occupy the land after the cancellation of the GLLs), the said enforcement decision would not be subject to judicial review.  As mentioned above, in the letter dated 19 March 2012 (which contained the 1^st Decision) and another letter dated 2 May 2012, DLO/TP had specifically and separately referred the applicant to condition 4 of the General Conditions of the 2 GLLs of her contractual obligation to clear the land once they were cancelled. 

43.In the premises, if Mr Dykes’ above submissions on inconsistency are correct, whether the 1^st Decision itself is amenable to judicial review would then be dependent on the Director’s subsequent decision on what enforcement steps are to be taken (which is a separate decision from the 1^st Decision).  This cannot be right. 

44.In my view, whether the 1^st Decision is susceptible to judicial review should be viewed and analysed in the context of its own nature, and that should not change by reason of what enforcement decision is to be later taken to recover the land following the cancellation of the 2 GLLs. 

45.As I have concluded above, analyzing the nature of the 1^st Decision by applying the Anderson Asphalt principles, it is not amenable to judicial review.

46.I therefore also reject Mr Dykes’ further argument and conclude that the 1^st Decision is not susceptible to judicial review.

47.In relation to the 2^nd Decision, even it is arguably susceptible to judicial review, the only basis in the proposed judicial review to challenge the 2^nd Decision is that the 1^st Decision should be quashed (if it is amenable to judicial review).  In light of my conclusion that the 1^st Decision is not susceptible to judicial review, there is therefore also no or no realistic prospect that the proposed judicial review against the 2^nd Decision would succeed.

48.For these reasons, I would not grant leave to the applicant to apply for judicial review against both the 1^st and 2^nd Decisions.

49.Mr Mok for the Director alternatively submits at the hearing that leave should be refused also on the basis that the proposed judicial review is academic and would not serve any useful purposes.  This is so (Mr Mok argues) as the applicant has not set out in the original or draft Amended Form 86 that there are any factual grounds relied on by her to say why she was not in breach of the 2 GLLs and that they could not be cancelled.  In particular, the draft amended Form 86 is drafted in vague terms insofar as it relates to any factual basis to support the application.  Mr Mok emphasizes that such vague allegations are not acceptable in judicial review applications[9].

50.Mr Dykes however says the draft Amended Form 86 has referred to the correspondences between the applicant and DLO/TP before the 1^st Decision.  In the proposed judicial review, the applicant is thus relying on the contents of these correspondences as the basis to say why the 2 GLLs should not be cancelled.

51.I have read the applicant’s said correspondences (as exhibited to the affirmation filed in support of the original Form 86).  I have also set out in paragraphs 12 to 19 above what the applicant has summarised as the gist of the contents of these correspondences in the draft Amended Form 86.

52.In my view, there is much force in Mr Mok’s submissions that none of these amount to any factual basis to say why there were no breaches of the 2 GLLs and that the licence could not be cancelled pursuant to their terms.  The contents of the correspondences are more in the nature of mitigation to explain that these breaches were only intended to be temporary.  They also amount to seeking the indulgence of the Lands Department to allow the applicant further time to rectify the breaches and not to cancel the GLLs. 

53.Notwithstanding these, the applicant at paragraph 41A of the draft Amended Form 86 however states as follows:

“41A. The Applicant contends that the present case involved factual issues of a kind which a judicial review court cannot deal within the jurisdiction conferred by O 53.

(a) With regards to a ‘structure constructed with bricks and iron bars frames’, ‘pond and wood bridge’ and ;brick walls’ complained of by DLO/TP, whether the Applicant had reasonable excuses arising from necessity and/or security reasons to erect the same. The court is not equipped to make a finding as to whether the Applicant acted as aforesaid if the DLO/TP disputes this and says that the Applicant had some other motive for erecting the structures.

(b) With regard to the temporary ‘placement of a container on licence area without permission’ complained of by DLO/TP, whether any approval of the Respondent is required for this use of the licence area in view of the judgment in: Attorney General v Melhado Investment Ltd [1983] HKLR 327. The court is not equipped to make findings of fact which may enable the Applicant to claim the benefit of the principle in this case.

(c)  With regard to ‘illegal enclosure and occupation of Government land adjacent to licence area’ complained of by DLO/TP, whether it was the mistake or neglect in 2006 of the Respondent and his delegated surveyor Chesterton Petty Ltd who failed to clarify the relevant boundaries of lots that caused the said illegal enclosure and occupation of land adjacent to licence area.  The court will not be able to determine whether the surveyor made a mistake without receiving evidence which is likely to be disputed.”

54.In gist, the applicant seeks to contend that (a) the matters set out in those correspondences to explain the “breaches” (if proved or accepted) amount to legal excuses to say why the 2 GLLs should not be cancelled, and (b) these need to be decided by a competent tribunal set up in compliance with art 10 of the HKBOR.

55.In my view, if the 1^st Decision is susceptible to judicial review, I cannot say at this stage that these contentions are wholly unarguable so that the proposed judicial review is academic and would serve no useful purposes.  I would therefore not have refused leave on this basis alone.

E.  Conclusion

56.For the reasons given above, I refuse the application for leave.

57.Given that the Director appears at the hearing at the court’s direction to assist, I would make an order nisi that there be no order as to costs in the application.  This order shall be made absolute 14 days from today unless any of the parties applies to vary it by Summons.

Mr Philip Dykes SC, leading Mr Matthew Chong, instructed by Wong Poon Chan Law & Co, for the applicant

Mr Johnny Mok SC, leading Mr Anthony Chan, instructed by the Department of Justice, for the putative respondent

Please refer to CACV170/2012 for the relevant appeal(s) to the Court of Appeal.