Lister Assets Ltd and Others v. The Chief Executive in Council

HCAL 78/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 78 OF 2012

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Before: Hon Lam J in Court

Date of Hearing: 20 July 2012

Date of Judgment: 20 July 2012

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J U D G M E N T

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1.I shall refuse leave in this matter.

2.It is not disputed that the Railway Ordinance does not mandate that the Chief Executive in Council must give reasons for its decision in approving a scheme.

3.At common law, there is no general duty on an administrative body to give reason.  Rather, the duty may arise as a facet of the duty to act fairly in certain cases.  The same applies to the exercise of power by the Chief Executive in Council.  Guidance as to how the duty to give reason could arise can be found in R v Secretary of State for Home Department ex p Doody [1994] 1 AC 531, R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 and R (on the application of Hasan) v Secretary of State for Trade and Industry [2009] 3 All ER 539.

4.Much depends on the facts of the case and the nature of the decision in question.

5.As Mr Dykes SC quite rightly conceded, we are not dealing with a decision of the Chief Executive in Council [“CE in C”] which is aberrant on its face.  Nor are we concerned with a decision which, like what happened in Smart Gain Investment Ltd v Town Planning Board HCAL 12 of 2006, 6 November 2007, plainly proceeds on some obvious errors of facts or, for that matter, errors of law.

6.Apart from the absence of reasons, Mr Dykes was also unable to pinpoint any unfairness in terms of the placing of the objections of the Applicants before the CE in C.

7.As Mr Chan pointed out, the process that had been undergone as a matter of practice, involved the consideration of the objections by an independent panel and it was a fair one.  Though, as pointed out by Mr Dykes, this is not a feature in the statute, I think this is a relevant matter to be taken into account in the overall consideration as to whether the duty to act fairly has been infringed.

8.Mr Dykes made the submission that the Applicants are entitled to have their objections in an unmediated form placed before the CE in C.  This is correct.  But there is nothing to suggest that this had not been done.  And it is not a ground of challenge in the Form 86 that this had not been done.  Had that been the case, I would have expected a short affirmation from the Putative Respondent to inform the court as to the factual position.

9.In my judgment, this case does not fall into the category of cases where, because of the fundamental nature of the interest of the person affected by a decision, the decision-making body should give reasons.  The interests of the Applicants are their concern about impact on the redevelopment potential of their properties.  That concern is addressed by the scheme of compensation under the Ordinance and the disagreements between the geo-technical experts can, and should, be resolved in the compensation proceedings if necessary.  It cannot be expected that the CE in E would determine which expert is right and which is wrong before approving the scheme.

10.As I see it, rather than adjudicating on the competing views of the experts, the CE in C had to consider the scheme on a macro-basis.  As in most cases concerning public projects of this nature, there are competing interests and the CE in E has to make a decision in terms of balancing one interest against others.  The CE in C has to make a decision based on what it considers to be in the best interest of Hong Kong as a whole.

11.Viewed in that light, the decision to approve the scheme in the wake of this objection from the Applicants is perfectly rational and understandable.  As I said, Mr Dykes, acting quite properly, did not complain that the decision is aberrant.

12.The Applicants relied on the matters set out at paras 68 to 84 of the Form 86 and submit the circumstances give rise to a duty to give reason.

13.I do not think this is an arguable proposition. I have considered those matters in the light of submissions from counsel.  I agree with Mr Chan that such matters, whether taken individually or collectively, cannot arguably give rise to a case for imposing a duty to give reasons.  The rights of the Applicants are safeguarded by the compensation scheme.  And it is to be noted that there is no challenge to the constitutionality of the statutory scheme in the Form 86.  If the Applicants actually suffer any real damages or losses as a result of the scheme, they can get compensation under the statutory scheme and there is established impartial and fair means for the assessment of the proper compensation.

14.As I said, the disagreements between the experts are not to be resolved by the CE in C.  If necessary, they can be debated and determined in the compensation proceedings.

15.There is no basis for suggesting that the decision-making process has gone astray, as in other cases where the decision of CE in C had been successfully challenged (even though no reasons were given by the CE in C in those cases).  Those other cases demonstrated, however, that the absence of reasons from the CE in C did not insulate the decisions from challenge by judicial review when proper grounds are present.

16.Notwithstanding what was said at paras 78 and 79 of the Form 86, I do not see any basis for suggesting that the objection has not been properly before the CE in C or that it had not been considered fairly.

17.Applying the overriding criteria of a duty to act fairly, I do not think the Applicants have any reasonably arguable basis for contending the CE in C did not act fairly by not giving reasons and refusing to supply the requested documents in this case.

18.Therefore leave is refused.

Mr Philip Dykes, SC, instructed by Woo, Kwan, Lee & Lo, for the Applicants

Mr Abraham Chan, instructed by the Department of Justice, for the Putative Respondent

Please refer to CACV172/2012 for the relevant appeal(s) to the Court of Appeal.