Hero Ltd and Others v. The Director of Planning

CACV 231/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2011

(ON APPEAL FROM HCAL 3/2011)

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BETWEEN

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Before: Hon Cheung CJHC, Kwan and Chu JJA in Court

Date of Hearing: 10 October 2012

Date of Judgment: 10 October 2012

Date of Reasons for Judgment: 11 October 2012

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REASONS FOR JUDGMENT

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Hon Cheung CJHC (giving the judgment of the court):

1.On 21 June 2012, we dismissed the applicants’ appeal from the judgment dated 3 October 2011 of Lam J (as he then was) whereby the applicants’ application for judicial review was dismissed with costs. We gave our reasons on 17 July 2012. On 10 October 2012, we dismissed the applicants’ application for leave to appeal from our judgment to the Court of Final Appeal. We now give our reasons.

2.It is unnecessary to repeat the issues involved in the appeal or the reasons for our decision.  They have been set out fully in our reasons for judgment.

3.The applicants rely on three grounds to seek leave.  First, they rely on the “as of right” limb under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Mr Tim Kwok, for the applicants, argues that the issue of whether the applicants are entitled to develop a columbarium on the properties in question directly involves a claim or question to or respecting property or civil right within the meaning of the subsection as explained by the Court of Final Appeal in China Field Ltd v Appeal Tribunal (Buildings)(No 1) (2009) 12 HKCFAR 68, paras 23 and 24.  Counsel submits that the building in question houses around 2,000 caskets and since July 2010 the applicants’ business has entered into 190 licence agreements and 9 charity licence agreements for rights to use the facilities in the building.  The sum of $54,720 (plus management fee) is charged for each licence.  The value of the property right at stake is therefore $109,440,000 ($54,720 x 2,000), plus management fees.  Counsel submits that the order of the Court of Final Appeal upon disposing the appeal would immediately confer a financial benefit or detriment upon the applicants in the quantified amount.

4.We reject this argument.  The application for judicial review concerns the Director of Planning’s decision to issue the enforcement notices all dated 22 October 2010.  The enforcement notices relate to the actual use of the building as a columbarium in contravention of the relevant Outline Zoning Plan.  According to the evidence filed by the applicants themselves, by June 2011, there were only 13 occupied cupboards or caskets in the building and that figure was increased to 14 in July 2011.  The number of occupied cupboards or caskets at the time of the enforcement notices must have been less.

5.In the premises, there is no question of the application for judicial review involving property right of a value reaching the threshold amount of $1 million.

6.As regards the alleged licence agreements, there are no factual findings regarding their making, nor is there any adjudication by the court as to the rights and obligations of the parties to the agreements, particularly in case where they cannot be performed due to contravention of the Outline Zoning Plan.  This is so because the agreements merely form part of the background against which the legality of the decision to issue the enforcement notices has to be examined.  At best, these agreements involve potential rights or interests which have “some connection” with the application for judicial review, which is the subject-matter of the appeal (China Field at para 23); but they do not constitute the subject-matter of the appeal.

7.Secondly, the applicants rely on the discretionary limb under section 22(1)(b).  They argue that the intended appeal raises a question of great general or public importance, that is, whether the words “shrine” and “columbarium” occurring in planning documents in a non‑statutory context are mutually exclusive or whether a columbarium can also be a shrine.  Counsel submits that given the extremely limited supply of columbaria in Hong Kong, a final determination of this question would have “far reaching” implications.

8.For reasons we gave for dismissing the appeal, the applicants’ arguments in support of their contention are not reasonably arguable.  We refuse to exercise our discretion to grant leave.

9.Finally, the applicants rely on the “or otherwise” limb also found in section 22(1)(b).  Counsel submits that the value of the property right is significant and the intended appeal is not one which is so lacking in merit that leave should be refused.

10.For reasons explained, we disagree with counsel on both points.

11.The application for leave to appeal was accordingly refused with costs, together with a certificate for two counsel.

Mr Tim Kwok, instructed by Benson Li & Co for the applicants

Mr Johnny Mok SC and Mr Abraham Chan, instructed by the Department of Justice for the respondent