Leung Hon Wai v. Director of Environmental Protection and Another
Read the full judgment text of HCAL 49/2012 on BabelCite. This High Court CFI judgment was delivered on 26 July 2013.
1. This judicial review relates to a project (“the project”) known as the Development of the Integrated Waste Management Facilities Phase I. The project is to construct and operate the Integrated Waste Management Facilities (“IWMF”) at either a Shek Kwu Chau (“SKC”) site (to the west of Cheung Chau and south of Lantau Island) or a Tsang Tsui Ash Lagoon site in Tuen Mun. The IWMF is commonly known as the muncipal wastes incinerator.
Cited by 3 cases · Cites 8 cases
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HCAL 49/2012 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 49 OF 2012 ---------------------------------
----------------------- J U D G M E N T ----------------------- A. INTRODUCTION 1.This judicial review relates to a project (“the project”) known as the Development of the Integrated Waste Management Facilities Phase I. The project is to construct and operate the Integrated Waste Management Facilities (“IWMF”) at either a Shek Kwu Chau (“SKC”) site (to the west of Cheung Chau and south of Lantau Island) or a Tsang Tsui Ash Lagoon site in Tuen Mun. The IWMF is commonly known as the muncipal wastes incinerator. 2.The project falls within the definition of “designated project” under the Environmental Impact Assessment Ordinance (Cap 499) (“the Ordinance”). What it means practically is that, before the project could go ahead, it requires (a) the Director of Environmental Protection (“the Director”) to approve an environmental impact assessment report required to be compiled for the project under the Ordinance, and (b) the Director to grant an environmental permit to construct and operate the same. 3.In January 2012, the Director approved the relevant environmental impact assessment report (“the EIA Report”) compiled for the project, and also later granted the environmental permit. 4.In this judicial review, the applicant Mr Leung (who is a resident of Cheung Chau) challenges:
5.The applicant seeks to quash the 1st, 2nd and 3rd decisions (collectively “the decisions”). 6.He raises eight grounds of judicial review. The first seven grounds relate to the 1st and 2nd decisions, while the eigth ground concerns the 3rd decision. In gist:
7.The applicant is represented by Mr Yim (together with Mr Pun) in this application. The Director and Town Planning Board (“TPB”) oppose the application and are represented by Mr Johnny Mok SC, leading Ms Eva Sit. 8.I would deal with each of these grounds in detail below. But first, I would set out briefly the relevant background. B. BACKGROUND B1. The Ordinance 9.For the present purposes, under the Ordinance[1]:
10.The technical memorandum is to be issued by the Secretary for the Environment (“the Secretary”) under s 16 of the Ordinance. Up to the present, there has only been one such technical memorandum (“the TM”) that has been issued by the Secretary. The TM is not a subsidiary legislation. B2. The project and the EIA Report 11.The Environmental Protection Department (“EPD”) is the project proponent of the project. The Director is the head of the EPD. 12.In March 2008, the EPD submitted an application to the Director for an environmental impact assessment study brief (“SB”) under s 5 of the Ordinance for the purposes of the project. 13.The Director issued the SB in May 2008. 14.An environment impact assessment report for the project was first submitted in January 2011 for approval, and was exhibited for public inspection for a month from 17 February 2011. 15.At the same time, the Government indicated that, as between SKC and Tsang Tsui Ash Lagoon, it had identified the artificial island near SKC as the preferred site to develop the first modern IWMF, subject to the approval of the EIA report. 16.Further, on 21 March 2011, a subcommittee of the Advisory Council discussed the EIA report and recommended it to the Advisory Council that it be approved with conditions. The Advisory Council endorsed the report with conditions on 11 April 2011. 17.On 24 October 2011, EPD submitted a revised EIA report. The revised report was exhibited for public to comment for a month from November 2011. 268 sets of written comments were received from members of the public. 18.In December 2011, the Advisory Council endorsed the EIA report with conditions. 19.On 17 January 2012, the Director approved the revised EIA report for the project dated November 2011 (ie, the EIA Report) under s 8(3) of the Ordinance. 20.On 19 January 2012, the Director granted the environmental permit (“the EP”) required to construct and operate the project under s 10 of the Ordinance. The EP was issued to the Director (being the head of EPD, the project proponent) and signed by a Senior Environmental Protection Officer for the Director. 21.On 20 April 2012, the Government presented the project to the Panel on Environmental Affairs of the Legislative Council in a special meeting. Members of the panel were invited to support the Government’s proposal for upgrading the project to a Category A work with a view to seeking the Financial Committee’s approval in June 2012. However, the Panel declared that it would not endorse the proposal. 22.As a result, the Environment Bureau indicated in a public statement that the Government would be unable to complete the funding request before the term of that Administration ended on 30 June 2012. 23.On the other hand, four leave applications[2] were made in April 2012 by four different applicants to judicial review the decisions. 24.On 7 June 2012, after hearing counsel for both parties under all four applications, leave was granted by this court to the applicants to proceed with the judicial review based on the their respective Amended Form 86. It was further ordered that the respective applications under HCAL 28, 46 and 65/2012 be stayed pending the determination of the judicial review application under the present proceedings (ie, HCAL 49/2012). 25.This is now the hearing of Mr Leung’s judicial review. C. THIS JUDICIAL REVIEW General observations 26.As I have mentioned above, most of the grounds raised in support of this judicial review are about the complaints that the EIA Report does not meet the requirements of the TM and the SB. The contesting arguments therefore evolve around the proper meaning of the relevant provisions under these two documents. It is therefore perhaps useful to set out some general principles developed by the authorities on the question of construction of the TM and the SB. 27.First, it is not disputed that an environmental impact assessment report shall meet the requirements of the TM and the SB (s 6(1) of the Ordinance). Whether the report does meet these requirements is a question of law for the court when the Director’s decision made under s 8(3) of the Ordinance is being judicially reviewed. The court should find the meaning of the TM and the relevant study brief and the procedure they prescribe in order to determine the scope of the Director’s power to approve the relevant report: Shiu Wing Steel Ltd v Director of Environmental Protection[3], at paragraphs 23, 26-28. 28.Second, the question as to whether the relevant report meets the requirements of the TM and the relevant study brief is to be determined objectively. It is a question of construction, although the TM and the study brief are to be construed not as legislative instruments but as they would be understood by an expert risk assessor and should be read in a “down-to-earth way”. Technical evidence may be needed to show that a report meets or does not meet the requirements so determined: Shiu Wing, supra, paragraphs 23, 29-30. 29.Third, the TM is a document which applies generally to all designated projects, while a study brief is project-specific. The study brief sets the agenda for the rest of the process: Chu Yee Wah v Director of Environmental Protection [2011] 5 HKLRD (CA) 469,at paragraph 31 per Tang VP, adopting the observations of Fok JA’s judgment at first instance: [2011] 3 HKC 227 at paragraphs 46 and 47. I further agree with the submissions of Mr Mok SC that, as a matter of construction, the general requirements of the relevant provisions in the TM should be informed of and prescribed by what have been set out at corresponding provisions of the SB (if any), which is made specifically for the project.[4] 30.Fourth, although it is a matter of construction for the court to decide what is required by the TM and the SB, it is often a question of professional judgment what information is required to be contained in the relevant EIA report to enable the Director to perform her duties. Unless the judgment is Wednesbury unreasonable, the court will not interfere: Chu Yee Wah, supra, at paragraph 84. 31.Bearing these general principles in mind, I now look at each of the grounds raised in support of this judicial review. Ground 1 – The EIA Report is not in compliance with the requirements for ecological assessment in the TM and SB 32.Annex 16 of the TM set outs the Guideines for Ecological Assessment. Paragraph 3.1 of it provides that any project that is likely to result in adverse ecological importance shall not normally be permitted unless:
33.The SB equally provides at paragraph 3.7.5.1 that the applicant shall follow the criteria and guidelines stated in Annexes 8 and 16 of the TM for evaluating and assessing ecological impact. 34.The EIA Report has identified that the project would have a significant ecological impact on Finless Porpoises having their habitat at the nearby waters of SKC. In particular, the report:
35.Mr Yim submits that under paragraph 3.1(a) of Annex 16 of the TM, the project “shall not normally be permitted” unless three conditions are met: (a) “the project is necessary”; (b) “it has been proven that no other practical and reasonable alternatives are available”, and (c) “adequate on-site and off-site mitigation measures are to be employed”. 36.Mr Yim contends that this part of the ecological assessment in the EIA Report does not meet all these three conditions. It therefore does not comply with paragraph 3.1 of Annex 16 of the TM (and thus also paragraph 3.7.5.1 of the SB). 37.First, it is argued that the EIA Report does not contain any references or discussion to show that:
38.However, after seeing the evidence and arguments of the respondents, Mr Yim confirms at the hearing that he would no longer pursue this part of the challenge. 39.Mr Yim therefore only focuses on his second complaint under this ground: that is, the EIA Report fails to satisfy the requirements of the TM and the SB in relation to the provision of adequate off-site mitigation measures. I would explain this further. 40.The express requirements concerning off-site mitigation measures are set out in Annex 16 of the TM as follows:
41.Thus, under paragraph 5.4.5 of Annex 16 of the TM, any off-site mitigation measures proposed have to be (a) on a “like for like” basis insofar as it is practicable, (b) technically feasible and practicable, and (c) that their feasibility, constraints, reliability, design and method of construction, time scale, monitoring, management and maintenance shall be confirmed during the EIA study. 42.Paragraphs 7b.8.4.1 to 7b.8.4.8 of the EIA Report set out the proposed off-site mitigation measures as follows:
43.In light of the above, Mr Yim submits that the designation of 700 ha of waters so identified to be a marine park is expressed in the EIA Report to be subject to further studies and the statutory process stipulated in the MPO (see in particular paragraphs 7b.8.4.3-7b.8.4.5 of the EIA Report). In the premises, whether the proposed marine park is in fact appropriate to compensate the loss of habitat for the Finless Porpoise caused by the construction of the project and whether it can in fact be carried out by satisfying all the statutory requirements of the MPO[11] are simply uncertain. 44.It is therefore contended that the off-site mitigation measures proposed in the EIA Report by a commitment to designate certain water areas as a marine park is nothing more than a blank proposal without any discussion or assessment of the measures’ feasibility, effectiveness or practicality as required by Annex 16. There is also no guarantee that it can be carried out. It is therefore also in breach of the TM[12]. 45.Further or alternatively, Mr Yim argues that the Director’s acceptance of the proposed off-site mitigation measures was also Wednesbury unreasonable in light of the above. 46.With respect, I am not persuaded by Mr Yim’s arguments. 47.Under this challenge, it is Mr Yim’s central contention that the proposal for off-site mitigation measures by a commitment to designate a 700 ha marine park is a blank proposal, and without any assessment of its feasibility, effectiveness or practicality as required under Annex 16 of the TM. 48.In relation to these arguments, one must note that the most significant residual ecological impact on the Finless Porpoise as identified in the report is the loss of 31 ha of their habitat[13]. In this regard, it should also be noted that paragraph 5.4.5(d) of Annex 16 of the TM requires the off-site mitigation measures to be on a “like for like” basis “to the extent practicable”. 49.At the same time, it has been identified in the report (based on the information from a series of survey over the years) that the waters between SKC and Soko Islands is a hotspot with the highest sightings of Finless Porpoise. The proposed 700 ha marine park in the nearby waters of SKC is within such area. 50.In light of the above, I am satisfied that the said off-site measures as proposed in the EIA Report meets the requirements of the relevant parts of Annex 16 the TM, in providing for its feasibility, effectiveness and practicality as required:
51.Mr Yim however contends at the hearing that, given the need to satisfy all the statutory procedures in the MPO, it is uncertain whether the measures could in fact be implemented. It therefore simply cannot satisfy the relevant requirements in the TM. 52.I am unable to accept this submission. 53.What the TM requires under paragraph 5.4.2 of Annex 16 of the TM is that all mitigation measures recommended shall be “feasible” to implement. Given that the nature of an EIA report is to assess the impact of a designated project on the environment, and the requirement of compensatory measures is to minimise any such impact, properly construed in that context, I am of the view that the meaning of the word “feasible” means that the proposed measures are reasonably possible to be practically implemented. This construction is consistent with the nature of the scope and type stipulated to be required of these measures as provided at paragraph 5.4.5, which focuses on practicability and feasibility. 54.Understood as such, I am satisfied that the proposed off-site mitigation measures by way of a commitment to designate a 700 ha marine park in the nearby waters of SKC, subject to the completion of the statutory process of the MPO, is one that is reasonably possible to be implemented. I repeat my observations at paragraph 50(2) above. 55.Mr Yim further argues that the express statement in the EIA Report to call for a “further study” in relation to the proposed off-site measures does not satisfy the requirement under Annex 16 paragraph 5.4.5(g). That paragraph of the TM states that the proposed measures’ feasibility, constraints, reliability, design and method of construction, time scale, monitoring, management and maintenance shall be confirmed during the EIA Report. 56.For the reasons set out in paragraph 50 above, I already held that these elements have been confirmed in the EIA Report. Insofar as the further study is concerned, the unchallenged evidence shows that it is not another EIA report, but one that is to determine (involving various relevant government departments) the exact extent and location of the proposed marine park, and its detailed management plan. The management plan is to be submitted to the Director for approval before the commencement of construction works for the IWMF as required under the environmental permit[18]. This is also required to draw up the draft map to be submitted to the Chief Executive in Council for proposing to designate a marine park by the Marine Parks Authority under the MPO. 57.These further studies thus in my view do not affect the confirmation of the proposed measures’ feasibility, constraints, reliability, design and method of construction, time scale, monitoring, management and maintenance already provided in the EIA Report, but are only to provide for the fine tuning for implementing the measures. 58.I therefore also reject Mr Yim’s submissions that because of the need to conduct further studies as suggested at paragraphs 7b.8.4.5 - 6 of the EIA Report, paragraph 5.4.5(g) of Annex 16 of the TM is not complied with. 59.For these reasons, I am satisfied that the EIA Report has complied with the relevant requirements in the TM and the SB in relation to its ecological impact assessment. For the same token, I do not find the Director’s acceptance of EIA Report to have complied with these requirements to be Wednesbury unreasonable. 60.Ground 1 of the judicial review must therefore fail. Ground 2 - The EIA Report fails to comply with the requirements for health impact assessment in the TM and the SB 61.This ground of challenge relates to the EIA Report’s health impact assessment. It is contended that the assessment fails to meet certain requirements under the SB and the TM. 62.Before examining the complaints in detail, it is helpful to set out the relevant parts of the SB first. 63.Section 3.7.8 of the SB provides for the health impact assessment. It states:
64.Paragraph 3.7.8.1 of this section therefore provides that when the project proponent carries out the health risk assessment, it has to pay particular attention to assess four matters, namely, (a) aerial emissions from the IWMF, (b) biogas from the sorting and recycling plant, (c) fugitive emissions during transportation, storage and handling waste and ash, and (d) any other potential accidental events. Further, under the other paragraphs of this section, the assessment required to be carried would have to assess the impact of, among others, persistent organic pollutants (“POPs”) as a form of toxic pollutants. 65.Under this ground, Mr Yim contends that the EIA Report does not comply with the requirements for health impact assessment in the TM and SB in failing to:
66.Alternatively, these parts of the assessment are (Mr Yim further says) Wednesbury unreasonable. 67.The complaints therefore can be divided into two groups:
68.I would examine these two complaints in turn. Complaint 1 - The assessment of “other potential accidental events” 69.In the EIA Report, section 9b.5 deals with “Health Impacts Associated with other Potential Accidental Events”. It is thus under this section that the assessment of subject matter (d) above (ie, any other potential accidental events) is related to. 70.Paragraph 9b.5.1.1 thereof refers to Table 9b.10 for listing out the “possible accidental events associated with health impacts and their corresponding preventive measures”. In the column entitled “Risks”, the following items are set out:
71.Mr Yim submits that this part of the health risk assessment is not in compliance the SB in the following ways:
72.On the other hand, it is Mr Mok’s submissions that on a proper construction of the whole section:
73.Thus, Mr Mok further says, this part of the EIA Report is in compliance with the requirements under the SB. 74.It can immediately be seen that this complaint is essentially a question of construction: Whether (a) the relevant paragraphs under section 3.7.8 of the SB require the identification of the potential actual accidents that would lead to the “other accidental events”, and (b) the step under paragraph 3.7.8.2(ii) is required to be carried out for “the other accidental events”. 75.In my view, in construing objectively paragraphs 3.7.8.1 and 3.7.8.2, the following elements are of significance. 76.As a start, under paragraph 3.7.8.1, a health risk assessment is required over both the construction and operation phases of the project. 77.Further, under that paragraph, it is said that when carrying out the health risk assessment, special attention is to be paid to the four subject matters identified, namely, (a) aerial emissions from the IWMF, (b) biogas from the sorting and recycling plant, (c) fugitive emissions during transportation, storage and handling waste and ash, and (d) any other potential accidental events. A few things arise from this sentence:
78.Insofar as paragraph 3.7.8.2 is concerned, all it means is that when carrying out the entire health risk assessment of the project, four key steps must be considered. As a matter of language, it does not say that all those four steps must necessarily apply to each of the four subject matters identified under paragraph 3.7.8.1. 79.Moreover, as I think rightly submitted by Mr Mok, it is clear that not all the steps set out under paragraph 3.7.8.2 are applicable or apposite to all the four subject matters. For example, step (i) relates to the identification of risk from the dealings with solid and liquid wastes that may contain toxic pollutants. It cannot (or at least may not) be applicable to the subject matter of “aerial emissions from the IWMF”. Thus, it cannot be said (as Mr Yim suggests) that, as a matter of construction, all the four steps provided under paragraph 3.7.8.2 must be applied to each of those four subject matters identified under paragraph 3.7.8.1. 80.Therefore, on a proper construction together with the above observations, when one reads paragraphs 3.7.8.1 and 3.7.8.2 together objectively, their meanings should in my view be as follows:
81.Once so construed, the question raised under this ground of challenge is thus whether step (ii) of paragraph 3.7.8.2 is applicable to an assessment of the potential accidental events. 82.In this regard, I accept Mr Mok’s submissions that it is not, as it is practically and realistically impossible to be carried out:
83.I therefore reject the complaint that the EIA Report has not complied with paragraph 3.7.8.2(ii) of the SB in relation to the health risk assessment of “the other accidental events”. 84.Further, I accept Mr Mok’s submissions that it is not a requirement of the SB to set out every potential accident that may lead to the accidental events so identified:
85.Finally, I also reject Mr Yim’s complaint that the Table 9b.10 does not in fact even identify the “accidental events” by reference to the four items stated therein. 86.Section 9b.5 deals with health impact assessment associated with other potential accidental events. Under this section, there are the table and paragraphs 9b.5.1.1 and 9b.5.1.2. Paragraph 9b.5.1.1 says as follows:
87.Following this paragraph is Table 9b.10. The table states as follows:
88.It should be noted that on the left column (where the four items are set out), it is entitled “Risks” (but not “Accidental Events”), while the right column is entitled “Preventive Measures”, where various descriptions of the proposed preventive measures are set out by reference to each of the four subject matters. Once this table and the paragraph are read together (and the table should objectively be so read), and bearing paragraph 9b.5.1.1 in mind, objectively the table in effect identifies that:
89.One may fairly criticise the way this section of the EIA Report is presented. However, once the entire section is understood that way, I am satisfied it has as a whole identified the potential accidental events and satisfied the requirement under paragraph 3.7.8.1 of the SB in relation to “other potential accidental events”. 90.For the same reasons, the report has in compliance with paragraph 3.7.8.2(i) “systematically identified” the risks from “the hanlding, storage and disposal of solid and liquid wastes” of those accidental events. In particular, as pointed out by Mr Mok, these risks have also been so identified in the EIA Report: (a) for “handling” and “storage” at paragraphs 9b4.3.1, 4.4.2, (b) for “transport” at paragraphs 9b.4.3.1, 4.4.1, (c) for “chemical spillage and leakage” at paragraphs 6b.6.2.3, 6.3.2 and 9.1.3, and (d) for “disposal” at paragraphs 9b.5.5.1, 5.1.2 and 6.1.5. 91.Given the above conclusion, there is also no question that the Director’s decisions are Wednesbury unreasonableness in these respects. 92.This complaint must be rejected. Complaint 2 - the assessment relating to POPs 93.Mr Yim’s arguments in support of the complaint about the failure to include HCB as a POP can be summarised as follows:
94.I am unable to accept these submissions. 95.In making a reference to POPs, the SB has not defined what that term means, nor has it prescribed what should be included in them. There are no specific requirements provided under the SB as to what must be included in POPs for the purpose of the health impact assessment. It has certainly not provided that HCB must be included in the POPs. 96.It is also not Mr Yim’s contention that the term bears an universally accepted definition that HCB must be included under it. 97.It is thus a matter of professional judgment as to what should be included in POPs for the purpose of the health impact assessment, as long as POPs are included as required under the SB. 98.As mentioned above, Mr Yim has referred me to the Stockholm Convention and the Toxipedia to say POPs do and could include HCB, and that HCB is toxic and hazardous. 99.On the other hand, the evidence filed by the Director has also demonstrated that[21]:
100.In response to the Director’s above evidence, Mr Yim points to various parts of the evidence to say that the USEPA still generally recommends carefully considering various factors before deciding whether or not to include HCB and PCP for quantitative assessment. 101.In my view, all the above reinforces that whether to include HCB in the assessment of POPs as required under the SB is clearly a matter of professional judgment. In such circumstances, there is no question that there is non-compliance of the provisions under section 3.7.8 of the SB, and this court is not concerned with the merits of that judgment unless it can be shown it is Wednesbury unreasonable. 102.Despite Mr Yim’s effort, the evidence read as whole (as summarised above) shows that it is within a reasonable range of professional judgment in deciding whether or not to include HCB as a POP substance in a health impact assessment relating to modern waste incineration, in particular in the circumstances where the unchallenged evidence is that the wastes to be fed for incineration are unlikely to contain HCB and PCP. 103.In the premises, I do not think Mr Yim can even remotely show that the decision not to include HCB as a POP substance in the assessment can be said to be Wednesbury unreasonable. 104.I therefore also reject this complaint. 105.For all the above reasons, I am not persuaded that the EIA Report has not complied with paragraphs 3.7.8.1 and 3.7.8.2(ii) of the SB. Similarly, I also do not accept that the Director’s decision to approve the report is Wednesbury unreasonable. There is nothing before me that could show the identifications of various events, conclusions, and proposed measures set out in this part of the report are ones that go beyond what a reasonable person in the place of the Director could have accepted. 106.The second ground of judicial review should also fail. Ground 3 –Technology selection: failure to consider or assess reasonable alternatives 107.Section 3.6.2 of the SB provides as follows:
108.Under this ground, it is challenged that the EIA Report has failed to comply with the SB in failing to:
109.Before one could properly understand the complaint, it is necessary to first summarise the relevant parts of the EIA Report. 110.Section 2.3 of the EIA Report deals with the SB’s said requirements of technology selection. 111.By way of history, it recounts that in the “Expression of Interest” (“EoI”) exercise conducted in 2002, a total of 59 submissions were received. An Advisory Group was set up to consider these submissions, and it recommended that:
112.At paragraphs 2.3.1.2 to 2.3.1.4, it states that based on the Advisory Group’s recommendations, a review of 7 technologies was conducted, namely, (1) moving grate, (2) fluidized-bed, (3) rotary kiln incineration technologies, (4) eco-co-combustion system, (5) gasification, (6) plasma gasification and (7) pyrolysis technologies. The conclusions of that review are:
113.It therefore says that technologies (3), (4), (6) and (7) are, for the above reasons, not included for further evaluation. It then goes on to compare technologies (2) and (5) with technology (1). 114.In support of this ground, Mr Yim first submits that section 3.6.2 of the SB envisages a “clear and objective comparison” of different technologies including their “environmental benefits and dis-benefits”. Counsel therefore contends that such “comparison” should at least involve comparison of their (i) environmental impacts, (ii) health impact, (iii) efficiency in achieving the desired treatment capacity, and (iv) costs. He refers these as the “four categories” in his submissions, and I for convenience would adopt the same. 115.Mr Yim then points out that this part of the report is not in compliance with the SB for the following reasons. 116.First, in carrying out the exercise as summarised above, the report has not explained why the 7 technologies were selected over the rest of the submissions made in the EoI exercise. 117.Secondly, it is clear that the so-called “review” of technologies (3), (4), (6) and (7) are no more than stating the conclusions. It is not “objective”. It is far from “clear”. For instance,
118.Thirdly, there is no comparison of the “environmental benefits and disbenefits” regarding technologies (3), (4), (6), (7) at all. None of the four categories is discussed. Mr Yim submits that there is a complete lack of elaboration of the stated conclusions before these technologies were all eliminated. The report only purports to support the conclusions with the Advisory Group’s recommendations. However, citing the conclusion from a group of expert does not mean that the SB’s requirements are complied with. 119.Fourth, the approach adopted in the EIA Report as mentioned above is untenable and unreasonable because:
120.Fifth, as such, the “evaluation methods” adopted (both with regards to technologies (3), (4), (6) and (7) and that with regards to technology (2) and (5)) are inadequate and fall short of the SB’s requirement. Most of those are technologies or proposals properly presented to the Director but had not been considered or properly assessed. 121.Lastly, as regards the need to consider reasonable alternatives, in a recent English town planning case, City and District Council of St Albans v S of S for Communities and Local Government [2009] EWHC 1280 (Admin), 20 May 2009, Article 5.1 of the European Parliament and Council Directive (EC) 2001/42 and reg 12(2) of the Environmental Assessment of Plans and Programmes Regulations 2004 required that reasonable alternatives to the challenged policies be identified, described and evaluated before the choice was made. The environmental report produced did not attempt that task. The Secretary of State’s adoption of certain policies based on this environmental report was quashed. Mitting J said (at paragraph 21):
122.With respect to Mr Yim, I am not persuaded by his submissions. I will explain why. 123.As rightly submitted by Mr Mok, although the SB requires a clear and objective comparison of the environmental benefits and disbenefits of different technologies, it does not prescribe the evaluation criteria. Thus, it involves a professional judgment as to how such comparison should be carried out provided it is clear and objective as to its criteria and actual evaluation process. 124.In this respect, in the EIA Report:
125.Insofar as the comparison of the discarded options is concerned, it has been done in the EIA Report in the following manner. 126.For the comparison between landfilling and incineration:
127.For the comparison between other technologies and incineration:
128.For the comparison between moving grate and other incineration technologies:
129.Thirdly, I accept Mr Mok’s submissions that the applicant’s allegation that the evaluation has failed to take into account of efficiency, cost, health impact and environmental impact is without basis. Efficiency, costs and environmental impact are part of the criteria adopted in Table 2.1. As for health impact, the EIA Report at paragraph 2.3.2.2 explains that it was not compared because the most advanced flue gas treatment system would be adopted for all of the techniques reviewed to meet the most stringent air quality standard in the world, and so any one of those techniques would pose very low or insignificant risk to public health. In any event, public health risks caused by the IWMF have been separately assessed in the EIA Report. 130.Fourthly, the evaluation of landfilling, incineration, heat drying and composting has also been done:-
131.For these reasons, I am satisfied that the EIA Report through its various sections as explained above has dealt with the comparison of different technologies of their benefits and disbenefits in a clear and objective manner as required under section 3.6.2 of the SB. Mr Yim’s reliance on and District Council of St Albans does not assist him, as it is a question of whether section 3.6.2 of the SB, on a proper construction, has been complied with. 132.Mr Yim’s contentions amount to asking this court to prefer and mandate the applicant’s suggested criteria and presentation in carrying out the comparison instead of the ones adopted in the EIA Report. As I have repeatedly said, this is not within the court’s purview unless the criteria adopted in the EIA Report are Wednesbury unreasonable, which in my view is not the case here. 133.I therefore also reject Ground 3. Ground 4 – The EIA Report fails to provide a sufficient quantitative or qualitative assessment of the project’s impact on public health as required by the TM, the SB and Ordinance 134.This ground of judicial review focuses on paragraphs 9b.2.6.15 and 9b.2.6.20 of the EIA Report, which state as follows: “9b.2.6.15 Since the assessment results meet both the cancer risk and non-cancer hazard index criteria, no further analysis is presumed to be necessary.
135.At the same time, there are provisions in the Ordinance, the SB and the TM that require the assessment of the project’s impact on public health. 136.S 10(2) of the Ordinance provides:
137.Paragraphs 3.7.8.1 and 3.7.8.5 of the SB also state:
138.Sections 4.4.3(a)(i) and (v) of the TM provide: “Evaluation of the Residual Environmental Impacts: The residual environmental impacts refer to the net environmental impacts after mitigation, taking into account the background environmental conditions and the impacts from existing, committed and planned projects. When evaluating the residual environmental impacts (the net impacts with the mitigation measures in place), the following factors shall be considered:
139.Mr Yim says the EIA Report has not complied with these require ments. His submissions are:
140.Mr Yim further argues at the hearing that the report has also not complied with paragraph 3.7.8.5 of the SB in its failure to include HCB as a COPC. In this respect, he relies on his arguments raised under Ground 2 in relation to the failure to include HCB as a POP substance for assessment. 141.This ground is in my view also misplaced. 142.I agree with Mr Mok’s observation that, in essence, this ground is in effect a complaint that some other assessment benchmarks should be used instead of the one chosen in the EIA Report. As such, there is no merit in it for the following reasons. 143.This is a matter where the SB has not prescribed a specific benchmark for the project proponent to adopt in preparing the EIA Report. The SB has expressly left it to the project proponent, to be agreed with the Director:
144.In relation to that, the project proponent has chosen the HHRAP issued by the USEPA as the assessment methodology. She has then followed the requirements of the SB and HHRAP in identifying the assessment standards in the following ways:
145.In the premises, I cannot see how it could be said that the choice of standard in the EIA Report is in breach of the SB, or alternatively Wednesbury unreasonable. 146.In relation to the relevant provisions of the Ordinance and the TM relied on by Mr Yim, I also agree with Mr Mok that they do not take the complaint any further:
147.Finally, Mr Yim’s reliance on the study report “Incineration and Human Health” also does not assist:
148.Finally, insofar as the contended failure to include HCB to satisfy the requirement of paragraph 3.7.8.5 of the SB is concerned, I would reject it for the same reasons I have rejected the similar arguments raised in Ground 2 above. 149.In the premises, Ground 4 should also be rejected. Ground 5 – Failure to make assessment based on the actual IWMF facilities in the project as required by the TM, SB and the Ordinance 150.This ground initially consists of three main complaints in the Amended Form 86: (a) a failure to conduct facility specific assessment, (b) a failure to consider the impacts of PM2.5, and (c) a failure to make reference to the report entitled “Incineration and Human Health”. 151.Mr Yim has not pursued complaints (a) and (c) at the hearing. Thus, only complaint (b) needs to be considered. 152.Counsel’s arguments run as follows. 153.Paragraphs 3.7.8.1 and 3.7.8.4 of the SB (as quoted above) in essence require a health assessment to be carried out in relation to the impact of toxic pollutants contained in aerial emissions in all phases relating to the operation of the IWMF facilities. 154.Paragraph 9b.2.6.20 of the EIA Report states, in relation to “Classical COPCs (CO, SO2 and NO2)”:
155.Under complaint (b), the focus is that this conclusion of the EIA Report has not (in its quantitative assessment of the health impact of aerial emission) taken into account in its study the impact of PM2.5, a form of fine particulars of air pollution. 156.It is contended that in the 2nd edition of the 4th Report of the British Society for Ecological Medicine[36], the authors have stated and emphasised the significant adverse impact of PM2.5 on health for air pollution[37]. Mr Yim in his skeleton further relies on (a) the guideline (“the Guideline”) in the World Health Organization website to underline the obvious impact of particulate matter (in particular PM2.5) on human health, and (b) the fact that the Director has been aware of the importance of PM2.5 for quite some time by reference to the Secretary for the Environment’s answer in the LegCo on 11 January 2011. 157.As Mr Yim relies a lot on the Guideline, it is only fair to set it out in full as follows:
158.Mr Yim argues that, looking at these literatures, PM2.5 should have been included in the assessment to satisfy the requirements under the SB (given that PM2.5 falls within the general meaning of “Toxic Pollutants”). However, Mr Yim submits that this has not been done in the EIA Report:
159.Mr Yim therefore says the report has not complied with the SB. In any event, it is Wednesbury unreasonable for the Director to approve the report when PM2.5 has not been included in the health impact assessment of aerial emissions. 160.I do not agree. 161.It is clear that the SB has not provided for or defined what should be included in toxic pollutants for the assessment. Instead, by paragraph 3.7.8.3, it says for toxic air pollutants, the review list shall follow the criteria in paragraph 1.1(d) of Annex 4 of the TM. 162.As mentioned in Ground 4 above, for the purpose of evaluating air quality impact, paragraph 1.1(d) of Annex 4 of the TM refers to (a) the standards of air pollutants prescribed under the AQO promulgated under the APCO, and (b) standards of pollutants outwith the AQO be based on international standards (such as WHO or USEPA) to be agreed with the Director. 163.At the same time, paragraph 9b.2.2.6 of the EIA Report has included “Particulate matter (respirable)”, also known as PM10, as one of the identified COPCs for its health impact assessment. It has been recognised that under the present AQO, PM2.5 is not included as an independent category of air pollutant. Thus, a health assessment of the impact PM10 as air pollutants would comply with the existing AQO as prescribed under APCO. 164.In this respect, it is relevant to note that there was a similar challenge that PM2.5 was not adopted in the relevant EIA report in the case of Chu Yee Wah. In relation to this challenge, Fok JA (sitting at First Instance) in Chu Yee Wahobserved at paragraphs 185-186 as follows:
165.Fok JA’s above observations and conclusion are endorsed by the Court of Appeal in Chu Yee Wah at paragraphs 114-118 per Tang VP (as he then was). 166.These observations apply with equal force in the present case, which I fully adopt. 167.Further, with the evidence placed before me, I also accept Mr Mok’s submissions that:
168.Finally, I also agree with Mr Mok that the applicant’s contentions under this ground amount to asking this court to mandate the adoption of the WHO standards now. This cannot be right. It is pertinent to note that the current statutory standards are the AQO (under the APCO), which has been incorporated under paragraph 1.1 of Annex 4 of the TM and the relevant provisions of the SB. Although there has been discussion to revise the AQO to include PM2.5 as a separate category, at the time of the EIA Report, no political consensus had yet been reached, and that had not been adopted as the statutory AQO. For the present purposes, it is the statutory AQO that was applicable at the time of the EIA Report that matters. 169.As the court has repeatedly pointed out, the questions on environmentally acceptable standards or air quality protection in Hong Kong are questions of policy and are thus outside its purview[40]. 170.In the premises, there is no question of non-compliance of the SB, the TM and the Ordinance, nor Wednesbury unreasonableness under this challenge. 171.Ground 5 must also fail. Grounds 6 – Breach of natural justice 172.Central to this complaint is the fact that the project proponent is the Director herself. 173.Given this fact, Mr Pun[41] submits that:
174.Mr Pun’s arguments therefore raise two challenges to the 1st and 2nd decisions. First, the decisions are in breach of natural justice because the Director has in fact acted as a judge in her own cause. Second, the decisions are in any event tainted by apparent bias given that the Director was both the applicant and the judge in the EIA process. 175.I would deal with the arguments of breach of natural justice first. 176.This relates to the question of whether as a matter of fact the Director did act as a judge in her own cause in the EIA process. In relation to this, the following facts (as helpfully summarised in Mr Mok’s skeleton) are not challenged[44]:
177.In light of this unchallenged factual segregation of personnel and duties within the EPD in (a) the infrastructure planning aspect including the preparation of the EIA Report, and (b) the EIA process relating to the project, I am satisfied that the Director herself has played no actual or active role in either the planning of the IWMF (including the preparation of the EIA Report) or the approval of the EIA Report and the decision to issue the EP[52]. The Director’s name was used only nominally as the project proponent on the one hand, and the approval of the EIA Report and issue of the EP on the other hand as she is the head of the Department. 178.In the circumstances, there is no question of the Director being the judge in her own cause. The complaint of breach of natural justice is simply not established on the evidence. 179.Mr Mok has further made two alternative submissions that the ground of natural justice should still not succeed if in fact the breach was established. The first one is that the Ordinance has authorised the said arrangement given that it is well anticipated in the Ordinance that an applicant therein could well be a government department. Second is that the breach in the present case is curable by way of the judicial review, which is equipped to address all the other complaints of applicant, which are not dependent on any fact findings by the Director[53]. 180.However, given my above conclusion that breach of natural justice has not been established, I do not find it necessary or appropriate to deal with these arguments. 181.Insofar as apparent bias is concerned, the following principles are relevant. 182.First, the Court of Final Appeal has laid down that the question to be asked in a case apparent bias is whether all the relevant circumstances would lead to a fair-minded and informed objective observer to conclude that there is a reasonable apprehension of of bias[54]. The fair-minded and informed observer is assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind it is the appearance that these facts give rise to that matters, not what is in the mind of the person under scrutiny. The observer is neither complacent nor unduly sensitive or suspicious when he examines the facts and will be able to distinguish what is relevant and what is irrelevant, and decide what weight should be given to the facts that are relevant when exercising his judgment[55]. 183.Second, the courts do have regard to the actual segregation of personnel and duties within the subject administrative or government department in applying the principle of apparent bias. If there are clear segregation of responsibilities and personnel in the complaint decision making process, which would be taken to be the background the observer informed of, the court has held that there is no actual or apparent bias in the circumstances of those cases. See: Cheng Chui Ping v The Chief Executive of HKSAR and the USA[56], at paragraphs 26, 86 and 87 per Hartmann J (as he then was); Cheng Chong Gui v Chief Executive of HKSAR[57] at p 433D-H per Yeung J (as he then was); Lee Hong Dispensary Superstore Co Ltd v Pharmacy and Poisons Board[58] at paragraphs 18 and 20 per A Cheung J (as he then was). 184.The following facts in present case should thus be read with the above principles in mind:
185.Applying the above principles to these facts, I am satisfied that the fair-minded and informed observer, having regard to the above facts, would not conclude that there was a reasonable apprehension of bias on the part of the decision maker. 186.Mr Pun finally argues that, even with and notwithstanding the factual segregation of powers and responsibilities, the fact is the “heads” of the segregated departments are the Director’s subordinates. There is thus at least an apprehension of risk that the segregated decision maker may be influenced by a sense loyalty to the Director. As such, the risk of bias is there. 187.The argument in my view is also misplaced. As said above, the Director in the process only acts nominally. She has no actual or active involvement in either of the segregated processes or decisions. There is also nothing to suggest that she somehow has a personal interest in favour of either of the processes or its outcome. She is thus entirely neutral to the process. In the premises, the question of risk of apparent bias arising from the Director’s influence or the division head’s loyalty to her is purely theoretical and simply does not arise. 188.The complaint of apparent bias is therefore also not made out. I reject Ground 6. Ground 7 - Illegality 189.Under this ground, Mr Pun argues that, on a proper construction, the “applicant” under the Ordinance cannot include the Director herself for a number of reasons:
190.As a result, when in the present case the Director acted as the applicant for the approval of the EIA Report and the granting of the EP, those were made outside the scope of the Ordinance, and the 1st and 2nd decisions are thus made illegally. 191.In my view, none of these arguments are made out. 192.It must first notice that the Ordinance does not by any express language exclude the Director as an applicant. Quite to the contrary, the plain words of the Ordinance does not seek to exclude any identified person or party, not least the Director, as an applicant. See ss 3(1) and 5 of the Ordinance. 193.To construe otherwise would involve departing from the natural and plain meaning of the Ordinance in this respect. 194.Thus, fundamental to Mr Pun’s arguments is that if to include the Director as an applicant by way of an ordinary construction, it would necessarily lead to absurdity and breach of natural justice. 195.However, this foundation is simply not made out for the reasons I have set out under Ground 6. In other words, there are procedures and practices that could be adopted to ensure that there would be no breach of natural justice even if the Director is to act nominally as an applicant. 196.As such, the ordinary and plain construction of the Ordinance of the meaning of an applicant to include the Director would not necessarily lead to breach of natural justice or absurdity. The reference to the operation of ss 8 and 77 of the Ordinance also would not assist. The segregation of responsibilities and duties would equally eliminate the alleged absurdity of their operations. 197.Of course if in fact there is a breach of natural justice in a particular case by reason of the Director being the applicant in an EIA process under the Ordinance, the decision so rendered would be subject to the proper scrutiny of judicial review on that basis. But that is not because of the construction of the meaning of applicant in the Ordinance. 198.I therefore also dismiss Ground 7. Ground 8 – Illegality of the 3rd decision 199.This ground is that the TPB’s decision (ie, the 3rd decision) was illegally made as it was based on the “mistaken material facts” that the 1st and 2nd decisions were lawfully made. This ground therefore would only succeed if any of the above grounds made to challenge the 1st and 2nd decisions is successful. 200.Given I have rejected all the above grounds against the 1st and 2nd decisions, this ground must therefore also fail. 201.In light of this conclusion, I do not find it necessary to deal with Mr Mok’s further submissions that, notwithstanding any successful challenge of the 1st or 2nd decisions, the 3rd decision is not subject to any challenge because the alleged “material error of facts” in the present case are not operative to quash to 3rd decision[62]. D. CONCLUSION 202.For the above reasons, all the grounds raised by Mr Leung in support of the judicial review have failed. I would therefore dismiss the application. 203.I further make an order nisi that costs of this application be to the Director and TPB, to be taxed if not agreed, with certificate for two counsel. The applicant’s own costs be taxed in accordance with legal aid taxation with certificate for two counsel. 204.Lastly, I thank counsel for their assistance in this matter.
Mr Valentine Yim, with Mr Hectar Pun, instructed by Lee Chan Cheng, for the applicant Mr Johnny Mok SC leading Ms Eva Sit, instructed by Department of Justice, for the 1st and 2nd respondents [1] See ss 4-8, and 10 of the Ordinance. [2] Under HCAL 28/2012, HCAL 46/2012, HCAL 49/2012 and HCAL 65/2012. [3] (2006) 9 HKCFAR 478. [4] In this regard, see Chu Yee Wah, supra, at paragraphs 80-81, where Tang VP finds force in the submissions (by leading counsel for the Director in that case) to the effect that when one ascertains what is required to be included in the EIA report specifically for a specific item of assessment, one should look at the SB to see if there are any specific provisions governing it, and it is only where the SB is silent that one turns to the TM as the more general instrument. [5] Paragraphs 7b.3.3.23, 7b.4.10, 7b.6.1.2, 7b.6.1.3 and Tables 7b.31, 40-42. See also SB, paragraphs 2.1(vii), 3.5(v), 3.7.5.3 and 3.7.5.5. [6] Paragraph 7b.5.1.4. [7] Paragraphs 7b.6.1.3, 7b.6.2.47, 7b.6.2.61, 7b.6.2.117, 7b.6.3.7, Tables 7b.54, 62-64. [8] Paragraph 7b.6.1.3. [9] paragraph 7b.6.3.3. [10] At paragraphs 7b.8.4.1 – 7b.8.4.8. [11] See for examples ss 7-14 of the MPO which provide for the various matters that need to be satisfied and the objections that can be made by any persons aggrieved by such a proposal before a marine park can be successfully designated. [12] Although in the Amended Form 86, this challenge is premised on there being both inadequate on-site and off-site measures proposed in the EIA Report, I think Mr Yim has fairly focused only on the complaint about off-site measures both in his skeleton and oral submissions. I would regard counsel as not pursuing any challenge of the inadequacy of the proposed on-site measures. However, if I were wrong on this position, I would accept the Mr Mok’s submissions made at paragraph 22(2) and the Appendix of his skeleton that it is clear to me that the EIA Report complies with the requirements in the TM and SB in relation to the proposed provision of on-site measures. Whether these on-site measures can be regarded as good ones or meritorious ones are not under the purview of this court in judicial review, and I do not in any event find them to be Wednesbury unreasonable in light of the materials that have been placed before the court. [13] In particular, after taking into account of all the on-site mitigation measures proposed in the report, which have been summarised helpfully in Mr Mok’s skeleton by way of an Appendix. [14] See paragraph 7b.6.2.6 of the EIA Report. [15] See for examples, ss 9, 19, 20 of the MPO, and the Marine Parks and Marine Reserves Regulation (Cap 476A). [16] See the Affidavit of Mr Tse Chin Wan, at paragraph 16. [17] See s 4(1) of the MPO. [18] See paragraphs 7b.8.4.5-6 of the EIA Report; Tse’s Affidavit (under HCAL 65/2012), paragraph 15.3. [19] Polychlorinated dibenzo-p-dioxins and dibenzofurans. [20] Polychlorinated biphenyls. [21] See Affidvait of Tse Chin Wa, paragraph 26, and Affirmation of Linda Yu, paragraphs 10-12. [22] United States Environmental Protection Agency. [23] See EIA Report, paragraph 15.1.12.1. [24] HHRAP, paragraph 2.3.3. [25] The EIA Report, paragraph 2.3.4.2. [26] The EIA Report, paragraph 2.3.4.1. [27] The EIA Report, paragraphs 2.3.4.1; 2.3.4.3 - 2.3.4.4. [28] The EIA Report, paragraphs 2.3.4.1; 2.3.4.4. [29] The EIA Report, paragraph 2.3.1.2. [30] The EIA Report, paragraph 2.3.1.2. [31] The EIA Report, paragraph 2.3.1.3. [32] The EIA Report, paragraphs 2.3.3.1 - 2.3.3.2; 2.3.3.5. [33] The EIA Report, paragraphs 2.3.3.2 - 2.3.3.3. It is also noted that, as set out at paragraph 2.3.3.6 of the EIA Report, the Advisory Council, an advisory body consisting of academics, green group representatives and professionals appointed by the Chief Executive, endorsed moving grate incineration as the core technology for the IWMF in December 2009. [34] The EIA Report, paragraph 2.3.5.1. [35] See the memo from the Director of Health dated 26 October 2012. [36] Original report published in December 2005, 2nd edition published in June 2008. [37] See the Preface and the Executive Summary as quoted at paragraphs 98 and 99 of the Amended Form 86. [38] See Technical Memorandum for Specifying Air Quality Objectives for Hong Kong. [39] See the Affirmation of Linda Yu, at paragraph 14. [40] See: Clean Air Foundation v HKSAR Government (unrep, HCAL 35/2007, 26 July 2007) at paragraphs 28, 36-41 per Hartmann J (as he then was); Chu Yee Wah, supra, paragraphs 114-118 (CA) and paragraphs 168-173, 185 (CFI). [41] For Grounds 6 and 7, it was Mr Pun who argued in support of the judicial review. [42] See for examples: Lerwick Port Authority v The Scottish Ministers (2008) SLT 74; Blusins Ltd v City of Dundee Licensing Board (2001) SLT 176 at 186C-D. [43] Deacons v White & Case (2003) 6 HKCFAR 322, where the CFA has laid down the test for apparent bias being whether all the relevant circumstances would lead to a fair-minded and informed observer to conclude that there was a real possibility of bias. [44] See the 1st Affidavit of Tse, paragraph 38, and 2nd Affidavit of Tse, paragraphs 17‑23. [45] The Instrument of Authorization has been put in evidence. [46] 1st Affidavit of Tse, paragraph 37. [47] 1st Affidavit of Tse, paragraph 38. [48] 3rd Affidavit of Tse, paragraph 17. [49] 3rd Affidavit of Tse, paragraph 18. [50] 3rd Affidavit of Tse, paragraph 20. [51] 3rd Affidavit of Tse, paragraph 23. [52] See also the unchallenged confirmation at paragraph 38 of the 1st Affidavit of Tse. [53] Mr Mok relies in support the authorities of: Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 at paragraphs 18, 137 and 136 per Ribeiro PJ; Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD (CA) 409 at Headnotes, and paragraph 70 per Kwan JA; Re Otis Elevator Co (HK) Ltd (unrep, CACV 184/1994, 11 April 1995, Litton VP, Nazareth VP, Liu JA) at paragraph 37 per Litton VP. [54] Deacons v White & Case (2003) 6 HKCFAR 322 at paragraphs 20 and 30. [55] Gillies v Secretary of State for Work and Pensions [2006] 1 WLR 781 at paragraphs 17 and 39. [56] Unrep, HCAL 1366/2001, 7 January 2002 (subsequent appeal dismissed CACV 138/2002). [57] [1998] 4 HKC 426. [58] (2007) 12 HKPLR 152. [59] For example, in Cheng Chui Ping v The Chief Executive of HKSAR and the USA; Cheng Chong Gui v Chief Executive of HKSAR, there was no suggestion that the fact that there was internal segregation of powers and duties within the legal department in providing separate relevant advices to the Chief Executive on the question of extradition should not be taken as one which was capable of being known by the observer on the question of apparent bias. [60] Cf: Bushell v Secretary of State for the Environment [1981] AC 75 at 102B per Lord Diplock. [61] The Mersey Docks Trustees v Gibbs (1866) LR 1 HL 93 at 110. [62] See paragraphs 101 and 102 of Mr Mok’s submissions. Please refer to CACV176/2013 for the relevant appeal(s) to the Court of Appeal. | |||||||||||||||||||||||||||||||||||||
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