Chi Hong Ching Yuen Ltd v. Director of Lands

HCAL 107/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 107 OF 2013

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J U D G M E N T

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1.This is an application for leave to commence judicial review.

Background

2.The applicant is a company of Buddhist nuns.  It is the owner of section A of Lot No. 672 in Demarcation District 179, Sha Tin, the New Territories (“the Lot”).  The Lot is held under Tai Po New Grant No 6375 given on 11 October 1933 (“the New Grant”).  There is also a permission subject to conditions given by the government under an Application for Conversion of reference TP 24/130/56 endorsed by the Land Bailiff on 4 January 1957 (“the Application for Conversion”).

3.The applicant received a letter dated 11 April 2003 from the putative respondent, the Director of Lands requiring it to rectify some breaches of the conditions of the New Grant and the Application for Conversion.

4.The letter mentioned three breaches.  The first breach is contrary to general condition no. 15 of General Conditions of Government Notification and paragraph 7(5) of the sample Government lease in Schedule B to GN 570 under which the New Grant was given.  Condition no. 15 provides:

“Without the consent of the District Officer no grave shall be made on, nor shall any human remains be interred in, or deposited on the lot held either in earthenware jars or otherwise.”

Paragraph 7(5) of the sample Government Lease also provides:

“(5) That without the consent of His said Majesty, signified in writing by the Governor of the said Colony or other person duly authorised in that behalf, no grave shall be made on, nor shall any human remains be interred in, or deposited on the said premises, and”

5.The letter stated that the applicant had breached condition no. 15 and paragraph 7(5) in that the applicant had used a structure built on the Lot as a columbarium and niches for storage of cremated human ashes were found in that structure.

6.The next breach mentioned in the letter was the excessive construction of built-over areas.  The total built-over area permitted on the Lot was about 355 sq meters.  However, there was a total built-up area of 730.4 sq meters on the Lot as shown in a coloured plan annexed to the letter.

7.The 3rd breach was the excessive building height.  The Application for Conversion was subject to special condition no. 2(b)(5) of Government Notification No. 364 of 1934 as amended by Government Notification No. 50 of 1940 which limited the height of buildings to 25 ft. There are however buildings on the Lot the height of which exceeded 25 ft as shown in the coloured plan annexed to the letter.

8.The letter required the applicant to rectify the breaches by 9 May 2013 failing which the government would consider revoking the Application for Conversion and commence lease enforcement action.

Extension of time

9.The application for leave was filed on 16 July 2013.  It stated that the letter dated 11 April was received by it on 16 April.  Hence, the application was made within the three months limited by O 53 r 4(1) of the Rules of the High Court.

10.Just in case if the application was late by a few days if the three month period should have counted from 11 April, the applicant also seeks extension of time under O 53 r 4(1) of RHC. 

11.The explanation for the possible delay is that the applicant, upon receipt of the letter dated 11 April, did not seek legal advice immediately.  It instead replied to the putative respondent on 30 April seeking indulgence for the breaches.  However, the putative respondent replied by a further letter of 19 June and maintained his stance.

12.The applicant then approached solicitors for assistance on 4 July.  This application was then filed on 16 July.  It was further amended slightly on 11 October 2013.

13.I think the three-month period should have started to run from 16 April when the applicant received the letter of 11 April.  Before the receipt of the letter, the applicant did not know that the government had decided that it should rectify the breaches.  Hence, there is no need for any extension of time for this application to be made.

The grounds of the application

14.The grounds of this application as amended are:

“1. In making the … decisions, the (putative respondent) failed to take into account the history of the dealings between the Applicant and the Land Offices since 1923 or thereabout to present, during which the buildings on the Applicant’s premises were built. Likewise, the (putative respondent) had failed to take into account the true charitable nature of the Applicant’s operation and its religious oriented activities, in that and in a nutshell, the Applicant is a non-profit seeking charitable organization, the Lot was operated by the Applicant as the religious sanctuary only opened for the members of the Buddhists faith. It has also been home to Buddhist monks who live in accordance with the practices of Buddhism. The Applicant maintains the columbarium in (sic) concern only for deceased Buddhist monks and its members. The columbarium is by no means a commercial enterprise nor being operated as such.

2. The Applicant has operated the Lot for over sixty years and part of it for a much longer period.  The columbarium has also existed for many years already.  The Applicant has received no complaint nor any interference with the relevant Government Authorities.”

15.The applicant has also filed an affirmation by its director, Sik Shui Hung, a Buddhist nun (“Master Shui Hung”) in support of the application.  Master Shui Hung referred to a plan annexed to a licence for erection of building given by the government pursuant to the Application for Conversion and dated 18 January 1957.  She said that the columbarium was built pursuant to that licence.  She further deposed to the belief that her master teacher and fellow nuns who handled the construction of the columbarium must have attended to all government applications and obtained all approvals properly.  She further surmised that the District Officer, being the predecessor of the putative respondent, or his assigned representative must have inspected the columbarium and had actual knowledge of its use at the time of the Application for Conversion.  She further conjectured that the Application for Conversion was made for the purpose of constructing the columbarium and that the permission was so granted and the columbarium has been there and used as such for over 50 years.  She also said that at the time of the New Grant on 11 October 1933, there was already a columbarium in use at the present location.  She also said that there was no notice of breach of condition of grant for 54 years until 11 April 2013.

16.In relation to the breaches on built-over areas and building height, Master Shui Hung referred to the land search records which stated that the lease term, date of commencement and rent could not be ascertained from the New Grant.  She implied that the counterpart of the New Grant as kept by the government had been lost.

17.Master Shui Hung further said that the buildings in question were built pursuant to a building licence dated 7 January 1941 and the buildings were completed before the Japanese Occupation during the 2nd World War which commenced in December 1941.  Since the exact contents of the New Grant were not available, it is not clear whether the District Officer had consented to the breaches or had actual or implied knowledge of the use of the Lot.

18.Master Shui Hung thus submitted that there was no breach of the New Grant or that the District Officer had consented to the breaches.  She therefore seeks leave to commence judicial review against the decisions in the letter dated 11 April 2013.

The opposition on facts

19.The putative respondent, at the direction of the court, filed an initial response to the application.  The putative respondent opposes the application.  Though the New Grant or its counterpart has not been produced, the putative respondent has produced various gazette notice and records showing that the Lot was sold under the New Grant by public auction held on 11 October 1933 and the New Grant was subject to the said General Conditions and sample Government Lease.

20.The putative respondent also pointed out that despite the non-commercial use of the columbarium, its only purpose was to store the cremated ashes of its members and followers and that it had existed for years without complaint, it was still a breach of the conditions above-mentioned. Furthermore, the belief by Master Shui Hung that all necessary applications had been made and approval obtained by her predecessors was a mere belief and without basis.  The government has received no such application and the applicant produced none.

21.In relation to the construction of the columbarium, the putative respondent also denied knowledge that the structure was constructed to be used as a columbarium.  He referred to a plan submitted by the applicant’s architect to the then Public Works Department and dated 10 August 1956.  The plan stated that the structure to be built was a store room. The Occupation Permit issued to the applicant also stated that the structure was permitted to be used for storage purposes only.

22.Regarding built-over areas, the putative respondent referred to the 1941 licence which allowed 0.08 acre of building area.  He also referred to the Application for Conversion which limited the new built-over area to not exceed 342 sq ft.  The total of built-up area permitted by the licence and application is thus about 355 sq meters.  There was nothing to suggest that the applicant can construct build-up area in excess of that.

23.In the light of the limitation on built-up area in the licence and application, the putative respondent submitted that the applicant could not rely on the absence of the exact contents of the New Grant and to have built-up area in excess of 355 sq meters on the Lot.  There is also no evidence that the District Officer indeed had knowledge of this breach.

24.Regarding building height, there is again no evidence to suggest that the applicant could maintain a building height in excess of 25 feet.

The opposition on law

25.Apart from dealing with the facts of the case, the putative respondent also submitted on the legal aspect of the application. The putative respondent submitted that the decision in the letter of 11 April 2013 was a decision by the putative respondent as land agent for the government being the land owner.  It was to enforce the land owner’s contractual rights under the New Grant and the conditions under which the New Grant was made and some additional licence conditions as against the applicant, the government lessee.  Cases of this nature should be resolved by private law proceedings and not by judicial review.  Even if the dispute can be resolved by judicial review, the court should exercise the discretion against it as the case involves substantial disputes of fact and is not appropriate for resolution by judicial review.

Decision

26.I agree with these submissions on the proper legal procedure for resolution of this dispute.  I hold that the dispute between the applicant and the putative respondent over the decision in the letter dated 11 April 2013 should be resolved under private law proceedings and not by way of judicial review.  In any event, judicial review is not the appropriate procedure as there are substantial disputes of fact between the parties.

27.I therefore dismiss the application for leave to commence judicial review.  I make no order as to costs.

Mr Neal Clough, instructed by Henry H C Wong & Co, for the applicant 

Mr Samuel Lee, SGC, of Department of Justice, for the putative respondent