Ma Wan Farming Ltd v. Chief Executive in Council and Another

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 182
(Civil)

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Coram: Hon Nazareth, V.-P., Liu and Mayo, JJ.A. in Court

Dates of Hearing: 26 & 27 February 1998

Date of Handing Down of Judgment: 26 March 1998

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J U D G M E N T

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Liu, J.A.:

1. The appellant, Ma Wan Farming Limited (Farming), took the Chief Executive in Council (CIC) and the Secretary for Transport (Secretary) to Keith, J. on an application for judicial review. Farming felt aggrieved by the approval of CIC of certain road works without modification despite Farming's objections. Keith, J. refused the application and from the decision of the judge, Farming now appeals.

2. Farming seeks to rely on only two of the Grounds of Appeal. First, it is complained that Keith, J. was wrong to regard the decision in Kwan Kong Company Limited v. Town Planning Board [1996] 2 HKLR 363 as binding upon him. Secondly, the judge was further wrong in refusing to apply full human rights safeguards under Article 10 of the Hong Kong Bill of Rights to the consideration of CIC of, inter alia, Farming's objections to the road works proposed by the Secretary. For the two grounds in this appeal, reference to material facts can be brief.

3. Farming was the registered owner of certain parcels of land on Ma Wan Island which lay between Tsing Yi and Lantau. Sun Hung Kai planned for a development of part of Ma Wan into a residential estate, a new village and a park. Sun Hung Kai failed in its private negotiation with Farming for the acquisition of some of the parcels it owned. For public good Government was drawn to the development scheme and became a willing participant in it. In the course of the negotiation between Farming and Sun Hung Kai, the developer disclosed its intention to invite Government to resume part of Farming's lands required for the proposed Ma Wan development in the event of the parties failing to reach agreement. It was understood that compensation payable to Farming on resumption would likely be less than the offer made by Sun Hung Kai. Private negotiation collapsed. In early 1995, the Secretary announced his proposals for road works on Ma Wan Island, which would have the effect of dividing Farming's holdings into quarters. In the proposed scheme, part of Farming's lands was expected to be resumed for an emergency access road. Farming objected to the proposals. Having considered the proposals and Farming's objections, CIC authorised the road works without modification. All this was proceeded with under the provisions of the Roads (Works, Use and Compensation) Ordinance, Cap. 370 (the Ordinance). Farming challenged the decision of CIC by applying to Keith, J. for judicial view.

4. The statutory scheme under the Ordinance is for, as its long title explains, the making of proposals as to road works, the raising of objections to the proposals, the obtaining of authority and power for carrying out the proposed works with or without modifications and the claiming of compensation. The long title reads: "To provide for the publication of proposals as to works in relation to roads, objections to the proposals, authority to carry out the works and for the use of roads, powers in relation to the works on and the use of roads, compensation and connected matters". Road works planning is largely dictated by general policy, and wide discretion is left by the legislature to CIC.

5. The Secretary may take upon himself to execute minor works as defined in s. 4 of the Ordinance. For the execution of any other works, the Secretary would have to prepare a plan and a scheme for proposed road works. See s. 5. His plan and scheme would have to be deposited in the Land Registry and made accessible to inspection by the public. See s. 8. These proposed road works may be objected to. S. 10. The plan and scheme together with objections, if lodged and not withdrawn, shall be considered by CIC under s. 11(2). CIC may refer the plan, scheme and the objections to the Town Planning Board, or CIC may consider the plan, scheme and objections himself; in which case, CIC may decline to authorise the proposed works or may authorise them with or without any modifications and conditions. In this case, CIC approved the proposed road works without any modification.

6. When land is required for the proposed road works as approved by CIC, the Chief Executive (not, be it noted, CIC) may (not, be it observed, shall) order resumption. S. 13. If land should be ordered to be resumed, a Notice of Resumption shall state, inter alia, that any person entitled to compensation may serve a written claim on the Secretary. S. 14(2)(f). The procedure for claiming resumption compensation is under a different Part, Part III of the Ordinance. The Secretary is obliged to refer any disputed claim for compensation to the Lands Tribunal. S. 29(6)(b). Approval of the proposed road works and the order for resumption of the land required therefor are given or made under different sections of the Ordinance, namely, s. 11(2) and s. 13(1). In sum, approval of the proposed road works is made by CIC and resumption, if desired, may be ordered by the Chief Executive. Claims for compensation are attended to by the Secretary and disputed claims are resolved in the Lands Tribunal.

7. When Farming appeared before Keith, J. on its application for judicial review, it produced a different proposal for road works, which would divide its lands into halves instead of quarters. Farming would have been content if the Secretary had adopted this alternative plan, and this appeal would probably not have been prosecuted. In general, road works would enhance property value, and without doubt Farming would welcome those most or more beneficial to its Ma Wan holdings. It is inconceivable that Farming would rather prefer, as counsel maintained, to have no road net-work at all, either for or close to its lots. It was complained before the judge that Farming had no sufficient inspection of the proposed scheme of the Secretary for lodging a meaningful objection. The judge was unimpressed by that submission. Farming also complained before the judge that it was not provided with copies of the documents considered by the Executive Council and that CIC's approval was not given at a fair or public hearing. Copy of the briefing document with annexes for the Executive Council was placed before the judge. The briefing document with annexes constituted the materials on the basis of which the Executive Council assisted the Chief Executive in reaching his decision in Council under section 11(2) of the Ordinance. Leading counsel for Farming before us, Mr Lee, who also appeared before Keith, J. did not seek to make capital of the briefing document and its annexes at the hearing for judicial review. The judge was unable to find anything in the briefing document which Farming could not have previously commented on but would have wished to address in its application to him. This is what the judge found:

"The principal facts of the objection had not been on transport grounds. Its objection had been on the basis that the proposals for resuming the company's land had not been bona fide: the proposals had been made 'to enhance the bargaining position of the developer'. There were no transport considerations to address ..... There was nothing in the materials placed before the [Chief Executive] in Council on which the company could usefully have commented but which it could not have commented on before."

8. There is no appeal from the judge's finding. In essence, Farming had throughout been able to make full submissions. In its judicial review application, it was open to Farming to address all the arguments to the judge on any matters arising out of or from the full submissions it had or could have made in its objections. Farming's objections had been placed before CIC for the purpose of s. 11(2) of the Ordinance. There was nothing pertinent to its objections that Farming had been restrained or prevented from canvassing.

9. CIC merely approved the proposed road works. The decision, if any, to resume would have to be taken by the Chief Executive not by the Chief Executive in Council, CIC. Claims for compensation would be entertained by the Secretary, ultimately in the Lands Tribunal. Even if it could be said that the lands of Farming were blighted when CIC approved the proposed road works under section 11(2) of the Ordinance, it would seem to be arguable that the approval did not relate to the scope and manner of exercise of Farming's right. See Allan Jacobsson v. Sweden, (1989) 12 EHRR 56 at p. 69 para. 67. Further, what must not be lost sight of is the real interest of Farming and the nature of its complaints. Farming had asked to be a partner in the development scheme with Sun Hung Kai. Later, it negotiated for the sale of parcels of its land to Sun Hung Kai. Farming was naturally keen to procure the best return for its Ma Wan holdings. It charged CIC's approval of the proposed road works with bad faith. It was alleged that the object of the exercise was "to enhance the bargaining position of the developer". The nature of Farming's complaints as that of its real interest was decidedly pecuniary. The best procurable value for its Ma Wan lots was Farming's only concern.

10. Turning to the first ground of appeal, namely, whether the judge was wrong in regarding himself bound by Kwan Kong Company Ltd. v. Town Planning Board, supra. In that case, the sole relief sought by the applicant was held by Litton, V-P at page 373A-B to be wholly inappropriate and that "should, in principle, be the end of the appeal". The Vice-President also took the view that the hearing before the judge was "largely an academic exercise". See page 369 J. At page 379 F-G, as a member of that court I said that Article 10 of the Hong Kong Bill of Rights was sought to be engaged only on the basis of alleged "systemic bias" which had been waived. At page 300 I, I said further that as the submitted draft plan under complaint had been superseded by the approved plan, it was no longer a live issue and that the court should not be invited to consider a purely hypothetical question. At page 378 C-D, Godfrey, JA discarded the Article 10 argument for "other, wider reasons". It is clear that the Court of Appeal did not adjudicate upon Article 10. There was no holding to bind Keith, J. sitting as a Court of First Instance.

11. I come then to consider the substantive ground of appeal, namely, whether Article 10 of the Hong Kong Bill of Rights was activated. Leading counsel for Farming, Mr Lee leaned heavily on pages 174-196 of the "Law of the European Convention on Human Right" by Professor Harris, M O'Boyle and C Warbrick (Harris), published in 1995. These pages are part of Chapter 6, "Article 6: The right to a fair trial". Mr Dykes, for the respondents, was not critical of any of the principles expounded or collated by the authors in that Chapter. For the basic concepts of Article 6 of the European Convention on Human Rights which is an equivalent of our Article 10, I shall constantly seek verification from it. Our Article 10 reads:

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

Article 6(1) reads:

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." (Emphasis supplied).

12. The differences between our Article 10 and Article 6 lie, first of all, in the absence of the words "civil" and "within a reasonable time" from our Article 10. Our Article 10 introduces "competent" to "an independent and impartial tribunal established by law" and "in a suit at law" after the words "rights and obligation". The word "judgment" in Article 6 is recast in our Article 10 as "judgment rendered in a criminal case or in a suit at law". Both Articles dwell upon the impact on "rights and obligations", and it would seem that the insertion of "a suit at law" to our Article 10 would add little to "tribunal established by law", "judgment" and "trial" contained therein. After all, in Fok Lai Ying v. Governor in Council & Others, (1997) 7 HKPLR 329, at p.339 F Lord Cooke of Thorndon observed that differences of this nature "should not be heavily stressed". It is quite unnecessary for our present purposes to explore any subtle divergence in the application of these two Articles to "rights and obligations" which, as will be explained later, overrides all references to the attributes of a court of law.

13. Of the many aspects of Article 10, the more conspicuous are "dispute", "determination", "rights and obligations in a suit at law", "a fair and public hearing", "a competent, independent and impartial tribunal established by law", "a trial", "strictly necessary in the opinion of the court" and "judgment rendered ...... in a suit at law". The link to a court of law is more apparent than real. In this case, the beacon-light for Article 10 is "rights and obligations".

14. In practice, Article 6, as should be our Article 10, has been reluctantly invoked by the Strasbourg authorities to question the merits of decisions by national courts or executives. To ensure a fair trial as the end result has consistently been the aim of the Strasbourg authorities. Their approach is reflected in Harris:

"The application of Article 6 has presented the Strasbourg authorities with various problems. A delicate question is the closeness with which they should monitor the functioning of national courts. In practice, the Strasbourg authorities have meticulously and properly followed the 'quatrième instance' doctrine, not questioning the merits of decisions on the facts taken at the national level. They also allow states a wide margin of appreciation as to the manner of their operation, ...... with national courts being allowed to follow whatever particular rules they choose, so long as the end result can be seen to be a fair trial." (Emphasis supplied). P. 164, Harris.

The other problematic area for Article 6, hence for our Article 10, lies in the extent to which the Strasbourg authorities would interfere with administrative justice of Convention states by engaging Article 6. Harris explores this difficulty at p. 165:

"Another problem has resulted from the application of Article 6 to administrative justice. If the Commission and the Court have commendably acted to fill a gap by reading Article 6 as requiring that administrative decisions that determine an individual's right, for example, to practise as a doctor or to use his land, are subject to Article 6, they have yet to establish a coherent jurisprudence spelling out the nature of the resulting obligations for [Convention] states." (Emphasis supplied).

15. It would seem, therefore, that Article 10 is not calculated to monitor executive discretion provided a fair hearing may be achieved in the end and that firm principle is wanting for deciding what Article 10 human rights safeguards are sufficient in any given scenario.

16. In considering whether Article 10 is engaged, the focal point is the character of the right at issue in a dispute. The status of the parties, the nature of the legislation, the identity of the authority by which the right is to be decided can have but only little consequence. In particular, for the term "suit at law" leading counsel for Farming directed our attention to Y L v. Canada, Communication No. 112/1981, Selected Decisions, Vol. 2, 28. In that case, complaint was lodged under, inter alia, Article 14(1) of the International Covenant on Civil and Political Rights, which is akin to our Article 10. On "a suit of law" in Article 14(1) of the Convention, the Human Rights Committee observed in paragraph 9.2 at page 30:

"........the concept of a "suit at law" or its equivalent in the other language texts is based on the nature of the right in question rather than on the status of one of the parties (governmental, parastatal or autonomous statutory entities), or else on the particular forum in which individual legal systems may provide that the right in question is to be adjudicated upon, especially in common law systems where there is no inherent difference between public law and private law, and where the courts normally exercise control over the proceedings either at first instance or on appeal specifically provided by statute or else by way of judicial review. In this regard, each communication must be examined in the light of its particular features." (Emphasis supplied).

17. The guideline that has emerged from the case law is identified by Harris at p. 176:

" 'only the character of the right at issue is relevant'. The 'character of legislation which governs how the matter is to be determined (civil, commercial, administrative law, etc) and that of the authority which is invested with jurisdiction in the matter (ordinary court, administrative body, etc) are therefore of little consequence'."

18. Despite the extensive references made in terms of curial intervention in our Article 10, it is predominantly the character of the right at issue that is to bring the proceedings within the purview of the Article.

19. Given a decision which potentially engages Article 10, that is to say, so long as the character of the right decided or affected is a civil right, it matters not whether it is a decision of a court, a quasi-judicial tribunal or a purely administrative body. If this first principle requires any support, the following passages are worth noting.

"In particular, it has provided the basis upon which cases involving decisions by administrative tribunals or the executive regulating private rights in the public interest are brought within the reach of Article 6." (Emphasis supplied). Harris, at p. 190.

"19. Ringeisen v. Austria A 13 para 94 (1971), quoted in the K(nig case A 27 para 90 (1978). A formula used in several recent cases is: 'Article 6(1) applies irrespective of the parties' status, be it public or private, and of the nature of the legislation which governs the manner in which the dispute is to be determined; it is sufficient that the outcome of the proceedings should be decisive for private law rights and obligations'. H v. France A 162 para 47 (1989)." Harris, at p. 176, note 19.

20. But of course, Article 6 or our Article 10 does not embrace all the determinations of every conceivable civil right or obligation. That should be plain enough. At p. 174, Harris confirms it in these terms:

".......the Convention does not guarantee an individual a fair trial in the determination of all of the rights and obligations that he may arguably claim in national law." (Emphasis supplied).

21. The term "rights and obligations" cannot be exhaustively defined. It is almost impossible to do so. None has been attempted by the Strasbourg authorities. The courts prefer "an inductive approach", that is to say, each case is to be ruled "on the particular facts of cases as they have arisen." See Harris, p. 175.

22. Thus, whilst the meaning of "rights and obligations" is best to be ascertained in what is called an inductive approach, the engagement of Article 10 is primarily dependent on the character of the right at issue in a dispute resolved by whatever authority, a court or a tribunal or an executive. If such a right is directly affected by the determination, in considering what human rights safeguards need to be provided by a court in subsequent judicial review for meeting the requirements laid down in Article 10, regard must also be had to the nature of the complaints and the opportunity of making full submissions.

23. The right to property is an Article 6 civil right or Article 10 right. The gradual extension in Strasbourg of the meaning of "civil rights and obligations" in Article 6 has given rise to difficulties, one of which is that "the Court's attempt to explain its decisions in terms of public and private law appears artificial and unconvincing." See p. 184, Harris. In Hong Kong's common law jurisdiction where no practical difference is drawn between public law and private law, any tendency to enlarge the meaning of "rights and obligations" would not bring about the same repercussion, but the reminder by the authors of Harris is worth noting in deciding what an Article 10 civil right is. See Y.L. v. Canada, supra. I need hardly say that the exclusivity rule in O' Reilly v. Mackman, [1983] 2 AC 237 at p. 285 for determining whether a case should proceed by judicial review or by writ has no direct bearing on the present discussion.

24. What must not be overlooked is that Article 10 would not leap into operation unless the determination of a dispute is directly decisive for some civil rights, as in expropriation or confiscation, planning law with respect to granting a permit to build, permission to live in one's own home. These are examples of decisions which would have a direct bearing upon civil rights. The right to property is clearly a right that may be so affected. This is how the authors of Harris put it:

"The right to property is one such right. As a result, state action that is directly decisive for property rights is determinative of civil rights and hence subject to the right to a fair trial in Article 6. Thus decisions concerning ......... the expropriation or confiscation of land, ....... planning laws [for granting a permit to build a house] and the refusal of permission for a person to live in his home ......". P. 177.

"The right to property and to engage in a commercial activity share a common pecuniary character. Consistently with such a link, the Court's jurisprudence also recognises as a civil right the right to compensation for pecuniary loss resulting from illegal state acts." P. 179.

25. In the Ordinance, a claim for compensation would only arise if and when the Chief Executive (not, be it noted, CIC) sees fit to order resumption. Even after the failed negotiation for the Ma Wan land acquisition between Sun Hung Kai and Farming, the possibility of Government reopening negotiation with Farming or acquiring lands by other means than resumption cannot be ruled out, particularly when the market has now different bearings. Sun Hung Kai has even shelved its Ma Wan scheme in the economic downturn. The nature of Farming's complaints is pecuniary, and it is strongly arguable that CIC's approval of road works did not relate to the scope and the manner of exercise of Farming's right which converged on a claim of a monetary nature and that before the Chief Executive (not, be it noted, CIC) decided to order resumption, CIC's prior approval was a mere preparatory step which could not be directly decisive for Farming's monetary interest. See Boden v. Sweden, (1987) 10 EHRR 367 at p. 374: ".......these two decisions were only preparatory steps which, in themselves, did not at that stage interfere with the applicant's civil rights"; see also Sporrong and Lonnroth v. Sweden, (1983) 5 EHRR 35, p. 57 para. 85. In this sense, the approval of the proposed road works by CIC under s. 11(2) of the Ordinance would appear to have only a remote or tenuous connection with Farming's right to a monetary claim and would not in consequence affect Farming's civil right in terms of Article 10.

26. Of course, it would suffice for the very substance of a civil right to be affected by a determination. It is always a matter of degree having regard to the nature of the complaints and the real interest involved. One looks at the consequence or outcome rather than the determination itself or the tribunal by which it was made. See Harris, pp. 189, 190 and 186 respectively.

"In addition, it was held in Ringeisen v. Austria that Article 6 extends to proceedings which do not have the determination of 'civil rights and obligations' as their purpose but which none the less are decisive for them."

"..... the impact of Ringeisen case in extending Article 6 to cases in which the 'determination' of civil rights and obligations is a consequence, but not the purpose, of the proceedings has been considerable. In particular, it has provided the basis upon which cases involving decisions by administrative tribunals or the executive regulating private rights in the public interest are brought within the reach of Article 6." (Emphasis supplied).

"For Article 6 to apply there must be a 'dispute' at the national level .......between the applicant and the state the outcome of which is determinative of the applicant's civil rights and obligation". (Emphasis supplied).

27. Also, at p. 70 of Boden v. Sweden, supra it was observed:

"It is enough that the outcome of the proceedings should be decisive for private rights and obligations".

28. Focusing on the character of the right at issue and the nature of the complaints made, it is easy to understand why a purely policy decision may not be immune from the sanctions of Article 10. See Boden v. Sweden, supra pp. 373-4 paras. 31 and 32.

29. But for the absence of arguments addressed to us, I would be inclined to hold that the approval of the proposed road works by CIC was preparatory or otherwise too remote or tenuous to affect or inflict any determinative consequence on Farming's claim, being one of a pecuniary nature. However, I would be content to proceed on the assumption that the approval of CIC would have the consequence of affecting directly Farming's civil right, treating it strictly as a right to property.

30. In order to strike down CIC's approval given in the "dispute" (assuming there was one sufficient to invoke Article 10) between Farming and CIC, either CIC did not meet the requirements of Article 10 or CIC's decision would not be subject to subsequent control by a judicial body that had full jurisdiction in terms of the human rights guarantees of Article 10. Article 10 does not demand that the procedure which determines civil rights should meet its requirements at all stages. It is enough to receive a fair trial at any one stage; "......the Convention calls at least for one of the following systems: either the jurisdictional organs themselves comply with the requirements of Article 6.1, or they do not so comply but are subject to subsequent control by a judicial body that has full jurisdiction and does provide the guarantees of Article 6.1." See Albert and Le Compte v. Belgium, (1993) ECHR Series A no. 58 p. 16, para. 29. Again accepting for the purposes of this appeal that CIC did not fully satisfy Article 10 human rights requirements, the question for our determination is in what proper context of subsequent control an executive decision, such as that of CIC in this case with a high policy content, should be considered. An answer seems to be provided by Harris at p. 194. To begin with, for administrative decisions with high policy content, the Human Right Courts are prepared to accept that the final decision on the merits should rest with the executive. The authors of Harris support this stance.

"Article 6 requires, ...... that the state provide a right to challenge the decision before a tribunal that offers the guarantees in Article 6(1). The question which then arises is whether the tribunal must have full appellate jurisdiction on the law and the facts of the case or whether it is sufficient that it only has a power of judicial review by which it may decide on the legality of the administrative act. Such pronouncements as the Court has made suggest that the tribunal must have full appellate jurisdiction, at least in cases that do not involve matters of general policy." (Emphasis supplied). P. 192.

"The Zumtobel case is of importance in another respect. A problem with the application of Article 6 to administrative decision-making is that in some areas there are policy considerations that suggest that the final decision on the merits should rest with the executive, rather than a court, despite the impact upon an individual's civil rights and obligation that the decision may have. Decisions concerning the expropriation of land for a road or for public housing are obvious cases where this can be argued. Whereas the Court's jurisprudence concerning decisions on such matters as the disciplining of doctors, access to children and the dismissal of employees require a right of appeal to a tribunal with full jurisdiction, it is noticeable that in Zumtobel case, concerning expropriation, the court stated that Article 6 was complied with, regard being had, inter alia, 'to the respect which must be accorded to decisions taken by administrative authorities on grounds of expedience'. This statement may indicate willingness to accept some limit to the requirement of full jurisdiction in cases in which policy considerations applied". (Emphasis supplied). P. 194.

31. See also Zumtobel v. Austria, (1993) ECHR Series A no. 268-A4, p. 14 para. 32:

"Regard being had to the respect which must be accorded to the decisions taken by the administrative authorities on grounds of expedience and to the nature of the complaints made". (Emphasis supplied).

At p. 26 of Zumtobel, supra, in his concurring opinion, Sir Basil Hall said:

"I do not think that Article 6.1 requires that a court shall be able to substitute its judgment for that of the administrative authorities when these authorities have made a policy of a general kind........the applicants are in reality challenging the basic decision to construct a road. That to my mind falls outside the ambit of Article 6.1". (Emphasis supplied).

32. In fact, no administrative decision on grounds of expedience or high policy content was challenged, as Mr Lee suggested, in Sporrong and Lonnroth v Sweden, supra. This is borne out in note 5 at p. 194, Harris:

"A268-A para 32 (1993). The question did not arise on the facts in Sporrong and Lonnroth v Sweden A 52 (1982). In that case, there was a breach of Article 6 in the absence of judicial review to challenge the time limits for the expropriation permits, which is what the applicants wanted; they did not seek to challenge the decision to build the roads for which the expropriation orders were made."

33. Mr Lee also relied on other decisions, none of which would seem to be relevant. Boden v. Sweden, supra at para 31 at p. 373 and para 32 at p. 374 are passages referable to "dispute". Kaplan v. UK, (1980) 4 EHRR 64, at p. 88, para 154; James v. UK, (1986) 8 EHRR 123 at p. 158; and IKSCON v. UK, application number (1994) 20490/92, (Eurcom) Decisions and Report 76A at pp. 110-111, do not relate to subsequent judicial control over executive decisions needed to satisfy the human rights requirements of Article 10. These cases are understandably not mentioned in the passage appearing at p. 194 of Harris.

34. It is only too true that a pure policy decision is not always spared from the human rights requirements of Article 10. See Boden and Allan Jacobsson, supra. Much would depend on, inter alia, the nature of the complaints made. See Zumtobel, supra. The making of Farming's complaints was driven by its desire to procure the best price for its Ma Wan lots. CIC's deliberation was imbued with policy considerations which were far removed from fair property value. Farming's outburst of mala fides directed at CIC could not be really serious. It was not repeated before us. For the nature of its complaints, Farming's legitimate challenge to CIC's approval must be limited. As to CIC's approval, the question to be asked is whether in the known circumstances the requirements of Article 10 would be sufficiently met in the supervisory proceedings taken later by Farming for judicial review before Keith, J or in effect whether Article 10 was engaged.

35. The approval of the road works by CIC was amenable to judicial review. It was an executive decision taken on grounds of expedience, and it would seem that full human rights safeguards would not be required, particularly given the nature of the complaints made. The subsequent application for judicial review before Keith, J. did not provide a full challenge on merits or to the exercise of discretion. Would that be sufficient to meet the requirements laid down in Article 10 in this case?

36. Article 10 is not basically devised for questioning merits. The legislature vests in CIC an exclusive executive power to approve road works in terms of expedience. All other considerations are secondary, and by its very nature the issue of fair value has to be deferred to a later phase after resumption. A decision to construct a road, so held Sir Basil Hall in Zumtobel supra, is a matter of policy of a general kind falling outside the ambit of Article 10. Apart from grounds of expedience and the nature of Farming's complaints, the later judicial review proceedings enabled Farming to attack the CIC's decision-making process and fully re-ventilate Farming's case. Since Farming was in a position to make full submissions on its complaints, the human rights safeguarding requirements of Article 10 should be regarded as met. It is of interest to note how the authors in Harris deal with this aspect.

"Crucial to the Oerlermans decision was that the applicant was able to have decided by the courts all of the relevant points of law and fact that he wanted to raise, especially a claim that an appeal to the Crown did not offer guarantees of a fair procedure. That this is all Article 6 requires in a particular case was spelt out more fully in Zumtobel v. Austria in which it held that, when assessing whether the right of access to a court with 'full jurisdiction' is complied with, regard must be had to the 'nature of the complaints' made by the applicant. In that case, the applicants' right of appeal to the Austrian Administrative Court against an order made by a government office for the expropriation of his land in order to build a road complied with Article 6 because the Court was able to consider 'on their merits' all the submissions that the applicant had earlier made to the office. That being so, it did not matter in that case that the Court's jurisdiction was limited to the question of the lawfulness of the administrative action and did not extend to full jurisdiction on all questions of law and fact." P. 193.

"The Zumtobel case was interpreted in this sense in IKSCON v. UK. In that case, a local authority served an enforcement notice on the applicant society for using its land in breach of the planning laws. On appeal, the Secretary of State confirmed the enforcement notice, following an inspector's inquiry and report. The only judicial remedy then available to the applicant in respect of the resulting interference with their property rights was recourse to the English High Court 'on a point of law'; the High Court did not have a full right of appeal on the law and the facts. The Commission held that this limitation on the High Court's jurisdiction did not infringe Article 6. The applicant society had appealed to the High Court and had been able to put and have considered by the Court all the arguments that it wished to make." Pp. 194-195.

37. In this case, the approval of CIC given under section 11(2) of the Ordinance was decidedly an executive decision of high policy content. It was made by the Chief Executive himself in Council to put in place a system of Hong Kong's road works. It was the implementation of a policy of a general kind. Even if the outcome of the approval of CIC, construed liberally, can be claimed to be determinative of Farming's right of a pecuniary nature without an order for resumption, the approval of CIC would not necessarily be subject to what is described as "the requirements of full jurisdiction" in the subsequent judicial review to satisfy the guarantees laid down in Article 10. This is because the approval of CIC was an administrative decision made on grounds of expedience to implement a general policy and Farming's complaints were pecuniary and in truth narrow in scope. What is more, on the findings of Keith, J. Farming had a full opportunity to re-ventilate all the relevant submissions pertaining to its complaints about and objections to the road scheme. Clearly, in this case, the limit to the requirement of "full jurisdiction" in the application for judicial review to Keith, J. would not infringe Article 10 and the approval given by CIC under section 11(2) of the Ordinance could not be objectionable.

38. For all these reasons, Article 10 of the Hong Kong Bill of Rights was not engaged. I would dismiss the appeal with an order nisi for costs against the appellant.

Mayo, J.A.:

39. I agree. There is nothing that I can usefully add.

Nazareth, V.-P.:

40. I also agree with Liu, J.A.

41. The appellant's real concern in these proceedings is pecuniary. However, it has chosen to meet that concern by seeking the quashing of the decision in 1996 of the Governor-in-Council approving the Ma Wan road works in question. It has done so notwithstanding that its pecuniary claims would receive the equivalent of a "full jurisdiction" hearing in the context of the resumption of land concerned. However that may be, what is significant is that this appears to be the first serious challenge in Hong Kong to an essentially administrative and executive decision of a policy nature upon the basis that it breached Article 10 of the Hong Kong Bill of Rights, i.e. because it was not reached in proceedings akin to ordinary court proceedings i.e. with a "fair and public hearing by a competent, independent and impartial tribunal established by law". The importance and implications of what is at stake may be thought to be of some moment.

42. That the safeguards ordinarily provided in court proceedings should be a basic right only in the determination of private rights in court proceedings seems on its face absurd; all the more so given the huge scale on which encroachment upon private rights and obligations are increasingly determined by administrative and executive decisions.

43. Yet there appears to be a dearth of authority from the courts upon that part of Article 10 and the comparable provisions in point here. Almost all that has been drawn to our attention emanates from the European Court and the European Commission on Human Rights. We have found it of much relevance and assistance particularly in the way it has been collated and analysed by Professor Harris and his co-authors, to whom we acknowledge our indebtedness.

44. The appeal is dismissed. There will be an order nisi that the respondents are to have their costs of the appeal.

Representation:

Mr Martin Lee S.C. & Mr Johannes Chan inst'd by Messrs. Sit, Fung, Kwong & Shum for Appellant.

Mr Philip Dykes S.C. inst'd by the Department of Justice for Respondents.