FORTUNE CHANCE LTD AND ANOTHER v. THE APPEAL BOARD NOMINATED UNDER SECTION 27 OF THE URBAN RENEWAL AUTHORITY ORDINANCE CAP. 563

HCAL 1295/2024

[2025] HKCFI 1874

IN THE HIGH COURT OF THEHONG KONG SPECIAL

ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1295 OF 2024

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J U D G M E N T

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A.  Introduction

1.  This judicial review application concerns a decision of an Appeal Board (“Board”) nominated under section 27 of the Urban Renewal Authority Ordinance Cap 563 (“URAO”). The decision of the Board is dated 24 May 2024 (“Decision”), on an appeal concerning the implementation of a development project by the Urban Renewal Authority (“URA”) at Queen’s Road West / Kwai Heung Street C&W-007 (“Project”).

2.  The Decision was made under section 24(4)(a) of the URAO to authorize the Authority to proceed with the Project without any amendment, and so without excluding the Applicants’ properties (as identified below).

3.  The Applicants were at all material times the corporate vehicles of Mr Wong Chi Ming (“Wong”) and Mr Luk Yu Wa (“Luk”) until the latter passed away in 2019.

4.  The 1^st Applicant was and remains the registered owner of the Remaining Portion of Inland Lot No. 1276 at Nos. 291-293 Queen’s Road West, Hong Kong (“Nos. 291-293”) since its acquisition on 17 November 1991. The 2^nd Applicant was and remains the registered owner of the Remaining Portion of Section A of Inland No. 1276 at No. 295 Queen’s Road West, Hong Kong (“No. 295”) since its acquisition on 30 November 1996.

5.  The buildings at Nos. 291-293 and No. 295 (collectively “Subject Properties”) were completed in 1967 and 1941 respectively.

6.  The Putative Interested Parties are the Secretary for Development (“SDEV”) and the URA. It was the SDEV’s decision dated 15 September 2023 (“SDEV’s Decision”), authorising the URA to proceed with the implementation of the Project without excluding the Subject Properties, which was upheld by the Board in its Decision.

7.  By Form 86 dated 6 August 2024 (filed on 7 August 2024), the Applicants sought leave to apply for judicial review of the Decision, and the Board’s costs decision ordering the Applicants to bear the costs and expenses of the hearing of the Appeal (“Costs Decision”).

8.  I gave directions to bring the matter to a rolled-up hearing, which I fixed for 18 March 2025.

9.  At that hearing, the Applicants were represented by Ms Teresa Wu and Ms Carol Lee of Counsel, and the SDEV and URA were represented by Mr Michael Lok and Mr Billy Liu of Counsel. As would be expected, the Board took no part in the proceedings, and was excused from attendance.

10.  By my directions for the rolled-up hearing, the parties were required to submit their skeleton submissions which should not exceed the 20-page limit with double-line spacing. However, what the Court received from Counsel for the Applicants was their 37-page skeleton submissions with single-line spacing.

11.  It is unfortunately necessary to repeat that excessively long so-called skeleton submissions not only do not comply with the Court’s directions, but they are also often unhelpful in identifying the issues and the argument on those issues. Litigants and their legal representatives are again reminded to comply with case management directions made by the Court including page limits to skeleton submissions.

12.  At the end of the hearing, I reserved my decision.

13.  This is my Judgment.

B.  Background

14.  To consider the grounds of review in proper context, it is necessary to set out the background relevant to this application, which has been helpfully summarised by the parties in the Form 86 and their affirmations broadly as follows.

B.1  The Applicants’ intended redevelopment of the Subject Properties

15.  Between 2011 and 2019, the Applicants intended to redevelop the Subject Properties into a hotel. This was unsuccessful for a number of reasons including the Town Planning Board’s refusal, the death of Wong’s business partner Luk, and uncertain and unfavourable market sentiments for investment.

16.  Between 2020 and 2023, the Applicants took steps to explore other redevelopment options for the Subject Properties, namely potential construction of a composite building, including:

(1)  Instead of pursuit of the Applicants’ earlier proposal to the owners of the adjacent lot (i.e. the Remaining Portion of Inland Lot No. 1277 at No. 297 Queen’s Road West, Hong Kong (“No. 297”)) for potential joint redevelopment, the Applicants engaged Mr Wai Hing Wah (“Wai”), an Authorised Person and a Registered Architect, and his firm H. W. Wai (International) Limited (“Wai’s Firm”) to devise plans and designs and to oversee the intended redevelopment of the Subject Properties.

(2)  In October 2022, the Applicants decided to proceed with the redevelopment of the Subject Properties alone (“Plan 2 Drawing”) involving the construction of a composite building (“Proposed Composite Building”).

(3)  By letter dated 13 July 2023, the Building Authority (“BA”) approved the rectified building plans (submitted by Wai’s Firm on 13 June 2023) for the Proposed Composite Building (“Approved Plan”). The estimated completion time of the Proposed Composite Building was 4 to 5 years.

B.2   The URA’s Project

17.  On 2 December 2022, the URA commenced the Project, which includes, among others, the Subject Properties and No. 297, covering, a gross site area of about 1,295 square metres (“Site”) broadly bounded by (i) the Sun Hing Lane Children’s Playground (“Playground”) to the north; (ii) Kwai Heung Street to the east; (iii) Queen’s Road West to the south; and (iv) Centre Street to the west, as published by the URA in the project paper (“Project Paper”) for public inspection and the press release dated 2 December 2022.

18.  The Project’s “Notional Design” (Figure-03-C, C&W-007) revealed the following components:

(1)  A “Residential Tower” (“Residential Tower”) to the east of the Playground. According to the Project Paper, the Project would provide 186 new residential units.

(2)  A “Podium” to the south-east of the Playground (“Main Podium”). As set out in the Project Paper, the Main Podium would be of about 150 m² non-domestic GFA providing new government, institution or community (“GIC”) facilities.

(3)  A Public Open Space (“POS”) to the west of the Main Podium and to the south-west of the Playground. As set out in the Project Paper, it would be of about 155 m²; and

(4)  Another Podium located to the west of the POS (“Side Podium”).

B.3  The Objections of the Applicants to the inclusion of the Subject Properties as part of the Project

19.  As shown in the overlay of the Notional Design with the actual site conditions, the Subject Properties are situated somewhere on the intended locations of the Slide Podium and a part of the POS.

20.  Pursuant to section 24(1) of the URAO, through Denny Tam Surveyors Limited (“DTS”), the Applicants, as persons affected by the Project, submitted their objections (“Objections”) by Form No. S24 dated 1 February 2023 to the URA. The Objections included:

(1)  The Applicants had been pursuing redevelopment options for the Subject Properties since the 2000s.

(2)  It would be extremely unfair for the URA to come in at the downturn of the property market, “snatching” the Subject Properties and depriving the Applicants of their rights to redevelop them on their own accord when the Applicants had the financial abilities and full intention to do so.

(3)  The Applicants should be allowed to partake in the redevelopment jointly with the URA.

21.  The URA informed DTS by letters dated 14 March 2023 (“URA’s 1^st Responses”) that the Objections were not upheld, and provided the following reasons:

(1)  Although Nos. 291-293 & No. 295 had been acquired by the Applicants in 1991 and 1996 respectively, there was no redevelopment up to the date of the URA’s 1^st Responses.

(2)  In 2011 and 2014, the Applicants’ two applications for a proposed redevelopment of hotel on the Subject Properties were rejected by the TPB.

(3)  Despite the Applicants’ ownership of the Subject Properties for over 27 years, no redevelopment was realised up to date. It was uncertain whether the Applicants could eventually implement the redevelopment and, if so, when.

(4)  Compared with the intended redevelopment of the Applicants, the URA’s Project would have a clear timeline upon obtaining the authorisation of the SDEV.

(5)  Nos. 291-293 & No. 295 were of “Marginal” and “Varied” conditions respectively, according to the URA’s Building Condition Assessment information. As at September 2022, the Subject Properties had outstanding Fire Safety Directions (FSDN) and/or building orders issued under section 28 / section 30B of the Building Ordinance.

(6)  Contrary to the intended development of the Applicants involving the construction of pencil tower(s) which would likely be piecemeal in nature, the Project would bring planning gains to the community by (a) providing the POS of about 150 m² for public enjoyment; (b) opening up the Playground towards Queen’s Road West to enhance connectivity and accessibility; (c) providing about 150 m² of GIC facilities; and (d) revitalising the Playground to uplift the facilities and enhance environment (subject to agreement with relevant government departments).

(7)  Such planning gains would be compromised if the Subject Properties were excluded. The layout of the Residential Tower and the Main Podium would be highly constrained. In order to accommodate the permissible GFA for residential and retail development, the size of the POS may be reduced. It would jeopardise the intent to create an open-air POS in front of Queen’s Road West.

(8)  No. 297 would be isolated and lose the redevelopment opportunity.

(9)  The provision of low-rise retail portion along Centre Street / Queen’s Road West to enhance visual comfort and air ventilation would be lost.

(10)  A reduced site area would likely constrain the layout and efficiency of the basement car park, resulting in more levels of basement car park having to be built, which would not be environmentally friendly or cost-effective (“Basement Carpark Argument”).

(11)  Before the Government took action to resume the properties, the URA would try to acquire them from owners by private negotiation.

(12)  The current policy of the URA is that it does not provide for participation by private property owners in its redevelopment projects.

22.  The following further comments from the Applicants’ were submitted to the URA by DTS by letter dated 27 March 2023 (“Applicant’s Responses”):

(1)  The Applicants have full ability and determination to redevelop the Subject Properties.

(2)  The conditions of the Subject Properties were acceptable. There was no dangerous building order ever issued by the Buildings Department and no question of public safety.

(3)  Even if the Subject Properties were excluded from the Project, planning gains could still be obtained. The connectivity and accessibility of the Playground could be maintained. The opening up of the access to the Playground from Queen’s Road West and its improvement works would not be affected.

(4)  In comparison, the proposal of the Applicants would be more cost-effective because it would only take the Applicants around 4 to 5 years to complete the redevelopment of the Subject Properties whereas the URA would need 10 years to complete the Project.

(5)  It would be unreasonable to include the Subject Properties in the Project simply because the URA would wish to redevelop No. 297. The Applicants had also been actively negotiating with the owners of No. 297 for a joint redevelopment.

23.  The URA informed DTS by letters dated 27 April 2023 (“URA’s Final Responses”) that it decided not to uphold the Objections or to propose any amendment to the Project. The Applicants are of the view that the URA’s Final Responses are essentially the same as the URA’s 1^st Responses, except that the Basement Carpark Argument was not present.

24.  By letter dated 15 September 2023, the Applicants were notified via DTS that the SDEV had decided to proceed with the implementation of the Project without excluding the Subject Properties, i.e. the SDEV’s Decision.

B.4  The Appeal

25.  By Notice of Appeal dated 13 October 2023 (“NOA”), under section 28(1) of the URAO, the Applicants filed an appeal to the Board against the SDEV’s Decision. The Appeal was fixed to be heard on 24 November 2023.

26.  The Applicants considered that some documents relevant to the Appeal were not duly disclosed by the SDEV. Therefore, by letters dated 21 and 23 November 2023, written requests were made to the Board seeking specific discovery of the missing documents (“Specific Discovery Requests”).

27.  At the hearing on 24 November 2023, time was given to the SDEV to deal with the Specific Discovery Requests. The substantive hearing of the Appeal was adjourned to 14, 16 and 19 February 2024.

28.  On 8 December 2024, in response to the Specific Discovery Requests, the SDEV disclosed two full bundles of documents to the Applicants, by way of supplemental witness statements of Kwan Yee Fai Mike (“Kwan”) and Dy Wai Fung, both dated 8 December 2023 (“Kwan SWS” and “Dy SWS” respectively).

29.  The documents disclosed by the SDEV to the Applicants included, amongst others, the documents annexed to the URA’s submission by letter dated 28 April 2023 to the SDEV (“URA’s Submission”) as required under section 24(3) of the URAO in respect of the Objections, which the Applicants say should have been already disclosed to the Applicants:

(1)  Papers relevant to the determination of the Development Project Objection Consideration Committee (“DPOCC”) reached at its 1^st meeting held on 27 February 2023 in respect of the Objections (“DPOCC 27.2.2023 Meeting Papers”), including the Minutes dated 6 March 2023 (“DPOCC 1^st Meeting Minutes”).

(2)  Papers relevant to the determination of the DPOCC reached at its 2^nd meeting held on 18 April 2023 in respect of the Objections (“DPOCC 18.4.2023 Meeting Papers”), including the Minutes dated 21 April 2023 (“DPOCC 2^nd Meeting Minutes”).

(3)  The incomplete “Development Project Report” (“Incomplete Development Project Report”) setting out matters including the background and planning intentions for the Project (with Part 3 initially withheld by the SDEV).

(4)  The Stage 1 and Stage 2 Social Impact Assessments (“Stage 1 SIA” and “Stage 2 SIA”, collectively “SIAs”).

30.  On 18 December 2023, the Applicants sought, among other things, clarification of the contents of the documents disclosed.

31.  In view of the documents disclosed by the SDEV, the Applicants made the following applications to the Board:

(1)  to amend the NOA as per the Amended Notice of Appeal dated 15 January 2024 (“ANOA”);

(2)  for specific discovery of the Traffic Review Report (“TRR”) as referred to in Kwan SWS at §7, but withheld as one of the documents under Part 3 of the Incomplete Development Project Report;

(3)  for leave to adduce the Supplemental Witness Statement of Wai dated 21 December 2023 (“Wai SWS”).

32.  By letter dated 3 January 2024, the SDEV confirmed, among other things, that he had no objection to the proposed amendments to the NOA and agreed to disclose the TRR (forming Part 3 of the Incomplete Development Project Report).

33.  The substantive hearing of the Appeal took place on 14, 15 and 19 February 2024 in Punti. On 24 May 2024, the Appeal was dismissed by the Board with a costs order against the Applicants.

C.  Statutory Provisions Engaged

34.  Section 24 of the URAO provides as follows:

24. Objections to projects to be implemented by way of development project

(1) Any person who considers that he will be affected by a project to be implemented by way of a development project under section 26 referred to in a notice published under section 23(1) and who wishes to object to the implementation of the development project may, within the publication period, send to the Authority a written statement of his objections to the project.

(2) The written statement mentioned in subsection (1) shall set out—

(a) the nature and reasons for the objection;

(b) where the objection would be removed by an amendment of the development project any amendment proposed.

(3) The Authority shall consider all objections and shall, not later than 3 months after the expiration of the publication period, submit—

(a) the development project;

(b) the Authority’s deliberations on the objections;

(c) any objections which are not withdrawn; and

(d) an assessment by the Authority as to the likely effect of the implementation of the development project including, in relation to the residential accommodation of persons who will be displaced by the implementation of the development project, an assessment as to whether or not, insofar as suitable residential accommodation for such persons does not already exist, arrangements can be made for the provision of such residential accommodation in advance of any such displacement which will result as the development project is implemented,

to the Secretary for his consideration.

(4) The Secretary shall consider the development project and any objections which are not withdrawn and determine, consequent upon those objections, whether—

(a) to authorize the Authority to proceed with the development project without any amendment;

(b) to make an amendment to the development project to meet an objection raised under subsection (1); or

(c) to decline to authorize the development project.

…

35.  Objections like those made by the Applicants are made under section 24(1) and (2). Submissions are made by the URA according to section 24(3). With those materials, the SDEV shall determine under section 24(4) whether to authorise a project to proceed, to make an amendment to the project or to decline to authorise the project.

36.  Section 28 of the URAO sets out the appeal mechanism from a decision of the SDEV made under section 24(4)(a) to an appeal board constituted under section 27 with the following material powers:

28. Appeals

…

(9) Prior to or at the hearing of an appeal, an Appeal Board may—

(a) consider and determine whether a party should have access to documents, records, books of account or other exhibits which the party claims are relevant to the appeal and which are in the possession or control of another person and order that other person to give the party access to such documents, records, books of account or other exhibits as it may think fit;

(b) hear evidence on oath and administer any oath necessary to swear in a witness;

(c) admit or take into account any statement, document, record, book of account, other exhibit, information or matter whether or not it would be admissible as evidence in a court of law; and

(d) by notice in writing (a summons), summon any person to appear before it to give evidence and to produce any document, record, book of account or other exhibit specified in the summons.

…

(12) The Appeal Board shall inquire into any matter which it may consider relevant to the appeal, whether or not it has been raised by a party.

…

(14) At the completion of the hearing of an appeal, the Appeal Board—

(a) may confirm, reverse or vary the decision appealed against as it thinks fit;

(b) may, subject to paragraph (c), order any party to the appeal to pay only the costs and expenses incurred by the Appeal Board in hearing and determining the appeal, and the amount of such costs and expenses shall be determined by the Appeal Board having regard to—

(i) the amount of remuneration and allowances payable to the Chairman and the members of the Appeal Board under section 27(21); and

(ii) the amount of administrative or other costs and expenses incurred by the Appeal Board in relation to the hearing and determination of an appeal;

(c) shall not make an order under paragraph (b) against the appellant unless it is satisfied that it is reasonable and just for the appellant to bear the costs and expenses of the hearing.

…

D.  The Intended Grounds of Review

37.  As set out in the Form 86, there were no less than nine proposed grounds or review regarding the Substantive Decision of the Board as follows:

(1)  Ground 1 – Error in law in misunderstanding the nature of the hearing of the Appeal and in fettering its role or discretion.

(2)  Ground 2 – Error in law in failing to appreciate or understand the duty of candour owed by the SDEV and its breach of such duty in the Appeal.

(3)  Ground 3 – Error in law in failing to appreciate the Board’s curative role in the Appeal.

(4)  Ground 4 – Failure to consider matters that it was bound to consider / to exclude irrelevant matters.

(5)  Ground 5 – Accepting the Alleged Planning Gains and / or the Alleged Compromises put forth by the SDEV without any or any sufficient evidential basis.

(6)  Ground 6 – Error in law in failing to apply or correctly / properly apply the 4-step proportionality test.

(7)  Ground 7 – Accepting the URA’s financial strength without evidential basis.

(8)  Ground 8 – The Board demonstrated a real possibility of carrying a presumption and/or an appearance of predetermination in favour of the Project.

(9)  Ground 9 – Irrationality / Wednesbury unreasonableness.

38.  As regards the Board’s Costs Decision, the Applicants allege that it is irrational or Wednesbury unreasonable.

39.  In her Skeleton Submissions dated 6 March 2025, Ms Wu submitted that the Board committed both legal and factual errors, making the Substantive Decision irrational or Wednesbury unreasonable (considered individually or together under Grounds 1 to 8 and independently under Ground 9).

40.  Ms Wu classified the above Grounds 1 to 8 under the following two categories:

(1)  Grounds 1 to 3, being the “Substantive Grounds” for failing to comply or discharge Board’s duties and/or to exercise its powers; and

(2)  Grounds 4 to 8, being the “Procedural and Other Incidental Grounds” inclusive of:

(a)  failing to give adequate and clear or intelligible reasons to show whether or not certain factor had been considered at all (Ground 4); and/or

(b)  making finding in favour of or against certain evidence without a proper and valid basis or ground (Grounds 5 to 7); and/or

(c)  showing apparent bias (Ground 8).

41.  I will address Grounds 1 to 9 first, and then the Ground in respect of the Board’s Costs Decision. To reflect the effort put into the excessively long ‘skeleton’ argument advanced for the Applicants, I will set out the submissions at perhaps greater length than is really necessary.

E.  Ground 1 – Error in law: misunderstanding the nature of the hearing of the Appeal and in fettering its role or discretion

42.  As regards the Board’s Decision, Ms Wu submitted that in dismissing the Appeal:

(1)  The Board erred in law in misunderstanding the nature of the hearing of the Appeal, being a de novo hearing on the merits, and also in restricting itself in the scope of evidence which it could and should have received in the Appeal in:

(a)  ruling that the “matters that need to be considered by the Appeal Board in this appeal are restricted by the “framework” of the Amended Notice of Appeal”: Board’s Decision at §14;

(b)  rejecting the submissions of the Applicant that “the Appeal Board should consider the relevant information submitted by the URA to the Respondent, and examine the accuracy of the information in terms of the scope, the weight and the relevance, and that the Appeal Board should not “wipe off” the information provided by the URA”: Board’s Decision at §16;

(c)  considering that the Specific Discovery Requests were for “a large number of irrelevant documents” (Board’s Decision at §43), when the documents disclosed were all relevant and formed part of the URA’s Submission to the SDEV.

(2)  As a result, the Board failed to take into consideration the relevant materials annexed to the URA’s Submission.

(3)  The Board fundamentally misunderstood its duties and powers, wrongly believing it was entitled to disregard the evidence newly disclosed by the URA, which was included in the URA’s Submission, was statutorily required for the SDEV’s Decision under section 24(3) of the URAO and was highly relevant to the Appeal: Board’s Decision at §38;

(4)  The Board did not address the ‘irrelevance’ or ‘lack of merits’ of these documents in the Board’s Decision. Therefore, it is wholly unclear whether the Board considered these documents at all.

(5)  The Board’s Decision failed to address or even reference any materials annexed to the URA’s Submission, which was in disregard of material and relevant evidence to the Appeal.

43.  Regarding the complaint about the Basement Carpark Argument, the Applicants contended that:

(1)  The Board further erred in law in restricting the information that it could and should have received in the Appeal hearing:

(a)  It was recorded in the DPOCC 2^nd Meeting Minutes (§§2.15-2.16) the URA’s express acknowledgment (“URA’s Acknowledgment”) that the Basement Carpark Argument could not be used as a reason for not upholding the Objections, because the assessment of the design and technical feasibility of the basement carpark required verification and confirmation.

(b)  The Basement Carpark Argument was therefore not included in the URA’s Final Responses. Notwithstanding the URA’s confirmation of non-reliance, such argument was reintroduced by the SDEV in the Appeal.

(2)  The Applicants expressly brought out such matter as a live issue in dispute at the Appeal hearing, and were clearly entitled to know the basis of the SDEV’s reintroduction of the Basement Carpark Argument. The reasons and reasonableness of the SDEV’s reliance on such argument (as a ground of opposing the Applicants’ Appeal) would affect the Board’s decision on whether to accept such argument, and if so, the weight to be given to it. However, the Board failed to adequately and correctly appreciate those issues and actively hindered and obstructed the Applicants by preventing them from thorough examination of those matters during the Appeal, which severely limited the Board’s own ability to fully appreciate and understand the material issues in disputes related to the Basement Carpark Argument:

(a)  When the Applicants started to cross-examine on this topic the witness of the SDEV, Kwan (who had attended the DPOCC on behalf of the URA), the Board refused to allow Counsel to ask questions (at the Appeal hearing in the afternoon of 14 February 2024).

(b)  When the Applicants tried to ask Kwan questions as to why the SDEV had not disclosed the documents related to the Basement Carpark Argument, in particular those showing the URA’s Acknowledgment (for which the Applicants had made application for specific discovery), the Board refused to allow the Applicants to continue with the cross-examination (as shown in the transcript of the Appeal hearing in the afternoon of 14 February 2024).

(c)  The Board made inappropriate remarks and unprofessional comments by suggesting that the Applicants could have “as much time” as they wanted for asking questions, even though this would mean that nobody in the Appeal hearing (that date being Valentine’s Day) could meet their significant others for dinner (as shown in the transcript of the Appeal hearing in the afternoon of 14 February 2024).

44.  The following three propositions were put forward by Mr Lok in dealing with the Applicants’ challenge to the Board’s Decision, with which I agree:

(1)  It is for the decision-maker to assess the relevance of various factors in the decision-making process, and the Court does not review the merits of a decision: Hong Kong Telecommunications (HKT) Ltd v Secretary for Commerce and Economics and Development & Anor [2009] 1 HKLRD 833.

(2)  The planning judgment of local authorities should be respected: Tesco Stores Ltd v Environment Secretary [1995] 1 WLR 759.

(3)  Sufficiency of reasoning is fact-sensitive, and the decision-maker is not required to address every point raised by the parties: Siu Yat Fung Anthony v Joint Tribunal of Bar Council and Law Society [2022] 4 HKLRD 276.

45.  To understand the context, reasoning and considerations taken into account in the Board’s Decision, it is convenient to set out the relevant paragraphs of the alleged URA Acknowledgment, the Applicants’ ANOA, and the Board’s Decision.

46.  Regarding the alleged URA Acknowledgment regarding the basement carpark, it was recorded in the DPOCC 2^nd Meeting Minutes at §§2.15-2.16 as follows (English translation of the original in Chinese with bold emphasis added):

2.15 Certain members enquired whether the feasibility of the Project providing for a car park would be affected if URA excluded QRW No. 291-297 from the Project’s Site. URA representatives responded that if if QRW No. 291-297 were to be excluded from the Project’s Site, the layout and size of the Project’s Site would face additional technical constraints, and it was envisaged that an additional level of underground parking would be required to accommodate the required parking spaces. At the same time, if QRW No. 291-297 were to be subdivided into another site for redevelopment, and if such site is required to provide its own parking facilities, it is envisaged that two driveway entrances/exits would be required along the same section on the street. This would not be desirable in terms of the pedestrian walkway and the street.

2.16 However, as the detailed design and technical feasibility of the car park required further assessment and verification, the URA’s representative suggests that the statement about the design of the carpark would not be mentioned in the letter responding to the objection, the DPOCC agreed with such suggestion, relevant information requiring amendment would be tendered for approval when the minutes is circulated for consideration.

47.  In their ANOA, the Applicants added the following Basement Carpark Argument to the “Grounds of the Appeal” as §3A (without the underlining in original):

(3A) URA had taken into account consideration as set out in its Management’s Response that “the reduced site area would highly constraint [sic] the layout and efficiency of car park” which “may result in more levels of basement car park” without showing the feasibility of the design of basement car park in the Notional Design and/or the traffic load in the vicinity of the Development Project in the first place. After it was expressly acknowledged that the design of the basement car park was in question or doubt and should not be adopted as a ground for rejecting the Applicants’ objections. URA still failed or refused to revisit and assess the overall feasibility and design of the Project in light of that but continued to insist on it without consideration of other alternatives.

48.  The relevant parts of the Board’s Decision are as follows:

Burden and standard of proof

14. At the hearing on 24 November 2023, the Appellants applied to the Appeal Board for calling upon two more witnesses, namely Mr LEE Bing-wai and Mr. TAM Bing-man, Denny. Besides, the Appellants also applied to the Appeal Board for requesting the Respondent to disclose more documents. After discussion by both parties, the Appeal Board decided to allow the Appellants to call upon the two witnesses in question, and that a hearing of four days would be scheduled for 14 to 16 and 19 February 2024 pending the handling of documents by both parties. As confirmed by both the Appellants and the Respondent on the first day of the hearing held on 14 February 2024, the burden of proof falls on the Appellants in this appeal, and the standard of proof is based on the balance of probabilities. In addition, the Appeal Board accepts that the Amended Notice of Appeal submitted by the Appellants is the “framework” of the Amended Notice of Appeal.

The nature of this appeal and the functions of the Appeal Board

15. The Appeal Board considered that this appeal is a hearing de novo in nature. In respect of the functions of the Appeal Board, the views of the Appellants and the Respondent greatly differ.

16. At the hearing, the Appellants stressed that the Appeal Board should consider the relevant information submitted by the URA to the Respondent, and examine the accuracy of the information in terms of the scope, the weight and the relevance, and that the Appeal Board should not “wipe off” the information provided by the URA.

17. The Appeal Board accepts the Respondent’s submission on this issue that the Appeal Board as a board should consider afresh and independently the merits of the matters in relation to the Amended Notice of Appeal. Having considered all the evidence and submissions, the Appeal Board should make the decision as it thought fit (i.e. to confirm, overturn or vary the Decision). As a matter of fact, the Appeal Board’s role in this appeal is different from a court’s role in handling judicial review.

…

Analysis of other issues in contention between the Parties

37. The Appellants alleged that the Respondent did not cross-examine the Appellants’ witness, Mr. WAI Hing-wah, or raise objection to what he had claimed in his statement. The Appeal Board accepts that Mr. WAI Hing-wah is an “Authorised person” and a “Registered architect” rather than a “Town Planner”; therefore, matters related to town planning, including the impacts of economic, environmental and social factors on land use, are by no means the areas of his expertise. As such, it was not necessary to put him under cross-examination on issues falling outside the areas of his expertise.

38. In alleging that the Respondent has not exercised due diligence in the disclosure of documents, the Appellants requested the Appeal Board to draw, on this basis, an adverse inference against the Respondent party. In this connection, the Appeal Board, upon careful consideration, accepts that further disclosure of documents would be no more than a repetition, as argued by the Respondent party in its closing submission in rebuttal of the Appellants’ allegation; the Appeal Board is also satisfied that the nature of this hearing is a hearing de novo and consideration has been given to the merits of the case in relation to the Amended Notice of Appeal independently. As the Appeal Board has absolute discretion to consider any factors before making a decision, it is simply irrelevant as to whether any evidence has been adduced and/or considered at the earlier hearings convened by other entities. In a nutshell, the Appeal Board rules that the Respondent had fulfilled the duty of due diligence in disclosing the documents to the Appellants, and that there was no breach of this duty and/or obligation. The Appellants’ allegation in this regard is unsubstantiated.

…

49.  Against the above materials and on the facts, Mr Lok submitted (in summary) that:

(1)  The focus of the argument as put forward by the Applicants is primarily on the Board’s treatment of the Basement Carpark Argument, which relies heavily on the alleged URA’s Acknowledgment:

(a)  Procedurally, all the information or documentation relied on by the Applicants were duly provided to them well before the Appeal. In particular, the contention of the Applicants based on the Basement Carpark Argument and the URA’s Acknowledgment were already fully canvassed before the Board. The car park issue and the reason for raising the Basement Carpark Argument (despite the alleged URA’s Acknowledgment) were explored by the Board. Even on the Applicants’ case, whatever alleged “confusion and lack of clarity” might originally have ensued had been unravelled by the time of the Appeal.

(b)  Substantively, there was no such URA’s Acknowledgement as explained by Kwan in his Affirmation. In fact, there was substantive discussion on this issue. However, it was later on merely suggested or accepted that the car park design (which was subject to ongoing assessment) need not be referred to in the URA’s responses to the Applicants’ objections, which is different from ruling out the possibility of relying on the Basement Carpark Argument in and of itself. Even if there had been the alleged URA’s Acknowledgment, the Board was entitled to consider the argument given the de novo nature of the Appeal. By its very nature in context, there would be nothing sinister or objectionable as to the “change of stance” alleged by the Applicants. As explained before and accepted by the Board, by the time of the Appeal, the technical feasibility of the car parking plan had been assessed and the relevant TRR had received in-principle approval, which was also explained by the witness of the SDEV at trial. In the TRR, the consultant’s summary and conclusion regarding the proposed car parking space were set out.

(c)  Regarding the suggestion that the Applicants had been denied by the Board the “right to address these issues and concerns during the Appeal”, there was no such hindrance because the Applicants were entitled to, and did, fully deploy such arguments. As to the cross-examination of the witness of the SDEV on this issue, when explaining the relevance of the line of questions before the Board, the Applicants stated that “[t]he responsibility of the Board is to check whether they have overlooked or made mistakes”. In view of the de novo hearing of the Appeal, it would serve no useful purpose if such cross-examination is allowed: De Smith’s Judicial Review (9^th ed.) at §9-114.

(2)  On the Board’s Decision:

(a)  The Applicants’ complaint of “unlawful restriction of the evidence” by reference to the ANOA is unfair, when it was rightly positively confirmed by Counsel for the Applicants that the “things included in the [ANOA] are what [the Board] need[s] to consider”. Though the ANOA served as the framework, the Board made it clear that it would consider “the matters in relation to the [ANOA]” and render a decision “[h]aving considered all the evidence and submissions.

(b)  In the Form 86, the Applicants have not raised any new issues outside the ANOA which had not been considered by Board in its Decision, specifically including the Basement Carpark Argument and the alleged URA’s Acknowledgment (ANOA at §3A).

(c)  The Applicants’ attack on §38 of the Board’s Decision is unfair because that part, read in totality, does not mean that the Board ignored the materials submitted to it. In view of what had been disclosed before the Board, it (i) saw no utility in going back to the previous state and extent of disclosure; (ii) was of the view that “further disclosure of documents would be no more than a repetition”; and (iii) thought “it is simply irrelevant as to whether any evidence has been adduced and/or considered at the earlier hearings”.

(d)  Similarly, the Applicants’ complaint that the Board considered the Specific Discovery Requests to be for “a large number of irrelevant documents” must be viewed against the context of the discussion in the Board’s Decision at §43, which is about costs and does not show that the Board had wrongfully excluded any such materials from its consideration in the Board’s Decision.

(e)  The sufficiency of the reasoning is a matter of degree. Adequate reasons are those which are clear and sufficiently demonstrate the issues addressed by the decision-maker and the reasons for reaching his stated conclusions: Siu Yat Fung Anthony v Joint Tribunal of Bar Council and Law Society [2022] 4 HKLRD 276 at §67. The substantive arguments of the Applicants including the Applicants’ submissions on the Basement Carpark Argument have clearly been determined by the Board, which “is not required to perform the task of a first instance decision maker afresh and set out its own findings and reasons for the decision”. The substance of the decision in the context of how the grounds of appeal are presented to the tribunal ought to be looked at: Li Wai Hung Cesario v Administrative Appeals Board (CACV 250/2015, 15 June 2016).

50.  With respect, it seems to me that Ms Wu’s submissions are decontextualized analysis and misinterpretation of the Board’s Decision. Instead, I accept Mr Lok’s submissions.

51.  First, the Board specifically stated in its Decision that it was satisfied that the nature of the Appeal hearing is a hearing de novo and independent consideration had been given to the merits of the case in relation to the issues framed by the ANOA.

52.  Second, the ANOA was filed by the Applicants to add the Basement Carpark Argument (i.e. §3A) after obtaining the documents provided in response to to their Specific Discovery Requests. It defies logic for the Applicants to assert that Board erred in law by considering the matters in the Appeal by reference to the framework of the ANOA.

53.  Third, when the Board’s Decision is read and understood in proper context, the issues of the alleged URA Acknowledgment and the Basement Carpark Argument were already considered by the Board.

54.  In short summary of the paragraphs quoted above, the Board accepted that (1) the ANOA provided the ‘framework’ for the appeal, including the point raised by §3A, (2) the appeal was de novo, (3) meaning the Board should consider matters afresh and independently, (4) the complaint about failure to provide earlier disclosure does not lead to draw an adverse inference, (5) there is no point in requiring disclosure of the same material again, (6) fresh consideration has been given to the merits of the case on the materials before the Board, so that (7) what was or was not before previous entities is irrelevant.

55.  Therefore, there was no arguable error in law made by the Board, nor was there were any arguable fettering of the Board’s role or discretion. Ground 1 is not reasonably arguable with any realistic prospect of success.

F.  Ground 2 – Duty of candour

56.  As to the complaint about the Board’s failure in appreciating or understanding the duty of candour owed by the SDEV and its breach of duty in the Appeal, Ms Wu submitted that:

(1)  It is the statutory duty of the SDEV under section 28(4)(d) of the URAO to fully and fairly inform the Board of the grounds for opposing the Appeal, including presentation of the reasons underlying the SDEV’s Decision and the matters considered.

(2)  The common law duty of candour requires the SDEV to assist the Board by provision of full and accurate explanations of all the facts relevant to the issues which the Board must decide, and to draw the latter’s attention to relevant matters: Hong Kong Telecommunications (HKT) Ltd v Secretary for Commerce and Economics and Development & Anor [2009] 1 HKLRD 833 at §56. The SDEV, as the party seeking to oppose the Appeal, should make full and fair disclosure of the decision-making process, laying all the relevant facts and reasoning underlying the SDEV’s Decision subject to challenge before the Board: Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 at §§31 and 54.

(3)  The SDEV failed to disclose the documents annexed to the URA’s Submission, which were required to be considered under section 24(3) of the URAO and were relevant to the determination of the Appeal, until the Applicants made the Specific Discovery Requests. It attempted to persuade the Board that such disclosure was merely a “repetition” (Board’s Decision at §38).

(4)  The failure of the Board in properly appreciating or understanding both the statutory duty and the duty of candour involved was detrimental in the following ways:

(a)  It led to the Board’s rejection of the documents disclosed by the URA, as annexed to the URA’s Submission, and their acceptance of the SDEV’s submissions that the contents of these documents were merely ‘repetitive’.

(b)  The failure of the Board in recognising the SDEV’s breach of statutory duty and the duty of candour resulted in its inability to fulfil or discharge its duty.

(c)  Such failure has prevented the Board from properly addressing whether an adverse inference regarding the unfavourable tenor of evidence should be drawn against the SDEV: Tullett & Tokyo International Securities Ltd v APC Securities Co Ltd [2001] 2 HKLRD 356 at §§285 & 291.

(d)  The claim that the Specific Discovery Requests were eventually fulfilled by the SDEV does not mitigate nor relieve the Board from its duty to make a proper determination.

57.  Ms Wu referred to “accountability and transparency”, as one of the key features of the URA’s role, as stated in the Urban Renewal Strategy published by the Development Bureau in February 2011, and asserted that:

(1)  the URA is expected to be “accountable, open and transparent” and should do the same in the Appeal hearing; and

(2)  the Applicants are entitled to know what were considered in the DPOCC 2^nd Meeting.

58.  As to the duty of candour, Ms Wu further clarified that the point she tried to make is that the SDEV, being a party to the proceedings before the Board, has to fulfil such duty and the Board has the same duty to apply it. She emphasised that a public authority is required to be clear in setting out its own case and otherwise it would not be possible for the Applicants to respond to it.

59.  The law on the duty of candour is well-established. In respect of judicial review proceedings, it was considered in Chu Woan Chyi v Director of Immigration [2009] 6 HKC 77 at §§11-21. The relevant principles were summarised in my decision in LW v The Medical Council of Hong Kong [2022] HKCFI 734 at §§91(1)-(10) as follows:

(1)  Where a decision is challenged in judicial review proceedings, it is in some cases unnecessary to go into any or any great detail as to the reasons underlying the decision.

(2)  However, sometimes it is necessary for the court to examine the reasons for the decision in order to test the legality of it (subject to the limitations that exist in judicial review proceedings).

(3)  But, even in such cases the need to have regard to the duty of candour is rare. This is because the reasons for most decisions are readily apparent or readily made available by the decision-maker. The court need only look at the reasons to see whether or not the decision has been lawfully made.

(4)  The duty of candour is an aspect of good government, and proper and transparent administration.

(5)  From a practical point of view, the duty of candour is primarily relevant from an evidential point of view. The duty is placed on the decision-maker, as respondent to the judicial review challenge, to be full and frank to both the court and the applicant in disclosing all relevant facts and documents.

(6)  The facts and documents may relate to the actual reasons for a decision or to any other aspect that is relevant in the judicial review proceedings.

(7)  Nevertheless, the factual issues in a given judicial review case are often limited. Facts are often irrelevant because the focus of the proceedings is on the legality of the decision, or on questions of law.

(8)  Ordinarily, the duty arises after leave has been obtained by the applicant to commence judicial review proceedings. The duty of candour is not a basis for ‘fishing’ for a case.

(9)  The obligation to be full and frank in discharge of the duty of candour is not an open-ended or imprecise concept. What in any given case may constitute the fulfilment of that duty is entirely dependent on the issue or issues that are before the court.

(10)  Whilst the court will be astute not to permit so-called ‘fishing’ expeditions, once the critical issue is identified and resolution of that issue requires the court to be provided with adequate material, the court will in principle be more, not less, inclined to make necessary orders for disclosure.

60.  I agree with Mr Lok’s submission that Ground 2 must be rejected for the following two reasons.

61.  First, since the complaint is the alleged failure to discharge the duty to provide relevant documents until the Applicants made the Specific Discovery Requests, such complaint is groundless and academic. Otherwise, a complaint as to inadequate disclosure can be made and adverse inferences can be drawn in every case in which further documents are disclosed after an application for specific discovery. The Applicants did not put forward any separate ground of breach of natural justice.

62.  Second, it is difficult to understand what adverse inference as alleged by the Applicants should or could be drawn. As the Applicants’ complaint of the alleged inadequate disclosure was confined to an earlier stage of the proceedings, which had been already been ‘rectified’ by the SDEV’s voluntary further disclosure to the Board, it is unclear what further inference can or should be drawn. There is no suggestion of any relevant material being withheld from the Board by the time of the substantive hearing of the Appeal.

63.  Where the duty of candour arises in the context of judicial review proceedings, it is a duty placed on the decision-maker. In this case, that is the Board as the Putative Respondent to the intended judicial review challenge to the Board Decision.

64.  Apparently, the focus of the Applicants’ complaint is on the alleged breach of the duty of candour by the SDEV within the Appeal proceedings. But there is no arguably proper basis to say that the Board failed to appreciate or understand its duties or that it was in breach.

65.  Ground 2 does not identify a reasonably arguable ground with reasonable prospects of success.

G.  Ground 3 – Error of law: curative role

66.  Ms Wu submitted that an appeal carries a curative effect, meaning that earlier decisions which do not fully comply with procedural fairness requirements can be remedied or cured: Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409 at §§67-68.

67.  But, she submitted that in this case the Board failed to recognise the significance of its curative power in the context of the unfair approach adopted by the URA, and to independently assess the Basement Carpark Argument (separate from the SDEV) to determine whether it should be allowed or relied upon to reject the Objections, as can be shown in the following matters:

(1)  The URA failed to mention that the Basement Carpark Argument lacked technical verification or confirmation and should no longer be relied upon to reject the Objections, as deliberated in the DPOCC 2^nd Meeting in the URA’s Final Responses.

(2)  This approach (whether with or without the URA’s Acknowledgement) meant that material information was withheld, and an unverified argument was presented. The omission deprived the Applicants of knowing that a critical concern was no longer relevant.

68.  The gist of Ms Wu’s argument is that as the Board did not fully grasp the nature of the de novo hearing (i.e. Ground 1) and failed to recognise the significance of the statutory duty and the duty of candour in the Appeal (i.e. Ground 2), the Board was further unable to fulfil its duty independently to exercise its curative role concerning the SDEV’s Decision.

69.  Hence, I agree with Mr Lok’s submission that as the Applicants’ complaint under Ground 3 essentially hinges upon Grounds 1 and 2, it should also be dismissed because the matters as referred to by the Applicants in respect of the alleged failure of the Board in appreciating its curative role in the Appeal had already been canvassed before the Board such that by the time of the Appeal, both the Board and the Applicants were apprised of the relevant information.

70.  Ground 3 is not reasonably arguable with any realistic prospect of success.

H.  Ground 4 – Relevant and irrelevant considerations

71.  Ms Wu submitted that a decision-maker needs to consider matters which he is bound to consider and exclude from his consideration matters which are irrelevant to what he must consider: To Kwan Ho v Deputy Registrar of the High Court (unreported, HCAL 895/2019, 31 March 2021) at §39. This principle is not controversial.

72.  In support of the Applicants’ allegation that it is unclear whether the Board took into account the relevant considerations in the Appeal (as discussion of them and reasons for their exclusion were not found in the Board’s Decision), Ms Wu relied on the following examples:

(1)  The materials annexed to the URA’s Submission were determined by the Board as irrelevant in the Board’s Decision at §43 without giving any reason.

(2)  In the Board’s Decision, it did not include any reference to these documents in its reasoning.

(3)  In wrongly rejecting the clear intent and demonstrated ability of the Applicants to redevelop the Subject Properties, the Board disregarded the significant legal effects or implications of the Accrued Right arising from the BA’s approval for the Applicants to build the Proposed Composite Building on the Subject Properties: Wells v Minister of Housing and Local Government [1967] 1 WLR 1000, Spackman v Secretary of State for the Environment (1977) 33 P&CR 430 and Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §81(3).

(4)  The Board did not provide any reasons for its disregard of this relevant and material consideration, despite mentioning “Private property rights protected by the Basic Law” in the Board’s Decision at §§22-23.

(5)  The disregard was further highlighted by the Board’s ruling in the Board’s Decision at §27(4) that the Accrued Right was formed “subsequent to (a) the commencement of the Project on 2 December 2022 and (b) the statutory deadline (i.e. 2 May 2023) for the URA to make submissions to [the SDEV]”, which is not clear and is made without any reason or legal analysis.

(6)  Despite the preparation works for securing the Accrued Right having effectively started since June 2022, with sets of drawings produced before commencement or announcement of the Project, such preparation works were not mentioned in the Board’s Decision at all.

(7)  Regarding the financial viability of the Applicants, the Board’s Decision at §27(6) only assessed Wong’s personal financial ability, as one director of the Applicants, and did not address the financial strength of the 50% shareholders of the Applicants, namely the Heroic Success Limited (“Heroic Success”), which had a deposit of not less than 20 million dollars with a bank in Hong Kong. In addition, Heroic Success had had the ability to secure additional facilities or loans from banks as it has no outstanding liability.

73.  Ms Wu further submitted that adequate and intelligible reasons for giving weight to the following irrelevant factors were not provided by the Board:

(1)  In assessing the Applicants’ intent, the Board’s Decision at §§1 and 27(1) lacked sufficient reasoning to justify solely resting on the unsuccessful result before the TPB to reject the Applicants’ intent.

(2)  There was an absence of explanation for the Board’s Decision at §27(3) that a redevelopment project should “solely be a commercial decision, influenced by commercial considerations”, excluding considerations such as human-related factors (e.g. the then health condition of Wong’s partner).

(3)  Without any adverse finding against the Applicants regarding their commercial intent, the Board further failed to provide adequate and intelligible reasons as to why Wong’s truthfulness in this regard was a relevant consideration.

(4)  The Board failed to explain why “[t]he need to carry out a host of other steps and efforts in order to proceed with the redevelopment of Nos 291-293 and No. 295 in compliance with the statutory requirements” (Board’s Decision at §27(5)), being a matter for a later stage, was a concern for the Appeal.

(5)  Several other important factors are as follows:

(a)  There was no evidence to suggest that any such statutory requirements would not be met by the Applicants.

(b)  The Board ignored without reason Wai’s evidence that the statutory requirements were mere ‘formalities’ commonly imposed by the BA on all development projects (not just the Applicants) prior to the commencement of building works.

(c)  There was no evidence to suggest that the BA would not grant the Applicants approval of the Proposed Composite Building in approximately 3-months’ time once the site investigation was completed.

(d)  Alternatively, if the above was a relevant factor for consideration, the Board failed to provide any reason of not considering that the Project (currently based only on the Notional Design with no definitive plans or drawings) would also be required to comply with the statutory requirements and face similar, if not more, uncertainties.

74.  As to the Applicants’ allegation that the Board failed to take into account a number of relevant considerations, Mr Lok’s submission was that each of those considerations was considered by the Board, as shown in the following table:

Matter	Applicants’ Materials and Submissions	SDEV’s Materials and Submissions	Board’s Decision
Materials Annexed to the URA’s Submission (see Form 86 §79(1))	Closing Submissions §§34-44	Closing Submissions §§13-18	§17, holding that the Board considered “all the evidence and submissions”. §38, holding that after careful consideration, the further disclosure of documents would be no more than a repetition. §43, concluding that a number of documents requested by the Applicants were irrelevant.
Accrued Right and preparatory work (see Form 86 §§79(2)-79(3))	Closing Submissions §§51, 65-75	Closing Submissions §§38(4)-(5)	§27(4), holding that the approval of the general building plan took place subsequent to the commencement of the Project and the statutory deadline for the URA to make submissions to the SDEV. §27(5), holding that in any case, the Applicants would still need to carry out a host of other steps and efforts in order to proceed with the redevelopment.
Proof of Financial Strength (see Form 86 §79(4))	Closing Submissions §§52-53	Closing Submissions §§38(6)-(7)	§27(6), noting that the only evidence provided by the Applicants in relation to the proof of financial strength was the evidence from the Shanghai Commercial Bank. The Appeal Board also considered the evidence under cross-examination. It came to the conclusion that there was insufficient proof of financial strength by the Applicants.

75.  I accept that submission. The relevant paragraphs of the analysis in the Board’s Decision, concerning the Applicants’ intent and ability to redevelop the Subject Properties and their alleged Accrued Right arising from the BA’s approval to build the Proposed Composite Building, are as follows:

Whether the Appellants have the intent and the capacity to undertake redevelopment

…

27. Upon consideration of all the statements, evidence and submissions in the case, the Appeal Board rules, on the following grounds, that with regard to the issue of whether the Appellants have a genuine intent to develop their properties, the Appellants have failed to prove such an intent on a balance of probabilities:

(1) The Appellants acquired Nos. 291-293 Queen’s Road West and No. 295 Queen’s Road West in 1991 and 1996 respectively, and the two planning applications in respect of the Lots were rejected by the TPB in 2011 and 2013 respectively.

(2) The review and appeal in respect of the planning application rejected by the TPB in 2013 were dismissed and abandoned in 2014 and 2016 respectively, and no further planning application has been made in respect of the Lots since then. As such, the Appellants’ redevelopment plan for the Lots are fraught with uncertainty.

(3) Under cross-examination, Mr. WONG Chi-muk agreed that the Appellants’ properties were owned in his name or under the name of his companies, and therefore they “could be leased, sold or redeveloped” in light of the “circumstances”. And the so-called redevelopment plan had been “delayed” or “halted” due to the illness of his business partner. The Appeal Board considers that the view of Mr. WONG Chi-muk as a businessman on redevelopment should solely be a commercial decision, influenced by commercial considerations. While WONG Chi-muk repeatedly denied this under cross-examination, the Appeal Board rules that his testimony is untruthful.

(4) While the general building plan submitted by the Appellants was approved on 13 July 2023, this took place subsequent to (a) the commencement of the Project on 2 December 2022 and (b) the statutory deadline (i.e. 2 May 2023) for the URA to make submissions to the Respondent under the relevant legislation.

(5) In any event, even if the building plan has been approved, the Appellants would still need to carry out a host of other steps and efforts in order to proceed with the redevelopment of Nos. 291-293 and No. 295 in compliance with the statutory requirements.

(6) In addition, Mr. WONG Chi-muk has only provided in this appeal the evidence from the Shanghai Commercial Bank to prove the evidence of a bank loan of HK$14,000,000 and the Appellant’s long standing relationship with the Bank. Under cross-examination, when asked about the redevelopment cost in the Appellant’s case which might possibly be around $67 million, Mr. WONG Chi-muk said that construction works and bank loans would be made in parallel; this could only be premised on the fact that he and his business associates were genuinely “rich”, and that bank loans in relation to construction were “indiscriminately approved” and “definitely approved”. He also admitted that he and his companies had other bank accounts and other debts, but none had issued a letter in support of his financial position in the same friendly way as Shanghai Commercial Bank had done. Given that the burden of proof falls on the Appellant party, the Appeal Board rules, on the basis of these pieces of evidence alone, that the Appellants have failed to prove that they had sufficient financial strength to complete the redevelopment, and their standard of proof cannot meet the balance of probabilities.

28. Regarding the Appellants’ allegation that the URA wrongly took the view that the Appellants were obliged to undertake development, the Appeal Board accepts the Respondent party’s argument that the URA’s statement in question was merely a response to the Appellant’s submission as follows: “If our Company is able to secure the intent of co-operation from the owners of the neighboring lots – owners of Lot Nos. 291-293 Queen’s Road West – to develop the lots (i.e. No. 291, Queen’s Road West, No. 293 Queen’s Road West, No. 295 Queen’s Road West and No. 297 Queen’s Road West) on our own, will the Authority revise the existing development proposal as a result?” (see the letter dated 24 March 2023 from the Appellants to the URA and the URA’s response dated 27 April 2023 to the Appellants.) The Appeal Board rules that the URA has never assumed that the Appellant should have been obliged to undertake redevelopment from the outset.

76.  On the facts of the present case and reading the Board’s Decision as a whole in proper context, I accept Mr Lok’s further submissions that:

(1)  It has to be emphasised that the law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State: Tesco Stores Ltd v Environment Secretary [1995] 1 WLR 759, at 780E-H.

(2)  The materials annexed to the URA’s Submission were considered in the Board’s Decision at §§17, 38 and 43: the Board held that by reason of the de novo nature of the Appeal, it should consider afresh and independently the merits of the matters after having considered all evidence and submissions. The reference to “further disclosure” being “no more than a repetition” in the Board’s Decision at §38 precisely illustrates that the complaint of the Applicants as to the alleged inadequate disclosure had, by the time of the Appeal, been adequately dealt with such that no further disclosure was necessary even on the Applicants’ case.

(3)  The Applicants’ alleged “clear intent and demonstrated ability to redevelop the Subject Properties”, the “Accrued Right arising from the BA’s approval for [the Applicants] to build the Proposed Composite Building” and the “preparation works” purportedly undertaken by the Applicants were all duly considered in the Board’s Decision at §§27(4)-(5).

(4)  The Board duly considered and held that such approval took place “subsequent to the commencement of the Project” and the “statutory deadline for the URA to make submissions to the [SDEV]” and that even if the building plan has been approved, the [Applicants] would still need to carry out a host of other steps and efforts in order to proceed with the redevelopment … in compliance with the statutory requirements” (which assessment clearly ties in with the reference to the timing of the BA approval). This assessment also answers the suggested need expressly to spell out the existing preparation works when there is no dispute that there are indeed many remaining steps. The weight to be attached was a matter of the Board.

(5)  The “proof of financial strength” was duly considered by the Board, which specifically referred to the “evidence from the Shanghai Commercial Bank to prove the existence of a bank loan of HK$14,000,000 and the Applicants’ long standing relationship with the Bank” (Board’s Decision at §27(6)). The Board was entitled to conclude that the Applicants had “failed to prove” financial strength on the basis of these pieces of evidence alone, especially in the absence of any challenge as to the Board’s identification and application of the burden of proof.

77.  In respect of the Applicants’ complaint of irrelevant considerations taken into account by the Board, the gist of Mr Lok’s response was that:

(1)  The Applicants made no suggestion that the matters are those “clearly identified by the relevant legislation as considerations to which regard must not be had”: (Kamran Javid v Permanent Secretary for Security [2023] HKCFI 1944 at §56).

(2)  The considerations taken into account by the Board closely related to or were associated with the grounds set out in the ANOA, the Applicants’ evidence and the Applicants’ submissions before the Board.

(3)  The complaint is not so much that these were irrelevant factors simpliciter, but really that the Board did not accord the sort of weight that the Applicants would like to have been attach to such factors. The question of weight must be within the purview of the Board: Tesco Stores Ltd v Environment Secretary [1995] 1 WLR 759, at 780E-H.

(4)  Given that the Board’s Decision at §§27-28 must be read in its entirety and context, the Applicants’ suggestion that the Board was “relying solely on the unsuccessful result before the TPB to reject the Applicants’ intent” is unfair. The Board was entitled to take into account the Applicants’ unsuccessful TPB applications, which were “dismissed and abandoned in 2014 and 2016 respectively, and no further planning application has been made in respect of the Lots since then” such that the “[Applicants’] redevelopment plan for the Lots are fraught with uncertainty” (Board’s Decision at §27(1)-(2)). The uncertainty ties in with, for example, the “host of other steps and efforts in order to proceed with the redevelopment” (Board’s Decision at §27(5)) which would have to comply with statutory requirements.

(5)  It is likewise of little utility to zoom into the alleged lack of evidence to suggest that any such statutory requirements would not be met by the Applicants or the implicit rejection of the Applicants’ assertion that statutory requirements were mere formalities. The Board was discussing this in the context of whether the Applicants have the intent or ability to redevelop. So, whether the Project itself would also likely be subject to the same requirements is beside the point.

(6)  The Board had specifically referred to and considered the oral evidence as to the delay or halting of the Applicants’ redevelopment plans, and was entitled to consider the explanation as inadequate or untruthful (Board’s Decision at §27(3)).

78.  As stated at §1 of my decision in Hostford Development Limited v Town Planning Board [2024] HKCFI 2219, if a person considers that a point made to her is irrelevant to the decision to be made, the question which may arise is whether (1) she has taken that point into consideration but has given no weight to it because she thinks it is irrelevant, or (2) she has excluded that point from her consideration because she thinks it is irrelevant.

79.  In the present case, the argument as relied upon by the Applicants seems to me to be about the weight given. It is trite that the weighing of matters is within the discretion of the decision-maker. The weight to be given to the various aspects was a matter for the Board, to be interfered with only if the conclusion was irrational or Wednesbury unreasonable – the question posed by Ground 9 below. I do not find any error to be of sufficient gravity to interfere.

80.  As to the alleged duty of providing reasons, the relevant principles in relation to the giving of reasons for administrative decisions are well known and have been considered by me in previous cases, where I have offered the following summary of the principles in my decision in Hostford Development Limited v Town Planning Board [2024] HKCFI 2219 at §§68(1)-(11) as follows:

(1)  There is no general duty to give reasons for administrative decisions, but the nature or circumstances of an adjudication might indicate a necessity for giving reasons.

(2)  If and when a duty to give reasons arises, what is regarded as adequate depends on the particular facts of each case.

(3)  The Court should consider a reasons challenge with practical reality in order to prevent an application for judicial review from being turned into a merits review, and to avoid treating day-to-day administrative decision-making processes as if they were judgment-writing.

(4)  The reasons given should show that the decision-maker has addressed the substantial issues and show why the decision-maker has come to its decision.

(5)  The reasons should show that the issues that arise for serious consideration have been considered.

(6)  But the reasons in any given case may not require great elaboration, and they may be brief.

(7)  Sufficient reasons may be required so as to enable the affected individual to exercise effectively any right to appeal or review.

(8)  The giving of reasons in any individual case must be viewed in the context of that case.

(9)  Hence, it may be that the Court can have regard to the prior interaction or exchange between the parties to determine whether the reasons given are sufficient to meet the requirements of the principles.

(10)  Where the decision-maker purports to have given reasons, the reasons should be subject to the same level of scrutiny as if there was an express duty to give reasons.

(11)  A reasons challenge will only succeed if the party aggrieved can satisfy the Court that he has genuinely been substantially prejudiced by the failure of the decision-maker to provide an adequately reasoned decision.

81.  As discussed, there is no evidence reasonably to suggest that the Board disregarded relevant considerations or took into account irrelevant considerations. There is also no basis reasonably to assert that the analysis or reasons provided in the Board’s Decision is insufficient or lacks clarity.

82.  Ground 4 is not reasonably arguable with any realistic prospect of success.

I.  Ground 5 – Lack of evidential evaluation

83.  As regards the Applicants’ allegation that the Board accepted the Alleged Planning Gains and/or the Alleged Compromises put forth by the SDEV without any or any sufficient evidential basis, Ms Wu’s submissions are in summary that:

(1)  The Board has accepted the SDEV’s case that the Subject Properties occupy a core position in the Project that is vital for the provision of the planning gains and ruled that the Subject Properties were “indispensable” to the Project (Board’s Decision at §29(2)).

(2)  It is important to note that:

(i)  The SDEV’s case comprised two components: the Alleged Planning Gains and the Alleged Compromises.

(ii)  The SDEV or URA rely only on the ‘Notional’ Design, with no definitive plans, drawings, or calculations and remaining in an early preliminary stage (subject to potential revisions, adjustments and uncertainties), to argue for the Alleged Planning Gains and against the Alleged Compromises.

(iii)  The SDEV or URA did not provide any comparative analysis regarding the inclusion and non-inclusion of the Subject Properties with different or alternative site layouts or Gross Floor Areas (“GFA”), etc. There was no evidence to illustrate that any feasibility of adjustments or the option of exclusion had ever been considered.

(iv)  In upholding the SDEV’s Decision in the Board’s Decision at §§27 and 29-30, the Board essentially accepted the SDEV’s case, and consistently failed to provide adequate and intelligible reasons for accepting or rejecting the evidence.

(3)  No reasons were provided to justify why the Board accepted the SDEV’s Decision, which is problematic because it is evident that the URA (and consequently the SDEV) insisted that the Alleged Planning Gains must be strictly and rigidly followed, without any flexibility for the Alleged Compromises. Ms Wu provided 16 examples in her skeleton submissions (“Contrary Evidence”) which need not be repeated. She further submitted that it is evidently clear that:

(a)  The Board fettered its discretion in making the Decision, and simply mirrored the same rigidity.

(b)  It remains unclear whether the Board had considered the Contrary Evidence, including the observations and evidence of the Applicants’ expert, Wai, as well as those clearly stated in the SIAs, the Planning Report and the TRR, which are issues that warrant serious consideration but were not addressed in the Board’s Decision at all.

(4)  It is legally impermissible for the URA to argue that it should be assumed that in arriving the Decision, the Board must have explored and duly considered materials having placed before it and/or referred to or identified by the parties, because:

(a)  It is well-established that there is no assumption that the Board considered the documents placed before it, even if it expressly acknowledged that various materials were presented by the parties: Ina Astuti v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 448 at §§39-40.

(b)  In fact, the Board made no such relevant acknowledgment at all.

(5)  The URA references the Board’s Decision at §37 merely as an attempt to justify the Board’s lack of reasoning. The complete disregard of Wai’s evidence by the Board, allegedly because he was not a “Town Planner” and that “matters related to town planning, including the impacts of economic, environmental and social factors on land use, are by no means the areas of his expertise” is fundamentally flawed for the following reasons:

(a)  The expertise of Wai in town planning was never challenged at any stage of the Appeal, except until the SDEV’s Closing Submissions, which meant the Applicants had no opportunity to respond.

(b)  The Board failed to recognise that such a challenge from the SDEV was made solely to justify the SDEV’s own failure to properly challenge the evidence in cross-examination, and it was incorrect for the Board to accept it.

(c)  Wai was asked for his views during cross-examination on matters related to planning gains, which evidenced the acceptance of Wai’s town planning expertise by the SDEV.

84.  With respect, it seems to me that the Applicants’ complaint under this Ground is in effect more or less repackaging of the previous Grounds, which amount to a “merits” challenge to the Board’s Decision or an attempt at re-running the argument put forward in the Appeal. I accept Mr Lok’s submission that Ground 5 must be rejected for the following three reasons.

85.  First, as to the alleged inadequacy of reasons, while the Board was obliged to give the reasons for its decision, it was not obliged to give detailed reasons for those reasons, or to respond to every point made in argument: Newsmith Stainless Ltd [2017] PTSR 1126 at §52. In this regard, the Court must be astute to ensure the challenge to the Decision is not a cloak for a rerun of the arguments on the planning merits: Hostford Development Limited v Town Planning Board [2024] 5 HKLRD 520 at §67(1). This is particularly so because in planning enquiries, the decision maker has to balance the conflicting interests affected by the planning proposal: Capital Rich Development Ltd v Town Planning Board [2007] 2 HKLRD 155 at §82.

86.  Secondly, the Applicants’ suggestion that any “definitive plans, drawings or calculations” or “comparative analysis” are necessarily required was made without support from authority. Hence, the force of the submission that each planning decision turns on its own facts, and whether a particular decision is sufficiently clear depends on the relevant context: Hostford Development Limited & v Town Planning Board [2024] HKCFI 2219 at §45(2).

87.  Further, the Board was not engaged in some detailed drafting process for the Project, starting with a blank sheet. Nor was its task to reach various amendments by comparing a number of different possible options. Its task was the one identified in section 28(14) of the URAO, of confirming or reversing or varying the decision appealed against, where the original options for the decision were those identified under section 24(4), namely whether to authorise a project to proceed, to make an amendment to the project to meet and objection, or to decline to authorise the project.

88.  Whilst Ms Wu sought to emphasise that the applicants’ concern was as to the extent of the Project. The relevant question of extent was that raised by the objection – namely, that the Project should not extend to a Site which included the Subject Properties, but should be limited to a Site which excluded them. The question for the Board to decide was whether the Project should or should not be authorised to proceed, and/or whether there should be an amendment so as to meet the objection as to the inclusion of the Subject Properties.

89.  Thirdly, the Applicants’ assertion that there were no reasons provided to justify why the Board accepted the SDEV’s Decision is unsound because:

(1)  As regards the Planning Gains or Compromises, the Board expressly at the Board’s Decision at §30 identified that:

(a)  the possibility of a “domino effect” would be created;

(b)  “holistic consideration” had been given to the Project;

(c)  the Applicants’ plan was infeasible;

(d)  the URA or SDEV had considered the Project “as a whole and in detail, without showing any favouritism”; and

(e)  the URA or SDEV had considered “the interests of all owners”.

(2)  There was ample evidence before the Board on the Planning Gains and Compromises. The Applicants were able to identify and recite at length in the Form 86 at §§82-83 the Planning Gains and Compromises set out in the evidence of the SDEV in the Appeal below.

(3)  Regarding the Contrary Evidence, the Board was fully mindful of the Applicants’ position that “the exclusion of [the Applicants’] properties would not affect the Project”: Decision at §30. At §37 of the Board’s Decision, it was held that the Applicants’ expert, Wai, is an architect, not a town planner and therefore “the impacts of economic, environmental and social factors on land use, are by no means the areas of his expertise”. The areas that the Applicants’ expert discussed had been referred to in the parties’ closing submissions before the Board.

(4)  The present case is therefore distinguishable from Ina Astuti v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 448.

90.  On the facts of the present case as traversed above and reading the Board’s Decision in its totality, there is no force in the suggestion that the challenged decision was made without evidential basis. Ground 5 is not reasonably arguable with any realistic prospect of success.

J.  Ground 6 – Proportionality test

91.  As to the alleged error in law committed by the Board in failing to apply or correctly / properly apply the 4-stage proportionality test, Ms Wu contended that:

(1)  While the heading of “Private property right protected by the Basic Law” was used in the Board’s Decision, the related passages do not provide or contain any reasons or legal analysis to explain why the inclusion of the Subject Properties (restricting the Applicants’ property rights including the Accrued Right) satisfied the well-established test as postulated in Hysan Development Co Ltd & Ors v Town Planning Board (2016) 19 HKCFAR 372 at §§100-104, 124-129 & 134-135.

(2)  The Board’s Decision (at §§39-40) solely focused on the benefits the Project could bring to the public, without any consideration of the interests of the Applicants.

(3)  Despite the Applicants’ Contrary Evidence indicating the lack of necessity in rigid adherence to the Alleged Planning Gains and Compromises, given that the Project was still at a preliminary conceptual stage with only an abstract Notional Design, the relevant part of the Board’s Decision failed to address the following material questions, being the relevant legal tests:

(a)  Whether the inclusion of the Subject Properties was ‘rationally connected’ with any legitimate aim?

(b)  Whether the inclusion was ‘manifestly without reasonable foundation’?

(c)  Whether a ‘reasonable balance’ was stuck between the public interest and the interest of the Applicants?

(4)  The 4-step proportionality test was not properly considered by the Board.

92.  In her oral submissions, by casting doubt on the Board’s lack of (or insufficient) consideration (1) as to why the 155 m² of the POS is needed in the Notional Design of the Project, and (2) of Wai’s evidence on the “domino effect”, Ms Wu asserted that she would like to “test the logic” of the Board’s analysis which was done without serious comparison and was a rigid adherence to the URA’s proposal, and that the Board failed to consider all matters raised by the Applicants.

93.  The relevant paragraphs of the analysis in the Board’s Decision are as follows:

Private property rights protected by the Basic Law

…

23. Just as the Respondent party has rightly stated in the written closing submission, the Appeal Board has pointed out in its previous decisions that the protection under the Basic Law is not absolute. (See Hysan Development Co Ltd v. Town Planning Board (2016) 19 HKCFAR 372, a precedent case in the Hong Kong Court of Final Appeal, as cited in Lee Tak To & Others v Secretary for Development, Appeal Case Nos.: 1, 2, 4 & 10 of 2016). In the case of Hysan Development Co Ltd v. Town Planning Board, the Hong Kong Court of Final Appeal has already established that the property rights under the Basic Law are not absolute rights. Legally speaking, property rights may be restricted under the proportionality assessment and reasonable balance test. Most importantly, the decision-maker or the authority will be given a wide margin of discretion when formulating policies or making decisions, while such discretion should be applied based on the “manifestly without reasonable foundation” standard [see paragraphs 89 to 104.]

…

Impacts of excluding the Appellants’ properties on the entire Project

30. The Appellants alleged that the exclusion of their properties would not affect the Project. However, the Respondent submitted that the Project would be highly constrained by the exclusion of all of the Appellants’ properties (rather than any single or multiple buildings) from the Project as requested by the Appellants in the Amended Notice of Appeal.

(1) Upon due consideration, the Appeal Board accepts that various aspects such as the proposed tower, podium layout, commercial/retail portion, public open space, revitalisation of Sung Hing Lane Children’s Playground and car park would all be affected, as pointed out in the statement and supplemental made by KWAN Yee-fai, Mike.

(2) The Appeal Board also accepts that, as elaborated by the Respondent’s witness KWAN Yee-fai, Mike, the exclusion of the Appellants’ properties from the Project area would create a “domino effect”, for each part of the Project was “integral” to the overall planning of the Project and its immediate neighbourhood. The Project was given “holistic consideration”, including the planning gains for all stakeholders. As far as the car park is concerned, he explained from a professional point of view that the car park would have to be made deeper if the Appellants’ properties were excluded from the Project.

(3) On the contrary, insofar as the Appellants’ plan is concerned, no car park or parking space will be provided therein. As stated in the statement of KWAN Yee-fai, Mike, from a professional point of view and as a matter of common sense, the Appellants’ plan (in particular taking into account the so-called three storey commercial premises) might give to a demand for the loading/unloading of goods and passengers, and a design with no car parks or parking spaces would certainly have a negative impact on public roads.

(4) The Appeal Board accepts that the URA and the Respondent have considered the Project as a whole and in detail, without showing any favouritism towards No. 297 or any of the properties; and that the URA and the Respondent have taken into account the concomitant impacts of excluding the Appellants’ properties from the Project; and that the decision was not made on the basis of any one or single consideration or factor. From this follows that the exclusion of the Appellants’ properties is not a practical or feasible option.

(5) Should the Appellants’ proposal to exclude Nos. 291-293 and No. 295 be adopted, the URA would no longer have any reasonable means to redevelop No. 297, i.e., it would need to give up No. 297, and this would constitute the so-called “prefer 291-293 and 295 interests to 297”. The Appeal Board accepts that the URA and the Respondent have taken into full account the interests of all owners in arriving at the Decision; and that only by doing so can the policy decision of balancing the interests of all parties be best achieved. This is precisely the bona fide reason for adopting the “manifestly without reasonable foundation” principle as stated by the Court of Final Appeal.

94.  As can be seen in the above, the Board was considering the Applicants’ argument that the exclusion of the Subject Properties would not affect the Project, and the balance to be drawn by reference to the various potential impacts on the Project, the Applicants and all other interested parties. The balancing exercise was done by the Board in its decision-making process and the reasons were set out in the Decision.

95.  I accept the following submissions made by Mr Lok on rejecting this proportionality test ground.

96.  First, the Board was fully mindful of the proportionality test: Board’s Decision at §23. It expressly referred to Hysan and made clear that property rights may be restricted under the proportionality assessment and reasonable balance test, further amplified by the Board’s express reference to the margin of discretion. The Board in turn dealt with the various considerations across the Decision, for example rational connection (at §§30(1)-(4)), margin of discretion and reasonable balance (at §30(5)). Weighing the prospects of the chances that the Applicants’ proposed development would or would go ahead was, of course, also relevant to the balancing exercise.

97.  Secondly, the Applicants did not explain how the authorities cited in their skeleton submissions support the existence of an “Accrued Right” arising from the BA’s approval for the Applicants to build the Proposed Composite Building on the Subject Properties and/or a constitutionally protected property right. There was no explanation on how such a right (if any) should be treated by the Board, especially given the lack of any specific applicable legislative framework giving rise to such ‘right’ and/or any positive framework from the URA to such effect.

98.  Mr Lok further submitted that the Applicants’ challenge to the proposed POS or GIC in the Notional Design of the Project could not be substantiated because (1) it is a planning issue outside the scope of judicial review, and (2) the URA has explained that if the Subject Properties are excluded, there would be no GIC.

99.  Ground 6 is not reasonably arguable with any realistic prospect of success.

K.  Ground 7 – Financial strength of the URA

100.  Regarding the Applicants’ complaint that the Board accepted the URA’s financial strength without evidential basis, Ms Wu submitted that:

(1)  Financial viability is clearly a relevant consideration for planning decisions and proper assessment should be made: Capital Rich Development Ltd & Anor v Town Planning Board [2007] 2 HKLRD 155 at §55. However, the Board failed to provide adequate reason to support its finding in the Board’s Decision at §40 that the URA has “financial strength”, and “will not be influenced in any way by changes in the market or other circumstances (e.g. lack of sufficient financial strength as in the case of the Appellants)”.

(2)  There was no evidence adduced during the Appeal for the Board to assess the financial strength of the URA, which should not be a matter to be taken for granted or assumed.

(3)  The cost of resuming land is plainly a relevant consideration in assessing financial viability: Prest & Straker v Secretary of State for Wales & Anor [1983] 1 EGLR 17), and therefore it was wrong the Board to accept the URA’s claim that the question of land resumption costs is ‘academic’ for the purpose of the Appeal.

(4)  It is not uncommon for the URA to face financial challenges similar to those faced by any other private developers, and such consideration should not be disregarded or overlooked.

(5)  There was compelling evidence showing the competing financial viability of the Applicants.

101.  Mr Lok accepted that there was no evidence adduced during the Appeal for the Board to assess the URA’s financial strength, but submitted that:

(1)  The financial strength of the URA is not relevant to the intent or ability of the Applicants to redevelop the Subject Properties which was analysed at length by the Board (Board’s Decision at §§25-28).

(2)  Insofar as the Board had commented on the position of the URA (Board’s Decision at §40), this was more of an illustrative comparison to the evidential uncertainty on the Applicants’ planning and financial strength already found by the Board (Board’s Decision at §§27(1)-(3)).

(3)  The so-called finding in the Decision at §40 was merely an obiter remark. Even if an error exists, it is not “material” to justify the Court’s intervention: Cheatle v General Medical Council [2009] EWHC 645 at §28. Upon the holistic consideration of all relevant matters by the Board, it “would have reached the same conclusion” on the basis of the other considerations alone: Capital Rich Development Ltd & Anor v Town Planning Board at §77.

(4)  As to the Applicants’ suggestion of financial viability being “clearly relevant consideration for planning decisions”, each planning decision turns on its facts and context: Hostford Development Limited & Ors v Town Planning Board [2024] HKCFI 2219 at §45(2).

(5)  There is no suggestion that the Board had any ulterior motive, and as such, provided that the ultimate determination is based on planning grounds and not on some ulterior motive, and that it is not irrational, there would be no basis for holding it to be invalid in law solely on the ground that it has taken account of, and adjusted itself to, the financial realities of the overall situation: Capital Rich Development Ltd & Anor v Town Planning Board [2007] 2 HKLRD 155 at §58.

102.  As a matter of general principle, not everything mentioned in the discussion must lead to or become part of a decision-maker’s reasons in making a decision; and whether certain matters mentioned or discussed in the discussion become part of the reasons for a decision is a matter of reading and understanding them in proper context: Hostford Development Limited v Town Planning Board [2024] HKCFI 2219 at §49.

103.  On the facts of the present case as traversed above, and looking at the various aspects for consideration (including planning, development intent and ability of the Applicants, impact on the Applicants’ property rights etc.) in relation to the Project and redevelopment as set out in the Board’s Decision, there is no basis to suggest that the Board’s Decision was made solely on the basis of any material misunderstanding of the financial strength of the URA.

104.  Ground 7 is not reasonably arguable with any realistic prospect of success.

L.  Ground 8 – Apparent bias

105.  Ms Wu submitted that from the perspective of a fair-minded and impartial observer, the Board’s practices unmistakably suggest a real possibility of its pre-judgment in favour of the Project: R (Lewis) v Redcar & Cleveland BC [2009] 1 WLR 83 at §§96-97), and provided the following examples of the ‘bias’.

106.  First, the Board restricted the reception of evidence, depriving it of the ability to fully understand both sides of the arguments in the Appeal which is crucial for making an informed decision (as highlighted in Ground 1), and such restriction raises the concern about the apparent bias of the Board in evincing an intention to limit the evidence to favour the SDEV or URA.

107.  Second, the Board demonstrated a glaring inability or incompetence to distinguish between relevant and irrelevant considerations in this case (as shown in Grounds 1-2 and 4).

108.  Third, the Board repeatedly made findings or presumptions by taking matters for granted without providing any intelligible reasons (see Grounds 4-7).

109.  Fourth, the Board’s ready adoption of the SDEV’s Closing Submissions’ analysis structure and presentation, coupled with the general conduct of the proceedings as shown by the remarks to the Applicants’ Counsel, indicates a lack of impartiality and suggests that it was not unbiased.

110.  Mr Lok’s response was twofold. First, Ground 8 hinges upon the previous grounds, and reading the Board’s Decision as a whole, a fair-minded and informed observer would not conclude that there was a real possibility that the Board was biased. Second, a line is drawn between forthright and robust indications of tentative views on the point of importance in the trial and an impermissible indication of prejudgement: PCCW-HKT Telephone Ltd [2008] 2 HKLRD 282 at §§15 & 30.

111.  I have carefully reviewed the English translation of the transcript of the hearing before the Board, and the particular exchanges mentioned by Ms Wu. It may be accepted that there was occasionally some apparent tension or friction between Ms Wu and the Chairman of the Board. Reading it, that seems to have been born of (1) Ms Wu seeking to ensure that she felt she had done her duty in advancing her clients’ case as far as she wished to, and (2) the Chairman exercising a degree of case or hearing management control (at times robust guidance) to deal with matters in a way which focused on the centrally relevant, without unnecessary repetition or questions in witness examination the answer to which could never be of much help to the Board’s ultimate decision-making process. The Chairman emphasized that, on the basis that it was agreed that the relevant evidence was that going to the points framed by the ANOA, all which the Board would review, it does not matter which parties overlooked or made mistakes in the past.

112.  With respect to Ms Wu, there was some degree of repetition, and questions were asked which the Board might fairly have thought were unlikely to provide assistance to it in its proper consideration of the issues framed by the ANOA. There is nothing inherently wrong in the Board’s Chairman testing whether evidence is within the scope of the matters to be determined and directing an efficient approach at a hearing. In any event, it seems to me that Ms Wu was fully given a fair opportunity to present the Applicants’ case, both in the witness evidence and in submission.

113.  I do not think the matters relied on identify any reasonable argument that there was any pre-determination of the Appeal, or that there was the appearance of bias.

114.  In any event, I further agree with Mr Lok that Ground 8 also relies upon a compilation of the earlier Grounds as put forward by the Applicants. Those earlier Grounds have been dismissed.

115.  Ground 8 is not reasonably arguable with any realistic prospect of success.

M.  Ground 9 – Irrationality or Wednesbury unreasonableness

116.  Regarding the Applicants’ complaint about the Board’s Decision being irrational, the only oral submissions made by Ms Wu were that the Board (1) committed an error contrary to section 24(4) of the URAO, and (2) accepted the evidence of Kwan in entirety when there was a lack of evidential basis, which was Wednesbury unreasonable.

117.  This Ground again apparently hinges upon Grounds 1 to 8. I have dealt with the question of irrationality in the above context as well. But looking at the question of irrationality separately, it is trite that that it is a high hurdle to cross. Stepping back and considering matters overall, I see no reasonably arguable irrationality with any realistic prospect of success. Ground 9 is also rejected.

N.  Board’s Costs Decision

118.  As Grounds 1 to 9 have been dismissed, it would not be necessary for me to separately deal with the Applicants’ challenge to the Board’s Costs Decision.

119.  I accept Mr Lok’s submissions that the Applicants’ attack on the Board’s discretionary Costs Decision mainly hinges upon the above Grounds, and also concerns the Board’s decision on the Applicants’ management of their witness which is clearly within the Board’s purview: section 28(14)(c) of the URAO.

120.  I see no reasonably arguable basis to interfere with the Costs Decision.

O.  Result

121.  None of the Grounds as put forward by the Applicants are reasonably arguable with any realistic prospect of success. In the circumstances, the Applicants’ application for leave to apply for judicial review is dismissed.

122.  At present, I see no reason why costs should not follow the event. Therefore, I order the Interested Parties’ costs to be paid by the Applicants, to be taxed if not agreed. However, as I have not heard argument on the question of costs, I make that order in the first instance on a nisi basis. The costs order nisi will become absolute after 14 days if no application for variation is issued. Any such application for variation will be dealt with on paper.