INTERNATIONAL TRADER LTD v. TOWN PLANNING APPEAL BOARD

HCAL 13/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 13 OF 2007

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J U D G M E N T

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1.   On 15 November 2007, this Court handed down a decision on this judicial review application.  Pursuant to the Court’s judgment, an Order of the Court of the same date was made.  Amongst other things, the Court quashed, by way of certiorari, the Town Planning Appeal Board’s decision in Town Planning Appeal Case No 5 of 2005.

2.   Furthermore, the Court issued an order of mandamus in the following terms:

“	The respondent do and is hereby commanded to allow the applicant’s appeal in Town Planning Appeal Case No 5 of 2005 to the extent of granting relaxation in terms of option 6a of the development proposals as referred to in the respondent’s decision dated 12 December 2006”.

3.   By the time the Court handed down its judgment and made the Order, the Court was aware that the Chairman of the particular Appeal Board which heard the appeal was no longer the Chairman or even a member of the Appeal Board Panel, his term of appointment having expired.  The Court referred to this briefly in paragraph 139 of the judgment.

4.   For the reasons set out in that paragraph, the Court was of the view that an order of mandamus should issue to require the Appeal Board to allow the relevant appeal.  The Court said so in terms in paragraph 139.  As eventually worded in the Order, the order of mandamus requires the respondent to allow the second appeal in the limited way already described.

5.   Doubts have since arisen as to whether the Court is requiring the Appeal Board as originally constituted to be reconvened and to decide the appeal by allowing the appeal in the way indicated, or whether a reconstituted or reappointed Appeal Board should hear the outstanding appeal and decide the appeal in accordance with the order of mandamus.  Put another way, there is uncertainty as to whether the Court is directing such a reconstituted or reappointed Appeal Board to decide the outstanding appeal in the way described in the relevant order of mandamus.

6.   Furthermore, doubts have been expressed as to whether the Chairman of the Appeal Board Panel formed under section 17A of the Town Planning Ordinance, Cap 131, has the power or obligation under the circumstances of the present case to reconvene a reconstituted or reappointed Appeal Board to hear the appeal, it having been noted, amongst other things, that neither the Chairman nor the Appeal Board Panel is a respondent or even an interested party to these proceedings.

7.   After the exchange of several rounds of correspondence between the relevant parties, including those representing the Appeal Board Panel and its Chairman, the applicant decided to take out a summons returnable before this Court asking the Court, effectively, to make a further order of mandamus against the Panel or the Chairman of the Panel, commanding her to appoint another Appeal Board to hear its outstanding appeal, with the intention that the new Appeal Board will, in compliance with the order of mandamus already made by the Court, allow the appeal in the way described in the order of mandamus.

8.   The Appeal Board Panel and its Chairman are represented before the Court at today’s hearing by Mr Joseph Fok SC.  Through leading counsel, the Chairman has expressed that she has no objection to a direction from the Court requiring her to make the necessary appointment for a new Appeal Board to hear the matter.  Quite obviously, the Chairman has her own concerns and doubts regarding her power or “obligation”, as Mr Fok has put it, to make the appointment, and wishes to have the comfort of a court order or direction before doing so.

9.   The Court approaches the matter this way.  The Court has already decided on the substantive matters between the parties in accordance with the notice of motion and the form 86A.  A final order has been made by the Court which is on appeal to the Court of Appeal.  The Court of Appeal is yet to hear the appeal.

10.   The Court is functus in relation to the disputes between the parties.  The only remaining jurisdiction of this Court is in relation to the carrying out of the Order that it has already made.

11.   It is trite that an appeal to the Court of Appeal from a judgment or order made by the Court of First Instance does not automatically stay the order under appeal.  Thus far there is no application for a stay of execution.

12.   In those circumstances, the Order that has been made by the Court, including the order of mandamus, is still in full force and must be complied with by those to whom the Order is directed.

13.   Therefore, I can see the perfectly understandable need to seek clarification regarding the order of mandamus given the circumstances I have described so that the position is clear as to who should comply with the order of mandamus.

14.   I hope it is by now clear that the intention of the Court throughout, and it has remained unchanged, is that the Appeal Board that is seized of the determination of the appeal in question, ie Town Planning Appeal Case No 5 of 2005, shall determine the appeal by allowing it in the limited way described in the order of mandamus.

15.   As I said, the Court was fully aware that at least the Chairman chairing the particular Appeal Board that eventually made the decision under challenge was no longer the Chairman or even a member of the Appeal Board Panel.

16.   The Court, in issuing the order of mandamus, has proceeded on the assumption that a reconstituted or reappointed Appeal Board will be there to hear the outstanding appeal following the quashing of the original decision made by the original Appeal Board, and the Court, with a view to, amongst other things, sparing the members and the Chairman of the new Appeal Board the effort or perhaps the agony of going through the papers and arguments again, has decided to make the order of mandamus because, at least in its own view, there can only be one lawful outcome in the appeal.

17.   In relation to this last point, that is a subject of debate to be ventilated in the Court of Appeal, but in terms of the Court’s intention, the order of mandamus is intended to be complied with by the Appeal Board, whatever its new membership may be, which is seized of the determination of the outstanding appeal.  As I said, the Court has proceeded on the assumption that such an Appeal Board will be constituted in due course, and the only person who has the power to make the appointment is the Chairman of the Appeal Board Panel as provided under section 17A of the Ordinance.

18.   As I note, neither the Chairman nor her panel is a party to these proceedings; therefore there is no question at this late stage of the Court making any order of mandamus against her or her panel regarding what she should do in relation to the appointment of a new Appeal Board.  If nothing else, that is not a subject matter covered by the notice of motion or the form 86A, nor was it a matter raised at the hearing.

19.   As I have said, the Court is really functus save for the carrying out of the Order it has made.

20.   In relation to the making of directions instead of an order of mandamus to the Chairman regarding the appointment, I really do not see any real difference between the two, but a more fundamental objection to the course is this.  The issue of any such direction would require the Court to determine whether the apprehension on the part of some parties that the Chairman might lack the necessary power or obligation in the present circumstances to make the appointment is well-founded or not, which is something not raised in the form 86A or the notice of motion, nor is it a subject matter of litigation between the parties.

21.   Needless to say, I find it wrong for the Court to make any pronouncement on this subject matter, particularly bearing in mind the stage this Court finds itself in in terms of the proceedings in question.

22.   In short, it must be a matter for the Chairman to make up her mind as to whether she has the power and obligation under the circumstances, particularly in view of the order of mandamus — as the Court has just clarified, to make the appointment.  If she takes the view that there is no power or obligation under the circumstances of the case to make the appointment, she must not do so, even if the Court were to give such a direction, because the Court would be giving a direction with no proper jurisdictional basis.

23.   On the other hand, if she does have the power and obligation under the circumstances of the present case to make the appointment, she does not need, nor is she entitled to, any comfort from the Court in terms of a direction before complying with her obligation to make the appointment.

24.   Thus analysed, I see no basis for the Court making any direction to the Chairman in the present case.

25.   I have been very careful in this judgment of mine not to be drawn into the disputes or doubts regarding whether the Chairman has the power or obligation under the present circumstances to make the appointment, although, as I have said, the Court has proceeded on the assumption that she does have the power and obligation to do so when it made the order of mandamus.  Whether the Court’s assumption should prove to be correct or not is not a matter before this Court now.

26.   As I say, at least for the Chairman herself, she must make up her own mind, no doubt after taking good advice on the matter.  Needless to say, whatever decision she might eventually make or not make might be challenged by those affected in an appropriate manner, but again that is not a matter that concerns this Court.

27.   Mr Mok and those instructing him have raised at the eleventh hour a potentially important matter, namely that in fact the terms of appointment of the then Chairman of the Appeal Board, who was also the then Chairman of the Appeal Board Panel, as well as another member who sat on the original Appeal Board, had actually expired prior to the rendering by the Appeal Board of the relevant decision under challenge which I have, by my Order, quashed.  That raises, so Mr Mok SC, appearing for the Town Planning Board, has submitted, the question of whether the decision of the Town Planning Appeal Board under challenge was in the first place a nullity, and that raises, leading counsel has also submitted, the further question of whether, in such event, what this Court in these judicial review proceedings could legitimately do was simply to pronounce that the purported decision was a nullity but not to go into the merits of the decision.

28.   To be fair, Mr Mok has accepted that all these may perhaps be matters to be raised before the Court of Appeal, they having not been realised by anyone and therefore not raised at all before this Court previously.  But Mr Mok has taken his point further by submitting that in those circumstances, the Court, having been apprised of the possible difficulty arising from the matter, should refrain from doing anything further in relation to these proceedings.  In short, what has happened has happened, and only the Court of Appeal can do anything about it.  But so far as this Court is concerned, it can refrain from having anything further to do with this case by way of substantive order or directions in view of the possibility that the decision below or the decision under challenge was a nullity after all.

29.   I fully appreciate counsel’s arguments, but to be fair, Mr Mok has not been so confident about all these points that he has raised as to suggest that this Court definitely has no jurisdiction whatsoever to deal with the matter any further having learned that the decision below is a (possible) nullity, and in this regard, again Mr Mok has not gone so far as to say that the decision under challenge is definitely a nullity.  All he is saying is that there is a possibility that everything is a nullity and the Court can do nothing about it in these proceedings apart from pronouncing that the decision in question is a nullity.

30.   That being the case, and the position being that it is not for this Court to pronounce on this very fine and, one might say, technical point, particularly bearing in mind that Mr Yu SC, for the applicant, has put forward counter arguments, it is really more a question of discretion than jurisdiction.  But more importantly, in my view, even assuming that Mr Mok’s apprehension is right, the Court having made an Order and there having arisen some doubts or uncertainties regarding the intent and scope of that Order, and there being undoubted jurisdiction on the part of the Court to clarify its own Order for the purposes of carrying it out into effect, I am of the view that it is really incumbent on the Court to make the necessary clarification.  I do not regard that as making any further order or direction on the substantive matter, even assuming that Mr Mok is correct that in the case of nullity the Court should not deal with the matter on its substantive merits.  And I hope by now it must be clear that I have considered the doubts that have arisen to be reasonable doubts and, for the sake of clarity and certainty, clarification is indeed required to be made by this Court regarding the order of mandamus.

31.   So for those reasons, notwithstanding Mr Mok’s very interesting arguments which are of a very serious nature – I must emphasise, the Court does find it necessary to make clarification.  But further than that, for all the reasons that the Court has attempted to give immediately at the conclusion of today’s hearing given the delay that has been experienced in the present case, the Court is not prepared to go whether in terms of the order of mandamus sought in the summons or in terms of the directions suggested during argument or otherwise.

32.  So by way of clarification of paragraph 3 of the Order made on 15 November 2007: the Town Planning Appeal Board for the time being seized of the determination of Town Planning Appeal Case No 5 of 2005 do and is hereby commanded to allow the applicant’s appeal in that particular appeal to the extent of granting relaxation in terms of option 6a of the development proposals as referred to in the respondent’s decision dated 12 December 2006.

33.  I emphasise that what I have just said is not a fresh or further order of mandamus.  It is merely a clarification of the order of mandamus already made in paragraph 3 of the Order dated 15 November 2007.

34.   I am not minded to make any order directed to the Appeal Board Panel or the Chairman.  As I have indicated during argument, I am not even sure if I have the jurisdiction to do so, the Chairman and the Appeal Board not being formally a party to these proceedings.  So I am not making any order directed to the Appeal Board Panel and Chairman.

35.   So far as the costs as between the applicant and the Town Planning Board are concerned, I think my preliminary view is that all these matters are reasonable matters that both sides or all parties have very reasonably thrashed out amongst themselves firstly by way of correspondence, no doubt the intention being that if the parties can, after reading the other side’s letters, come to an agreement, no court hearing will be required; but that having failed, the parties have thrashed out all their arguments, concerns and doubts before this Court.

36.   Both sides have behaved in a reasonable and responsible manner, and for the avoidance of any possible doubt there is no suggestion whatsoever, and in any event the Court does not subscribe to any, that any of these have been done with an ulterior motive of obstructing, delaying or frustrating the carrying out of the Court’s Order or, to put it bluntly, to obtain a stay of execution of the Court’s Order, which is under appeal, through a back door.  There is no such suggestion whatsoever, and the Court does not subscribe to any.

37.   Having said all that, the costs that have been incurred, in my preliminary view, should form the costs of the applicant as well as the costs of the Town Planning Board for the purposes of these proceedings and they must fall to be decided in accordance with the cause.  Thus far, I have determined the cause in favour of the applicant, so prima facie these costs should form part of the costs of the proceedings and be recoverable by the applicant against the Town Planning Board as per the costs order that I have already made or the rationale behind the costs order that I have already made.  But everything, including my costs order, is under appeal, so depending on the outcome of the appeal, there may or may not be any change as to the incidence of the costs of the proceedings.

38.   I hope the parties would see the good sense of that course, and if the parties are agreeable to that course or are in agreement with the reasoning that I have just outlined, then I would make an order that the relevant costs be regarded as part of the costs of the proceedings and be paid by the interested party to the applicant to be taxed if not agreed.

39.   For the avoidance of doubt, I would give a certificate for two counsel, for what it might be worth.

[Submissions on costs]

40.   I have, for the reasons that I have given, explained why I am not minded to issue any order of mandamus or give any directions directed to the Chairman or the Appeal Board Panel.  On the other hand, as I have explained, there has been a need to seek clarification, and clarification has been made.  So to the extent that costs have to be incurred to obtain the clarification, they should form part of the costs of the proceedings and be borne by the Town Planning Board, subject of course to the outstanding appeal.

41.   But to the extent that the applicant seeks a further order of mandamus or directions from the Court vis-à-vis the Chairman or the Appeal Board Panel, which has proven to be unsuccessful, I do not see why the Town Planning Board should be made responsible for the same.  Whether the applicant can get redress elsewhere for the costs it has expended on that part of the application before the Court today is not a matter that concerns me.

42.   So, adopting a broad-brush approach regarding the respective costs that have been expended on the two matters that I have just described, I would apportion 50/50 the costs incurred in relation to each of them.  In other words, I would order that 50% of the relevant costs be regarded as part of the costs of these proceedings and be paid by the interested party to the applicant to be taxed if not agreed.

43.   (1) As between the applicant and the interested party, 50% of the relevant costs be regarded as part of the costs of the proceedings and be paid by the interested party to the applicant to be taxed if not agreed.  No order as to costs as regards the remaining 50% thereof. 

44.   (2) As between the Appeal Board Panel, including its Chairman on the one hand and the applicant and/or interested party on the other, no order as to costs.

45.   For what it may be worth, subject to any contrary submission, I give a certificate for two counsel.