MA WAN FARMING LTD v. THE GOVERNOR IN COUNCIL AND ANOTHER

Headnote

[(1) The requirement in section 5(b) of the Roads (Works, Use and Compensation) Ordinance (Cap. 370)("the Ordinance") for a scheme for road works to be annexed to the plans to which it relates applies not merely to the time at which the scheme and the plans are prepared, but also to (a) the time at which they are deposited in the Land Registry, and (b) the time during which they are available for inspection by the public pursuant to section 8(1) of the Ordinance.

(2) Art. 10 of the Bill of Rights does not apply to the consideration, pursuant to section 11(2) of the Ordinance, by the Chief Executive in Council of objections to road works proposed by the Secretary for Transport.]

1997 A.L. No. 4

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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THE FACTS

1. Ma Wan Island lies between Tsing Yi and Lantau. The main road to the new airport at Chek Lap Kok crosses it. In August 1994, Sun Hung Kai Real Estate Agency Ltd. ("the developer") announced plans for a major development on the island, consisting of a theme park, a residential estate and a new village for the indigenous inhabitants of Ma Wan who the development would displace. The development has the support of the Government.

2. The Applicant, Ma Wan Farming Ltd. ("the company), owns land on Ma Wan. Some of it is situated within the proposed theme park. If the development proceeds as planned, some of the company's land will have to be acquired for an emergency access road to the theme park, and other parts of the land will have to be acquired for a road linking the residential estate and the new village. Negotiations have been continuing for some time between the company and the developer about the terms on which the developer should acquire the land which it needs from the company. In the course of the negotiations, the developer stated that if no agreement could be reached, the developer would invite the Government to resume the land. If that happens, the compensation payable to the company will be much less than that on offer from the developer. No agreement has yet been reached.

3. In April 1995, the Secretary for Transport announced proposals for road works on Ma Wan in connection with the development. Those proposals included proposals for resuming some of the company's land. In June 1995, the company's surveyors lodged an objection to the proposals on behalf of the company. In January 1996, the company's solicitors supplemented that objection with a number of particulars. Eventually, the Secretary for Transport's proposals, and the company's objection to them, were considered by the Governor in Council (as he then was). He decided to authorize the road works without modification. The Secretary for Transport informed the company of that decision on 3rd December 1996, and the decision was gazetted on 6th December 1996. That is the decision which the company now challenges on this application for judicial review.

THE STATUTORY PROVISIONS

4. The relevant Ordinance is the Roads (Works, Use and Compensation) Ordinance (Cap. 370). All references in this judgment to sections of an ordinance are to sections of that Ordinance unless otherwise stated. Section 5 provides that where the Secretary for Transport proposes to carry out major road works, he has to have prepared

"(a) a plan delineating the works area, being that area within which land may be resumed..., and

(b) a scheme, annexed to the plan, in which he shall [describe various features of the proposals.]"

Section 8 provides for how members of the public should be made aware of the contents of these documents. Section 8(1) provides:

"A copy of the plan and scheme prepared for the purposes of section 5..., signed by the Secretary [for Transport], shall be deposited in the Land Registry and shall be available for inspection by the public free of charge at such offices of the Government as the Secretary [for Transport] may direct, during the hours when those offices are normally open to in the public."

Sections 8(2) and 8(3) require the Secretary for Transport to cause a notice of such deposit to be published in the Gazette. Section 8(5) provides:

"A copy of the plan and scheme shall be supplied to any person on application and payment of the reasonable cost of producing that copy."

Section 10 sets out the procedure for objecting to road works proposed by the Secretary for Transport, and section 11(2) provides:

"When the time for the lodging of objections has expired and where any objection has been lodged under section 10, the Governor in Council shall consider the plan and scheme and the objections and may -

(a) decline to authorize the works and the use; or

(b) authorize the works and the use, with or without any modification and subject to such conditions, as to the amelioration or avoidance of the effects of works and the use or otherwise, as the Governor in Council thinks fit."

The decision challenged in these proceedings was made under section 11(2).

COMPLIANCE WITH THE REQUIREMENTS

5. Notice of the Secretary for Transport's proposals was published in the Gazette in April 1995. The evidence of the company's representatives is that they went to the District Office in Central (which was one of the three offices referred to in the notice in the Gazette) to inspect the plans on two occasions in 1995. On the first occasion early in June, they asked for all the documents referred to in the notice in the Gazette. They were only provided with the plans. The scheme was not annexed to them. They asked for copies of the plans, but they were told that no copies were available. On another occasion towards the end of July, they began to take photographs of the plans, but they were forbidden to continue. In addition, their evidence is that on one occasion in 1997, they were told by the District Lands Office in Tsuen Wan (which was one of the other offices referred to in the notice in the Gazette) that the scheme was not annexed to the plans which had been deposited there. Accordingly, the company's case is that

(a) the scheme was not annexed to the plans (contrary to section 5(b));

(b) although the scheme may have been deposited in the Land Registry, it was not available for inspection at the various district offices referred to in the notice in the Gazette (contrary to section 8(1)); and

(c) its request to be supplied with copies of the plans was not met (contrary to section 8(5)).

6. The evidence filed on behalf of the Secretary for Transport is that the scheme was originally annexed to the plans when they were deposited in the Land Registry. When copies of them were supplied to the various district offices referred to in the notice in the Gazette, the copies of the scheme were separated from the plans, because the plans were comparatively large, and it was easier for them to be handled if they were kept separate from the scheme. If the company's representatives had wanted to inspect the scheme, all they had to do was ask: if they had, a copy of the scheme would have been made available for them to inspect.

7. Mr. Philip Dykes S.C. for the Respondents argued that section 5(b) only required the scheme to be annexed to the plans when it was prepared. It did not require the scheme still to be annexed to the plans when the plans and the scheme were deposited in the Land Registry, nor when they were made available for inspection by the public at the district offices. In other words, it was permissible for the plans and the scheme to have been physically separated from each other by then, so long as (a) they had both been deposited in the Land Registry, and (b) they were both available for inspection by the public at the offices to which copies of them had been sent.

8. I cannot accept this argument. The Secretary for Transport's obligation was not merely to cause the scheme to be prepared, but also to cause it to be annexed to any plans to which it related. Why was that thought to be necessary? The answer can only have been to ensure that the plans would not be inspected without there being an opportunity for the scheme (which was designed to explain the plans) to be inspected at the same time. That aim would be frustrated if they were physically separated subsequently. Accordingly, section 5(b) was infringed when they were separated. That separation would only be a technical breach of section 5(b) if there was a fool-proof system in place to ensure that the plans could not be inspected without the scheme being available for inspection at the same time. But such a scheme was not in place (or if it was in place, the scheme was not a fool-proof one) when the company's representatives asked for all the documents referred to in the notice in the Gazette, because the only documents which were supplied to them for inspection were the plans. I appreciate that the claim that the company's representatives asked for all the documents referred to in the notice in the Gazette is easy to make and difficult to refute, but the district offices referred to in the notice in the Gazette have only themselves to blame in the light of their practice of separating the scheme from the plans.

9. However, the fact that the scheme had been separated from the plans did not mean that the scheme was not available for inspection at the offices referred to in the notice in the Gazette. In fact, the scheme was available for inspection there. The scheme would have been shown to the company's representatives if they had specifically asked for it. The problem was that it was not specifically asked for. There is no evidence as to why it was not specifically asked for, but I can assume why that was. The company's representatives, having asked to inspect all the documents referred to in the notice in the Gazette, and having been supplied with only the plans, simply assumed that the scheme (if there was one) was not available for inspection. They ought perhaps to have asked where the scheme was. After all, the notice in the Gazette had said that the plans and the scheme were available for inspection. But it is easy to be wise after the event. The fact of the matter is that the scheme was available for inspection (with the result that there was no infringement of section 8(1)), but the company's representatives were unfortunately led to believe that it was not.

10. Finally, I turn to the complaint that the request to be supplied with copies of the plans was not met. What the company's representatives claim they were told - "that no copies [of the plans] were available" - is ambiguous. It could have meant that they were not available at the district office at which the request was made, i.e. they were available at another of the offices referred to in the notice in the Gazette. Alternatively, it could have meant that they were not available at that time - for example, because the plans were technical drawings, and the office needed notice to set up the equipment to enable them to be reproduced. It is possible, I suppose, that it could have meant that they were not available at all, i.e. that as a matter of policy copies of them were not provided, but I doubt whether that was what was meant because there is no immediately apparent reason why there should be a policy so obviously contrary to the requirements of section 8(5). Accordingly, the company's representatives were in fact being told - on the only occasion, be it noted, that they requested copies of the plans - simply that copies were not available at that time at that office. I do not regard the unavailability of copies of the plans at a particular office at a particular time as amounting to an infringement of the duty to supply copies of the plans to the company's representatives on application if copies of the plans could have been supplied at another time or at another office. After all, section 8(5) did not require the request for the supply of copies to be fulfilled immediately or at a particular place.

11. However, the failure to keep the scheme annexed to the plans, and the not unreasonable assumption on the part of the company's representatives that the scheme was not available for inspection at the offices referred to in the notice in the Gazette, do not entitle the company to the relief which it seeks. I say that for two reasons. First, if the company's representatives had really thought that they needed to inspect the scheme in order to lodge an informed and meaningful objection to the Secretary for Transport's proposals, they should have done much more than they did. At the very least, they should have complained to the Transport Branch that they were not in a position to lodge an informed objection because they had not been able to inspect the scheme. If they had done that, they would have been told that they could inspect the scheme now that they had made it clear that they wanted to inspect the scheme as well as the plans. Secondly, if the company's representatives had had an opportunity to inspect the scheme, the objection which they would have lodged would have been no different from the objection which they in fact lodged, and the decision of the Governor in Council would therefore have been the same. I say that because having now seen the scheme, the company does not contend that the terms of the scheme would have affected the objection which was lodged.

THE DIFFERENCE IN THE PLANS

12. Several weeks after being told at the District Office that copies of the plans were not available, the company's surveyors were provided with what purported to be copies of the plans by the developer. That may have been why the company did not press the District Office or the Transport Branch for copies of them. Unfortunately, there was a difference between the copies of the plans which were supplied to them by the developer ("the developer's plans") and the plans which the Secretary for Transport had originally caused to be prepared ("the official plans").

13. The difference related to some footpaths. The developer's plans showed that it was proposed that the footpaths be closed permanently. The official plans showed that the only part of the footpaths which it was proposed should be closed permanently were those parts which came within the area of the proposed road works. The company's case is that had it appreciated what the proposals really were, it would have suggested in its objection that a particular road which was proposed to be built should be re-routed along the route of those footpaths. This ground of challenge was not referred to in the Notice of Application, because the difference between the two sets of plans only came to light after leave to apply for judicial review of the decision of the Governor in Council had been granted.

14. I am prepared to assume that, by not being provided with copies of the official plans, and by only being provided with copies of the developer's plans, the company was misled as to what the true proposals for the footpaths were. There is no evidence before me as to how the difference arose. The likelihood, I suppose, is that the plans were altered by the developer rather than by officers in the Transport Branch, but I am not prepared to make that assumption without evidence. However, I completely fail to see how that would, or could, have affected the company's ability to propose a new route for the road. Whether the footpaths were to be permanently closed or not, it was at all times open to the company to suggest in the objection which it lodged that the road could be re-routed along the route of the existing footpaths. The intention to close part or the whole of the footpaths could have made no difference whatsoever. When I put that point to Mr. Martin Lee S.C. for the company in the course of argument, Mr. Lee did not have an answer to it. In any event, the argument presupposes that copies of the official plans were not available to the company on application. I have found that that was not the case. Accordingly, this new ground of challenge to the decision of the Governor in Council cannot be sustained.

ART. 10 OF THE BILL OF RIGHTS

15. Art. 10 of the Bill of Rights provides, so far as is directly material:

"In the determination... of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

The company contends that Art. 10 applied to the administrative process provided for by section 11(2). Since there was no hearing, let alone a public one, before the Governor in Council, and since the Governor in Council could not be said to be independent of the Secretary for Transport, it is said that Art. 10 was infringed.

16. It is common ground that the decision of the Governor in Council to authorize the road works without modification affected the property rights of the company, because the effect of the decision was to give him the power under section 13(1) to resume that part of the company's land to which the Secretary for Transport's proposals had related. However, what Mr. Dykes contends is that the decision of the Governor in Council was not made "in a suit at law", and that it did not amount to "the determination" of the company's property rights. Accordingly, he contends that the right to a hearing of the kind provided for by Art. 10 did not arise.

17. If the issue had not been covered by authority, and if the jurisprudence on similar provisions in various international instruments had not been cited to me, I would have construed the phrase "a suit at law" as meaning "legal proceedings in a court or tribunal". The phrase "a suit at law" derives its meaning from its context. That context can be seen by looking at Art. 10 as a whole. It reads:

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

To my mind, Art. 10 is dealing with hearings before courts and tribunals. The references to "courts", "the courts and tribunals", "the court" and "a trial" do not lie easily with any other construction. What Art. 10 does is to describe the attributes which hearings in courts and tribunals should possess. The hearings must take place in public (subject to the limited exceptions which Art. 10 identifies), they must be conducted fairly, and the courts and tribunals themselves must be competent, independent and impartial. The use of the term "judgment" to describe the nature of the decision eventually rendered strongly suggests that legal proceedings are contemplated. Indeed, I would have construed Art. 10, not as creating a right to a hearing by a court or tribunal where one had not existed before, but as laying down certain minimum standards of equality, openness and fairness which should apply to such hearings as take place before courts or tribunals.

18. However, this view has not found favour with the Court of Appeal. In Kwan Kwong Co. Ltd. v. The Town Planning Board (1996) 6 HKPLR 237, Litton V.-P. (as he then was) said at p.252E-F:

"The Solicitor General rightly concedes before us that the judge had adopted too narrow a construction of the expression 'suit at law' in Art. 10 by equating it with a 'legal proceeding in a court of law'. Plainly, it is wider than that..."

No reasons were give for rejecting the judge's view - understandably enough in the light of the Solicitor-General's concession - but it is plain that I cannot give effect to what at first blush seemed to me to be the proper construction of the phrase "a suit at law".

19. In the Kwan Kwong case, the Court of Appeal had to decide whether Art. 10 applied to the consideration by the Town Planning Board ("the Board"), pursuant to section 6(6) of the Town Planning Ordinance (Cap.131)("the TPO"), of objections to draft plans prepared by the Board. In deciding that issue, the Court, in an uncharacteristic display of judicial reticence, did not attempt to give an exhaustive definition of the phrase "a suit at law". Instead, the members of the Court were content to say that the consideration of objections by the Board under section 6(6) did not amount to "a suit at law". Litton V.-P. said at p.252E-F that "the expression 'suit at law' ... is ... not so wide as to embrace the administrative process under section 6(6)". Godfrey J.A. said at pp.258I-259A:

"I would find it quite impossible ... to hold that the proceedings before the Board, when it meets to consider an objection to an Outline Zoning Plan, can properly be characterised as a 'suit at law', even giving that phrase ... the most generous possible interpretation."

20. In my view, these expressions of opinion about the non-applicability of Art. 10 to the administrative process under section 6(6) of the TPO effectively decides whether Art. 10 has been engaged in the present case. That is because I see no relevant distinction between the Board's consideration of objections to its draft plans and the Governor in Council's consideration under section 11(2) of objections to road works proposed by the Secretary for Transport. Mr. Lee argues that the true reason why the consideration of objections under section 6(6) of the TPO does not attract Art. 10 is because the consideration of objections is simply a step in the consultative process which ultimately results in the Governor in Council deciding whether to approve draft plans, whether to refuse to approve them, or whether to refer them back to the Board for further consideration and amendment. That is to be contrasted, says Mr. Lee, with the Governor in Council's consideration under section 11(2) of objections to road works proposed by the Secretary for Transport. His consideration of the objection is not simply a step in the consultative process. It is the final determination of the objection, and in the process he decides whether to authorize the road works, and if so, on what conditions and subject to what modifications.

21. I see, of course, how it could be said that the Governor in Council's consideration under section 11(2) finally determines whether land is to be resumed, and therefore finally determines a person's property rights, whereas the Board's consideration under section 6(6) of the TPO does not finally determine the objection to the draft plans. But that distinction only goes to whether the administrative process determines rights, which is the second of the two issues I have to decide on the application of Art. 10. The distinction which Mr. Lee draws does not address at all the question whether the determination is made in a suit at law. That these are entirely different questions is apparent from the judgments of Litton V.-P. and Godfrey J.A. in the Kwan Kwong case: see p.252B-E (in the judgment of Litton V.-P.) and the passages at pp.258C-D and 258I-259A (in the judgment of Godfrey J.A.). Since the Court of Appeal has held that the administrative process under section 6(6) of the TPO is not a suit at law, and since the only distinction between the two administrative processes provided for by section 6(6) of the TPO and section 11(2) relates to the nature of the determination, rather than the forum in which the objection is resolved, there is no basis for asserting that the administrative process under section 11(2) is a suit at law. If I were to assert that it was, I would either be failing to abide loyally by the decision of the Court of Appeal in the Kwan Kwong case, or be distinguishing between the two administrative processes on a basis which I do not regard as either legitimate or justifiable.

22. For these reasons, I conclude that Art. 10 is not engaged in the present case. It is therefore unnecessary for me to consider the interesting and wide-ranging arguments on the topic on which I have been addressed, and the many absorbing cases to which I have been referred. The simple fact is that I regard the application of Art. 10 to the Governor in Council's consideration of objections to road works proposed by the Secretary for Transport as effectively having been decided by what the Court of Appeal decided in the Kwan Kwong case by which I am bound.

PROCEDURAL UNFAIRNESS

23. I have already dealt with the company's argument that its inability to inspect the scheme, and its reliance on the developer's plans, meant that it had not been provided with sufficient information to enable it to lodge a meaningful objection to the Secretary for Transport's proposals. However, a further allegation of procedural unfairness is made. The company was not provided with copies of the documents placed before the Governor in Council. It did not even know what documents had been placed before the Governor in Council, or what the Governor in Council had been told. It had therefore been denied an opportunity to comment on any oral or written representations made to the Governor in Council by or on behalf of the Secretary for Transport.

24. After Mr. Lee had developed that argument, I was supplied with copies of the briefing document for the Executive Council. That document, together with the annexes to it, constituted the materials on the basis of which the Governor in Council made his decision under section 11(2). The annexes consisted of documents which the company's representatives had either seen before, or which contained information with which they were familiar, or which related to the objections of other objectors. In those circumstances, Mr. Lee did not assert that there was anything in the annexes upon which the company would have wished to comment.

25. As for the briefing document, I have read it with care. It deals with the company's objection in neutral terms. It describes the nature of the objection, and summarizes the correspondence between the company's representatives and the District Lands Office in Tsuen Wan in connection with that objection. I cannot see anything in the briefing document upon which the company would have wished to comment which it had not already had an opportunity to comment on before. That is not surprising. The principal thrust of the objection had not been on transport grounds. Its objection had been on the basis that the proposals for resuming the company's land had not been bona fide: the proposals had been made "to enhance the bargaining position of the developer". There were no transport considerations to address. It follows that the allegation of procedural unfairness must fail. There was nothing in the materials placed before the Governor in Council on which the company could usefully have commented but which it could not have commented on before.

CONCLUSION

26. For these reasons, this application for judicial review must be dismissed. However, that is not necessarily the end of the road for the company. I do not discern anything to prevent it from suggesting to the Secretary for Transport that the road in question be re-routed along the route of the existing footpaths. No doubt, if the Secretary for Transport thinks that that suggestion should be adopted, and if it has not now become impracticable to do so for one reason or another, he will request the Chief Executive in Council, pursuant to section 11(5), to amend the plans and the scheme, and to authorise the road works in accordance with that amended plan and scheme.