CHAN KAI WAH v. HKSAR

CACV 126/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 126 OF 2010

(ON APPEAL FROM HCAL NO. 40 OF 2010)

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Hon Hartmann JA:

Introduction

1.  This is an appeal against a refusal by Reyes J to grant leave to apply for judicial review.

2.  By notice of application dated 14 April 2010, the appellant sought leave to judicially review a decision of the Finance Committee of the Legislative Council which had been made some three months earlier on 16 January 2010. In terms of that decision, the Finance Committee had voted to approve funding for a major infrastructure project, namely, a high-speed rail link between Hong Kong and Guangzhou.  The details of the project presented to the Committee sited the Hong Kong terminus of the high-speed rail link in the area presently known as the West Kowloon Reclamation Area.

3.  On 19 May 2010, in an oral hearing, the appellant was given the opportunity to make submissions in support of his application.  In a judgment dated 26 May 2010, the judge below refused leave.  As we have said, the appellant now seeks to appeal that refusal.

Background

4.  Before looking to the relevant background, it must be observed that, as this is an appeal against a refusal to grant an application for leave to apply for judicial review, there is as yet no respondent.  That being the case, we have had to rely entirely on what has been put before us by the appellant in order to determine whether his appeal should be allowed on the basis that he does enjoy a realistic prospect of success in his application.

5.  According to the appellant, the Hong Kong Government has in the past issued policy documents as to the manner in which it would manage issues of mass transportation.  In addition, so we are informed, the Government has issued planning and design guidelines as to the most appropriate planning and design practices for infrastructure development.

6.  We pause to record that regrettably these policy documents have not been put before us, certainly not in their entirety.  The papers referred to us by the appellant had been limited to a page or two from the documents.  In the circumstances, we have been unable to understand the true nature and effect of these documents and, of course, the degree to which, in those documents, Government has bound itself to any set course of action or to adherence to any set criteria.

7.  That being said, the appellant has informed us that in its policy document on mass transportation, the Government indicated that any additional railway termini would be situated in the Hunghom area.  We have been informed that this was the most appropriate plan as other rail links already terminate there and there are facilities for transport by other means to other parts of Hong Kong.

8.  According to the appellant, however, sometime between 2005 and 2009 – again we do not have the documentary material before us – the Government changed its stated policy and, in so doing, ignored its own self-imposed criteria as to best planning and design practice.

9.  According to the appellant, in or about 2005 the Government reached an agreement with the authorities of the Central Government in Beijing to build a high-speed rail link that would directly link Hong Kong with the network of high-speed rail links constructed, or being constructed, in the Mainland.  In terms of the agreement, so we are informed, the terminus in Hong Kong was sited not in the Hunghom area but in the West Kowloon Reclamation Area.  In addition, we are told, contrary to earlier stated intentions, Government dispensed with a railway station at the border.  In the result, there would be a direct inter-city link.

10.  As the appellant has explained matters to us, he does not seek to challenge the concept of the high-speed rail link itself.  What he seeks to challenge is the decision made by Government to place the terminus in the West Kowloon Reclamation Area and also the decision to dispense with a railway station at the border.

11.  As to the public mischief that the appellant contends will result from the re-siting of the terminus, he has informed us that the West Kowloon Reclamation Area has limited provision for traffic movement and that virtually no provision has been made to improve matters in light of the fact that the railway terminus will now be sited in the area.  Over a period of time, he has contended, it is almost inevitable that, in order to provide for the demands of increased traffic, there will have to be further reclamation of the harbour.  This, he has said, will constitute a direct undermining of the statutory protection of the harbour.  In this regard, it is important to recognise that the appellant, no matter how high he pitches his argument, can only talk of a danger of reclamation not the inevitability of it.

12.  As to the public mischief that will result from doing away with a railway station at the border, the appellant is of the view that it may undermine the jurisdiction of Hong Kong to deal with criminal offences that are committed on the train before it crosses the border and/or civil matters that may arise, for example, matters of insurance.  With respect to the appellant, this misunderstands the situation.  While any train using the high-speed link remains in the territory of Hong Kong, it will be subject to Hong Kong jurisdiction in respect of both criminal and civil matters.

13.  Before turning to the issues raised in this appeal, it should be mentioned that in the months that have passed since the refusal of the appellant’s application for leave to apply for judicial review, work in earnest has started on building the terminus in the West Kowloon Reclamation Area.  We mention this in part because, in his notice of application for leave to apply for judicial review, the appellant has sought various forms of interim relief which include an injunction to halt all work on the terminus and all work on any allied road schemes.

The issues

14.  When he refused leave, Reyes J did so essentially on three grounds.  First, that the decision challenged was not an administrative act but, to the contrary, was a legislative act not subject to judicial review.  Second, that the appellant did not have sufficient standing to mount the application for judicial review.  Third, that, although dressed in the language of judicial review, the appellant’s objections, when analysed, were essentially objections to the merits of the Government’s decisions and not therefore subject to judicial review.

15.  In respect of the first ground, in his notice of application the appellant stated that the decision in respect of which relief was sought was the decision of 16 January 2010 made by the Finance Committee of the Legislative Council to fund the high-speed rail link including the siting of it in the West Kowloon Reclamation Area.

16.  Correctly, in our view, the judge below held that the decision of the Finance Committee was not an administrative act.  It was a legislative act and, as such, was not subject to judicial review.  In this regard, it is to be noted that article 73 of the Basic Law bestows on the Legislative Council (and its constituent committees) the sole constitutional power to approve taxation and public expenditure.

17.  Under our constitutional framework, the function of the courts is to construe and apply the various enactments of our legislature which includes approval of taxation and public expenditure.  The courts have no concern with the merits of any such decision nor even with the manner in which any such decision came to be made.  Legislative decisions are political acts and our courts do not seek to direct political opinion.

18.  It appears to us that the appellant recognises his error in this respect.  It is, however, his submission that in his notice of application the respondent was stated to be not the Legislative Council but the Government itself.

19.  He has always sought, he has emphasised, to judicially review the decisions of the various sections of Government responsible for changing the siting of the terminus and for the removal of the border station.  Insofar as he cited the Finance Committee, he did so only on the basis that it was part of the general structure of Government and on the basis that its decision was the last decision which he could identify and to which he could pin the flag of his opposition.

20.  The appellant informs us that, even at this stage, despite making enquiries, he has not been able to identify and to obtain evidence of the exact decisions to which he objects.  We therefore have no evidence before us in the form of any written documents as to the nature of the decisions which are the true target of the appellant’s application, when they were made and on what basis they were made.

21.  There are many things which public bodies may do or fail to do which can be the focus of claims in judicial review in appropriate cases.  But the target must be identified.  It is fundamental.  Unless that is done, the courts are not in a position to determine, first, whether what is challenged is subject to judicial review at all and, second, whether what is challenged is tainted by some public wrong.

22.  As we understand it, the target chosen by the appellant is the bundle of decisions made by various officers of Government which, when brought together, may be described as a new policy, that policy being to move the high-speed rail link terminus to the West Kowloon Reclamation Area and to do away with the border station.

23.  But no application has been made at any time to amend the appellant’s application and frankly, although it is not in issue, if the applicant was to seek to amend his application at this late stage, being very much out of time and the public works now being well under way, we think it highly unlikely that such an application would be successful.

24.  In the circumstances the decision which is the subject of the appellant’s application for leave to apply to judicial review remains a decision which is not subject to judicial review.  That of itself must dispose of the appeal.

25.  In respect of the second ground of refusal by the judge below, namely, the finding that the appellant did not have sufficient standing to mount his application, we are prepared to accept that, having regard to the low threshold that must be obtained, a threshold aimed essentially at avoiding abuse, the appellant, at this early ex parte stage, has been able to demonstrate sufficient standing.  In this respect, we are of a different opinion to the judge below.

26.  We turn now to the third ground on which the judge below refused leave, namely, that, working on the basis that the true target of the application for a judicial review was Government policy, the appellant’s submissions, even though dressed in the terminology of judicial review, were in essence at all times submissions as to merits and not as to the lawfulness of Government policy.  In this regard, in his judgment (para. 10) the judge below said the following:

“In his submission, Mr. Chan deploys the standard vocabulary of judicial review (for example, Wednesbury unreasonableness, irrationality, the taking account of irrelevant considerations and the neglect of relevant considerations, error of fact, error in law). But the Court looks to substance, not forensic rhetoric. In my view, there is no disguising the reality that, at heart, Mr. Chan wishes to re-visit in Court the policy considerations which ultimately led Government to seek funding from LegCo for a High Speed Rail Link at WKT. The Court is not the proper venue for such a debate.”

27.  Having considered the very detailed submissions of the appellant, supported by his oral submissions today, we have been drawn to the same conclusion as the judge below.  It is evident, in our opinion, that the appellant passionately opposes the decisions (or policy) of Government concerning the routing of the high-speed rail link with its terminus where it is now situated.  He believes that the decisions (or policy) will have disastrous consequences for the greater welfare of the Hong Kong public.  His opposition is based on what he perceives to be thoroughly poor decision-making. In short, to employ the language of judicial review, his opposition is to the merits of the decisions (or policy).  Our courts, however, will not maintain an application for judicial review which seeks simply to set aside the decisions (or policy) of a public body on the basis that the decisions (or policy) lacks merit.  The appellant, therefore, has attempted – and has done so with considerable vigour – to so fashion his arguments as to the merits so that they appear to be arguments which are capable of supporting an application for judicial review.

28.  By way of example, during the course of submissions today the appellant has spoken of the bad faith of Government in pressing through the change to the siting of the terminus and doing away with the border railway station.  If a public body is motivated by some aim or purpose regarded by the law as illegitimate the courts may intervene on the basis that there has been an abuse of power.  But there must be evidence of improper motive materially influencing the decisions (or policy).  The Government is a political body and is entitled to reach a decision based on grounds that may properly be described as political.  That of itself does not taint any change to existing policy, assuming that there has been such a change, with bad faith.  When pressed on the issue, the appellant argued that, in changing existing policy, the burden lies on Government to demonstrate cogent reasons for that change.  If such reasons are not demonstrated then bad faith may be inferred.  With respect, we do not see any merit in that argument.  The fact that there has been no cogent reason given to support a change in policy by a public body does not mean that the body is thereby necessarily acting in bad faith or out of some improper motive.

29.  By way of a second example, the appellant has also sought to challenge the decisions (or policy) on the basis of irrationality: on the basis, that is, of unreasonableness.  Despite the deployment of some articulate but difficult arguments on this issue, we are satisfied that in truth the appellant’s case boils down to one thing, namely, that, because he feels so strongly concerning the merits of Government’s change of policy, assuming it to be that, he is of the view that his opposition alone elevates his argument to one of objective unreasonableness.  For ourselves, we do not see how such a challenge can even begin to get off the ground.  As the judge below recognised, myriad considerations must go into the formulation of the decisions which the appellant seeks to challenge; these include decisions of a strategic nature, decisions that may be classified as political.  To employ blunt terms, Government is entitled to make decisions that many members of our society consider wrong.  The real issue, in a case like this which seeks to encompass broad issues of policy as to strategic planning and the like, is whether Government has the power to make such decisions and, if so, whether it has done so in accordance with the powers vested in it.  With respect to the appellant’s determination, this seems to us to be yet another case in which an allegation of unreasonableness has been tossed into the mix when in truth it is a case about the exercise of public power.

30.  We have not gone through each and every challenge laid out in detail by the appellant.  Suffice to say, however, that we are satisfied that all of the challenges, in reality, are challenges as to the merits.

Conclusion

31.  Before leave may properly be granted, our courts today must be satisfied that, on the materials before it, an application for leave to apply for a judicial review enjoys a realistic prospect of success.  The old test that an application for leave will be granted if it is potentially arguable no longer applies.  In our view, the judge below was correct to refuse the appellant’s application.  For the reasons given, we do not see that this application enjoys a realistic prospect of success.  Accordingly, the appeal must be dismissed.

32.  As the appellant appears in person and this appeal is still at an ex parte stage, there will be no order as to costs.