XCHRX BENBECULA LIMITED v. THE ATTORNEY GENERAL AND ANOTHER

HCMP No. 709 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Headnote

Administration Law - Practice and Procedure - whether leave to apply for Judicial Review shall be withdrawn - Town Planning Board - allegation of structural bias and acting ultra vires prior to determination of objections - whether any 'rights' affected by amendment to Outline Zoning Plan - whether any 'sufficient interest' - whether an abuse of process.

RESULT - Leave withdrawn.

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J U D G M E N T

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1. On 23rd March 1994, Mayo J. granted the Applicant leave to apply for judicial review against "Amendments to the Approved Shek Kip Mei Outline Zoning Plan S/K4/3 purportedly made by the Town Planning Board and first gazetted on 24th December 1993 pursuant to s. 12(1)(b)(ii) of the Town Planning Ordinance (Cap. 131)".

2. Mayo J. granted leave on the basis of the documents submitted and without any oral hearing.

3. The Town Planning Board now apply for the setting aside of the leave granted by Mayo J. and the Attorney General seeks to be dismissed from the suit on the grounds that there is no lis between the Applicant and the Attorney General.

4. Unlike Mayo J., I have now had the benefit of full argument extending over about one day. I have been referred in detail to the Town Planning Ordinance, the Buildings Ordinance and to many cases. The Applicant's bundle of authorities contained 16 items and the Respondent's bundle of authorities contained no less than 19 items.

5. Mr. Barlow for the Respondents has subjected the Applicant's case to a detailed and penetrating analysis and I am quite satisfied that he has made good his submissions. Mr. Neoh, Q.C., put his case as persuasively and attractively as possible but at the end of the day he was not able to persuade me that it would be proper to grant leave even though, as I accept, the threshold for leave is low.

6. I do not propose to go into the arguments in detail especially as this matter is likely to go further given the considerable sums of money involved. I propose to summarise my views as to why leave should be withdrawn. I hasten to add that my conclusion intends no criticism of Mayo J. who did not have the benefit of full, or any argument, and was only shown one side of the story.

7. Relief was sought on three grounds.

8. Firstly, there was an attack against the Town Planning Board under the Bill of Rights on the grounds that the Board when it hears objections to its own draft plans and amendments is a judge in its own cause. It is thus suggested that this contravenes Article 10 of the Bill of Rights which guarantees "a fair and public hearing by a competent, independent and impartial tribunal established by law".

9. In Auburntown Ltd. v. the Town Planning Board. HCMP 222 of 1993, Rhind J. in an unreported decision given on 18th April 1994 rejected a similar Bill of Rights attack against the Town Planning Board. In that case, all the stages set out in the Ordinance had been completed when the judicial review attack was launched. In the instant case, the Board has not yet ruled on all the Applicant's objections although it has accepted one of them already.

10. The Auburntown case was argued by Mr. Neoh, Q.C., and an appeal is due to be heard in January 1995. Quite sensibly the parties in the present case have adjourned the substantive judicial review until after the Court of Appeal decision in Auburntown.

11. The second ground of attack is that the disputed amendments to the plan do not fall within the scope of s.4(1) of the Town Planning Ordinance nor are they within the scope of the power set out in s.3(1)(m) of the Town Planning Ordinance.

12. As to that point the Court of Appeal have ruled to the contrary in Attorney General v. C.C. Tse (Estate) Ltd. [1982] HKLR 7. I am bound by that decision.

13. Next it is said that the Town Planning Board, contrary to s.3(2) of the Ordinance, has not made any or any proper enquiries.

14. It is then said that the Town Planning Board failed to take into account relevant considerations and finally it is said that the "decision" is Wednesbury unreasonable.

15. Mr. Barlow has subjected the Ordinance to analysis and has demonstrated that there are three stages, namely, (1) initiation, (2) public consultation, and (3) Exco determination. He points out that the Applicants challenge the initiation stage, namely, the promulgation of a draft amendment plan and that such act is not judicially reviewable as a public law decision as defined in CSSU v. Minister of Civil Service [1985] 1 AC 374 at 408 E - H.

16. When one has regard to the scheme of the Ordinance I find it impossible to see how there is, as yet, any decision which can be the subject of an application of judicial review.

17. Mr. Neoh's argument to the contrary is ingenious. Although the Applicant bought NKIL 6181 at auction for HK$2.85 billion in March 1993 under Conditions of Sale which contained a specific height restriction, the applicant hoped that Hong Kong Government would agree to modify the Conditions of Sale. The Applicant, through Mr. Moir, its deponent, is said to have had a legitimate expectation that a modification on terms would be granted. However, Mr. Neoh says that by the promulgation of the draft proposed amendments to the Outline Zoning Plan the Applicant cannot obtain a modification due to the impact of s.16 of the Buildings Ordinance. Thus, as he puts it "the exercise of a public power has curtailed the Applicant's private rights."

18. When pressed on what rights the Applicant had, Mr. Neoh was forced to characterise a request to the Hong Kong Government as Landlord for a modification as a right. I regret to say that I am totally unconvinced by this argument. The relationship between the Applicant and Hong Kong Government, stemming from the Conditions of Grant, is one of Landlord and Tenant as has been made perfectly plain by Hang Wah Chong v. Attorney General [1981] HKLR 336 and Canadian Overseas Development Company v. Attorney General Civil Appeal 4 of 1991, 7th June 1991.

19. I do not see that any "legal right" of the Applicant has been affected by the decision complained of. This leads, I believe, to the conclusion that the Applicant has no "sufficient interest" under O.53 r.3(7) of the RSC to make this application because no legal rights (or public law legitimate expectation) have been infringed or are affected by the proposed amendments. It is important to concentrate on the private law rights contained in the Conditions of Grant and not on what the Applicant, as a developer, thought might be negotiable with the Hong Kong Government as Landlord. The Applicant has no rights in excess of those contained in the Conditions of Grant. The law relating to legitimate expectation is of limited scope and in my judgment the Applicant gets nowhere near to bringing itself within the relevant principles (see e.g. A.G. v. Ng Yuen Shiu [1983] 2AC 69.)

20. The point that has troubled me most is the question of abuse of process. It is now likely that the Town Planning Board will later this year rule on all of the Applicant's objections. They may agree or disagree with the Applicant. As I have said, on one issue (private clubs) they have already agreed with the Applicant. It seems to me that it is an abuse of process of the Court for the Applicant to be launching an application for judicial review whilst at the same time invoking the scheme of the Town Planning Ordinance and making objections in the normal way. That this is the Applicant's approach is made clear in the Applicant's Solicitor's letter to the Attorney General dated 24th August 1994 where they state, inter alia,

"moreover, we have recently been orally informed by the Secretary to the Town Planning Board that our client's Town Planning objection was partially allowed by the Board at its preliminary consideration meeting held on 29th July 1994 (in the absence of argument from our clients). The full hearing of the parts of our client's objection rejected by the Board will likely be fixed at the end of this year. It may well turn out that our client's judicial review may not need to be pursued in case the Board were to at the full hearing after the hearing the parties uphold the balance of our client's Objection." (Sic). [Emphasis added.]

21. I have been referred to four cases on abuse of process, namely, In Re Connolly Bros. Ltd. [1911] 1 CH 731; Re A1-Fin Corporation's Patent [1969] 3 AER 396; Imperial Tobacco Ltd. v. Attorney General [1981] AC781 and Tso Joe Tak v. Attorney General [1980] HKLR120. Having considered these cases, I am satisfied that this application for judicial review, at the same time when the Applicant's objections are pending and soon to be heard by the Board, is an abuse of the process of this Court.

22. As to the Bill of Rights challenge which is an allegation of structural bias, I fail to see how this can be argued before an adverse decision has been given. It is absurd to launch an attack of bias against the Town Planning Board, whether structural or otherwise, and then find that the Board agrees with all of the Applicant's objections.

23. It seems to me that the objections should first be ruled upon. Then, or later if the Governor approves the decision of the Town Planning Board, the Applicant will be free to apply to challenge the decision and raise all the points raised in the present application. I cannot see how the Applicant can be prejudiced by this procedure.

24. Mr. Neoh invites me not to withdraw leave but to adjourn this application. I decline that invitation. The application, as presently constituted and at the present stage of the Town Planning Board's process, is bound to fail and is in my judgment an abuse of process. I cannot see how the Applicants will be prejudiced by having to start again if an when an adverse decision is made. I did not see the time has begun to run against them because no decision within the scheme of the Town Planning Ordinance has yet been made.

25. For all these reasons, therefore, and for the other reasons set out in Mr. Barlow's skeleton argument and oral submissions, I am satisfied that leave ought to be withdrawn and I so order.

26. I propose to make a costs order nisi against the Applicant's in favour of the Respondents.