HCMP003232/1990
IN THE SUPREME COURT OF HOHG KONG
HIGH COURT
MISCELLANEOUS PROCEEDINGS
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IN THE MATTER of an application by Chan Lau Fong and others for an order of certiorari
and
IN THE MATTER of the Crown Lands Resumption Ordinance
and
IN THE MATTER of an application for Judicial Review
BETWEEN
CHAN LAU FONG
1st Applicant
TANG WAH KWAI
2nd Applicant
TANG KANG YAU
3rd Applicant
TANG LEUNG WAH
4th Applicant
TANG KON SANG
5th Applicant
TANG YUN SANG
6th Applicant
TANG TUNG TING
7th Applicant
TANG ON TING
8th Applicant
TANG LEUNG PING
9th Applicant
TANG LEUNG MAN
10th Applicant
TANG LEUNG YIU
11th Applicant
CHANG KING JUNG FU
12th Applicant
(Sole Executrix of the Will of the Will FU KWONG YAN, deceased)
FU CHU SAU YIN
13th Applicant
(Sole Executrix of the Will of the Will of FU TAK WO, deceased)
AND
THE ATTORNEY GENERAL
Respondent
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Coram: Deputy Judge Kotewall, Q.C. in Court
Date of hearing: 28 - 29 January 1991
Date of delivery of judgment: 30 January 1991
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JUDGMENT
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1. Pursuant to leave granted on the 28th September 1990, the applicants, who are indigenous residents of Tsuen Wan, apply for judicial review of the decision of the Governor-in-Council in resuming the land Lot Nos. 861, 862 Sec. A, 862 Sec. B, 862 Sec. C, 862 Sec. D, 862 remaining portion, 863 Sec. A, 863 Sec. B, 863 Sec. D, 864 Sec. A, 864 Sec. B, the remaining portion of 865, 866, 867 Sec. A, 869, 871, 872, 873, 874, 875 and the remaining portion of 876 in demarcation district No. 449 for a public purpose. The reliefs sought were for an order of certiorari to quash the resumption of those lots and a declaration that the resumption order was null and void.
2. The grounds upon which the applicants sought relief were that the decision of the Governor-in-Council of the said lots was ultra vires in that the resumption was not for a public purpose, and also that the Governor-in-Council had failed to take into account all relevant factors and/or had taken into account irrelevant factors in deciding to order the resumption of the said lots.
3. The relevant statutory provisions are to be found in the Crown Lands Resumption Ordinance, Cap. 124 of the Laws of Hong Kong. The provisions specificially drawn to my attention are the following. First of all, sub-paragraph (d) of the definition of "resumption for a public purpose" in section 2 which reads:-
"Resumption for any purpose of whatsoever description whether ejusdem generis with any of the above purposes or not, which the Governor-in-Council may decide to be a public purpose."
Then section 3 which reads :-
"Whenever the Governor-in-Council decides that the resumption of any land is required for a public purpose, the Governor may order the resumption thereof under this Ordinance."
Then section 16 : -
"Any land resumed under the provisions of this Ordinance may be demised and granted by the Governor on such terms and conditions and at such price whether by way of rent, premium or otherwise, and either by public auction or private contract as the Governor may determine";
and lastly section 19 which provides:-
"In any notice to resume any land, it shall be sufficient to state that the resumption of such land is required for a public purpose, without stating the particular purpose for which the land is required; and a notice containing such statement shall be conclusive evidence that the resumption is for a public purpose."
4. The resumed lots are situated in Hoi Pa Village in Tsuen Wan in the New Territories. The total area of the said lots is 19,173 sq.ft.
5. The affirmation of the 1st applicant dated the 28th September 1990 sets out in some detail the history and ownership of the lots in question. These are not essentially matters of controversy.
6. The resumed lots are all within Area 18 of the Tsuen Wan Outline Zoning Plan No. S/TW/3. The resumed lots consist of both buildings and agricultural land and are situated within Tsuen Wan New Town.
7. A major portion of the village of Hoi Pa has already reverted to the Government in early 1980 pursuant to a block resumption approved by the Executive Council on the 28th July 1981. Following their reversion to Government ownership, many of these lots susbsequently were developed for public purposes such as the provision of roads, a primary school, district parks, open spaces, the Yan Chai Hospital extension and public parking facilities. The Tsuen Wan Outline Zoning Plan No. S/TW/3 was most recently gazetted under section 7 of the Town Planning Ordinance on the 12th August 1988, and on that plan, the resumed lots are all contained within an area zoned commercial/residential within Area 18 on that plan. Area 18, together with Areas.4, 5, 6, 22,.23 and 35, make up the town centre of Tsuen Wan and form a mixed residential and business shopping area conveniently located with regard to public facilities such as the MTR and other means of public transport and various Government institution and communal facilities.
8. The 1st applicant also makes the point that almost the entire area of the resumed lots are zoned for private as distinct from public purposes.
9. Resumption Notice No. G.N.2540 dated the 10th July 1990 which covers the resumed lots as well as others, states that the land is to be resumed for a public purpose. The heading or title of the Notice reads : -
"PWP ITEM NO. 5 CG
DEVELOPMENT OF LAND AT HOI PA VILLAGE -
REMAINING ENGINEERING WORKS
TSUEN WAN, NEW TERRITORIES"
An engineering drawing No. TWCE835D(TDD) in the New Territories Development Department shows that a proposed new road is to be constructed in the area:
10. Although the parties are not completely agreed as to the details, they are agreed that as far as the road works are concerned, only a very small part of some of the lots in question would be affected. Correspondence between the 1st applicant and the Buildings and Lands Department had been going on for some time and in paragraphs 10 and 11 of his affirmation, the 1st applicant summarises the essence of the points raised by both parties in that correspondence. This is how the matter is put : -
"10. It will be noted from the above letters that I have relied amongst other things on the following facts and matters, all of which are true to the best of my information, knowledge or belief:
(a)
The block Resumption Approval dated 28th July 1981 has certainly not been implemented for very many years, so far as I am aware since 1981.
(b)
The owners of the said resumed Lots have never accepted that the established village removal terms by the Government are appropriate, and have certainly never themselves accepted them. They have not at any stage participated in the Hoi Pa Village Removal Committee set up by the Government in 1979.
(c)
The application made by me on their behalf in the letters for an 'in situ' exchange was made with unanimous decision of all the remaining indigenous villagers of Hoi Pa Village, and was not an application by one or two individual owners.
(d)
The said resumed Lots have been designated as Commercial/Residential' lands for many years in the Outline Zoning Plan of Tsuen Wan, and remain so in the most recent plan gazetted in 1988.
(e)
Only a very small part of two out of twenty-one resumed Lots (namely 0.007%) will be required for the public purpose of making construction of the new access road to the area, though it is true that certain of the other Lots not the subject of this Application will also be so affected. I have proposed and the Applicants are all willing to implement a voluntary agreement whereby that small part of the said two Lots affected shall be surrendered to the Government for the purpose of building that road along the western part of Tak Wah Park, and thereafter there should be an 'in situ' exchange in accordance with the normally established procedures operated for such exchanges by the Government.
11. The position adopted by the Government can be seen from the correspondence. It will be seen that the position adopted by the Government can be summarised as follows : -
(a)
It is not prevailing Government policy to grant land zoned within a lay-out in exchange for land being resumed or cleared by the Government.
(b)
When building Lots of indigenous villagers are resumed, the Government would offer village removal terms as and when approved by the Executive Council.
(c)
According to prevailing land exchange policy, holders of land exchange entitlements, namely Letters A or B, can bid for land open for tender, in New Town for commercial/residential or other purposes. The proposed 'in situ' exchange would not help that prevailing land exchange policy.
(d)
The resumption of the said resumed Lots was the last stage of the Hoi Pa Village Clearance Scheme. It would be unfair to those who either have accepted village removal terms in the main removal scheme or whose land had already been resumed under the Block Resumption Order if the Government were to deal with the last remaining phase on a different basis.
(e)
The resumption of the said resumed Lots is required for road purposes and not only for the residential/commercial development."
11. As to the value of the lots in question, although there are differences as to the actual figures, it is accepted that they are valuable pieces of property and that their development value together is higher than when the lots are taken individually which is how they are treated for the purposes of compensation, which the applicants complain is inadequate.
12. Apart from the foregoing factual matters, the applicant's case, already adumbrated in the grounds for relief, is elaborated upon in paragraphs 15 and 16 of the 1st applicant's affirmation. This is how he puts it : -
"15. I respectfully submit accordingly that an important question of real public interest arises in this present case, namely whether the resumption of the said resumed Lots is "ultra vires" within the true meaning of the Crown Lands Resumption Ordinance, in particular because:
(a)
The only public purpose apparent from the correspondence and the matters referred to in this Affirmation is that only a very small part of the resumption is for construction of a public road, and that, so far as the present thirteen Applicants are concerned, only 2 Lots out of the total of 21 Lots are involved;
(b)
Resumption of land zoned and intended for "commercial/residential" use (which it is the apparent intention of the Government to resell, after resumption, for such private use) is not on the facts of this case resumption of land for "public purposes" within the meaning of the Ordinance;
(c)
Various reasons given by the Government in the correspondence (even if - unknown to me - these reasons were in effect adopted by the Executive Council) cannot turn a resumption for "private purposes" into a resumption for "public purposes"; for instance the suggestion made by the Government that the said resumed Lots also should be taken by resumption merely because the other indigenous villagers (whose lands had been required for clearly public purposes such as road or primary school construction) previously had their lands resumed, rather than had been given in "in situ" exchange.
16. I further respecfully submit that in the circumstances of this case the Governor and/or the Governor-in-Council must have failed to take into account relevant factors and/or must have taken into account irrelevant factors in ordering the resumption of the said Lots "for a public purpose".
13. Mr Lee for the applicants, who has presented the applicants' case succinctly and persuasively, also referred me to the evidence of Mr Moffoot. I do not draw attention to this evidence specially not because I consider what Mr Moffoot says unimportant, but because the basis of the applicants' case is not essentially altered by that evidence. Mr Moffoot's evidence is, however, of relevance to Mr Lee's submission based on the failure of the Governor-in-Council to grant his clients "in situ" exchange of land and I have taken it into account.
14. The essence of Mr Lee's submission can be briefly stated. The only public purpose which can possibly be relied on or pointed to is the road works. Only tiny portions of the lots in question are affected by those works. Since, as Mr Lee puts it, the "lion's share" of the lots are not required for the only public purpose available, namely the road works, they cannot form part of or be resumed for any public purpose. Here, so the argument goes, the resumption is for the purpose that after clearance and drainage works have been done in the area, the lots can be sold to private enterprise for re-development, albeit in accordance with an overall planning scheme. This, on Mr Lee's submission, is really for the purpose of raising revenue for the Government at the expense of the applicants who are able and willing to abide by any conditions which the Government may lay down.
15. Mr Lee stressed that, while the terms of the Crown Lands Resumption Ordinance are wide, fund raising per se can never fall within the ambit of public purpose and that the Ordinance must not be read in such a way as to produce, amongst other things, absurdity, inconsistency and incongruity. Graphic examples were given as to how the Government may compete with the private sector, leading to incongruity and, possibly, dire consequences. This, in summary, is Mr Lee's argument on the construction of the Ordinance and part of his ultra vires argument. He also reminded me of a number of the more fundamental principles of statutory interpretation referred to in Maxwell on The Interpretation of Statutes, 12th edition, and Bennion's Statutory Interpretation. I shall do no more than refer to some of the extracts in Maxwell to give the flavour of Mr Lee's submission.
16. Mr Lee, first of all, referred to the exposition of the golden rule on page 43, I do not think I need read that, and then this well-known passage at page 45 is referred to : -
"If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result. Where alternative constructions are equally open, that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating; and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system.
The next passage is to be found on page 105 under the heading "Consequences to be Considered" and this reads : -
"Before adopting any proposed construction of a passage susceptible of more than one meaning, it is important to consider the effects or consequences which would result from it, for they often point out the real meaning of the words. There are certain objects which the legislature is presumed not to intend, and a construction which would lead to any of them is therefore to be avoided. It is not infrequently necessary, therefore, to limit the effect of the words contained in an enactment (especially general words), and sometimes to depart, not only from their primary and literal meaning, but also from the rules of grammatical construction in cases where it seems highly improbable that the words in their wide primary or grammatical meaning actually express the real intention of the legislature. It is regarded as more reasonable to hold that the legislature expressed its intention in a solvenly manner, than that a meaning should be given to them which could not have been intended.
This passage, which has appeared in previous editions of Maxwell, is supported by the weight of the modern authorities. Sometimes, indeed, the meaning of words is so plain that effect must be given to them regardless of the consequences, but more often - as the cases discussed in the following pages show - a construction is arrived at with reference to the consequences which must follow from it. 'It is always proper,' Lord Reid has said, 'to construe an ambiguous word or phrase in light of the mischief which the provision is obviously designed to prevent, and in light of the reasonableness of the consequences which follow from giving it a particular construction. 'If the language is capable of more than one interpretation, we ought to discard the more natural meaning if it leads to an unreasonable result, and adopt that interpretation which leads to a reasonably practicable result.' In the words of Romer L.J., 'the court... when faced with two possible constructions of legislature language, is entitled to look to the results of adopting each of the alternatives respectively in its quest for the true intention of Parliament." .
Then onto page 113 under the heading of "Restriction to specific object", there is this passage which reads : -
"In many other cases, where it was evident that a literal construction would have carried the operation of the Act far beyond the object with which it was enacted, words have been given a restricted construction."
17. Mr Lee also referred to the presumptions against changes in the Common Law and the presumption against intending what is inconvenient or unreasonable. He then refers me to another passage on page 203 under the heading "The more reasonable construction to be adopted" as follows : -
"Not only are unreasonable or artificial or anomalous constructions to be avoided: it appears to be an assumption (often unspoken) of the courts that where two possible constructions present themselves, the more reasonable one is to be chosen."
18. The last main topic in Maxwell which Mr Lee refers to is the "presumption Against Injustice Or Absurdity" on page 208 and the passage goes : -
"A sense of the possible injustice of an interpretation ought not to induce judges to do violence to well-settled rules of construction, but it may properly lead to the selection of one rather than the other of two reasonable interpretations. Whenever the language of the legislature admits of two constructions and, if construed in one way, would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention to bring it about has been manifested in plain words."
19. The passages in Bennion are to similar effect although some later authorities are referred to. I do not think I need to refer to Bennion, but all these passages I have well in mind.
20. As to the taking into account of irrelevant matters and the failure to take into account relevant matters, Mr Lee relies on what in essence has already been referred to in the 1st applicant's affirmation in paragraph 11 which I have already read. Mr Lee makes the point that since the only possible matters which could have been taken into account are those set out in an inter-departmental memo and since all those matters, according to Mr Lee, do not hold water, the rejection by the Governor-in-Council of the "in situ" exchange proposals is bad and hence the order for resumption is also tainted. Mr Lee accepted that everything turns on what, if any, is the public purpose disclosed on the evidence. If there was no public purpose disclosed, then, he says, he must succeed. If the evidence discloses that the lots were resumed for a public purpose on the true construction of that phrase, then he could still rely on the Governor-in-Council having taken into account irrelevant considerations, since the decision making process would then have, nonetheless, been flawed.
21. Mr Lee has another string to his bow. He referes to the resumption notice, the relevant parts of which I have already referred to, and makes the point that the validity of the resumption is depending upon the purpose set out in the notice which, according to Mr Lee, is contained in the words "remaining engineering works". I was referred to five other previous resumption notices, none of which contained those words. Mr Lee then makes the attractive point, with a passing reference to section 19 of the Crown Lands Resumption Ordinance, that the decision of the Governor-in-Council cannot possibly stand if the members of the Executive Council thought that all the lots were required for the remaining engineering works, since the only engineering works contemplated were the road works, and these only affect miniscule portions of some of the lots.
22. Mr McNamara for the respondent approached the matter quite differently. The road works, he says, are quite irrelevant and the words "remaining engineering works" are only part of the title or heading of the resumption notice and not part of the stated purpose. But even if these words were part of the stated purpose, according to Mr McNamara, they are justified by the evidence before me of the clearance and drainage civil engineering works which have to be implemented. This, I accept, is born out by the evidence and this submission, from Mr Lee, based on the wording of the notice, while ingenious is not one I can accept. Mr McNamara emphasised that the court should not be astute to substitute its own views for those of the Governor-in-Council, although he was prepared to accept that if I were to find that the Governor-in-Council acted beyond the scope of their powers as delineated in the Ordinance, I can intervene. On Mr McNamara's case, the issues raised by Mr Lee about the "in situ" exchange are completely irrelevant since the application for judicial review is limited to what is contained in the order for resumption. Mr McNamara' referred to the evidence of Mr Wan-Min-Kee You Chiu to set the background and context, and Mr Wan says this in paragraph 3 of his affirmation of the 17th January 1991 : -
"On 13 November 1973 the Governor-in-Council approved ,the Tsuen Wan District Outline Zoning Plan No. LTW/138. This plan is a statutory plan approved under the Town Planning Ordinance (Chapter 131). It is designed to illustrate the broad principles of development within the planning area and to provide guidance for more detailed planning in relation to the overall development of Tsuen Wan New Town. It aims to provide balanced development to cater for the projected population in terms of types of housing, commercial facilities, employment opportunities, open space, government and community facilities, roads and other services. It is available for inspection by the public."
23. Mr Wan goes on to refer to what is contained in the explanatory statements to the amendments to the outline zoning plan as follows. Paragraph 2.1 of the explanatory statement reads : -
"The purpose of building Tsuen Wan New Town is to provide balanced development to cater for almost 900,000 people. The purpose of this Outline Zoning Plan is to establish a statutory land use pattern and major road framework within which the use and development of land may be legally controlled in order to achieve this purpose."
Paragraph 8 of the explanatory statement further explains the implementation of the plan:-
"The plan will be implemented in conjunction with the Kwai Chung and Tsing Yi Outline Zoning Plans over a period of about 10 years. Timing of implementation of the various public proposals is contained in the 10-year Development Programme of Tsuen Wan New Town which has been prepared to co-ordinate and consolidate both public and private development projects so that in each phase of development there will be adequate facilities for those who work and live in Tsuen Wan."
24. The concept of balanced development is defined in the Hong Kong Planning Standards and Guidelines as follows:-
"A balanced development is the physical foundation on which to build a balanced community and it refers to the balances between:
(a)
private and public housing;
(b)
population and the required facilities/services;
(c)
sizes of population in different income groups;
(d)
employment opportunities and working population (and therefore housing);
(e)
distribution of housing, and location and distribution of employment areas; and
(f)
distribution of housing and location of shopping, recreational and community facilities."
25. Mr Wan goes on to say the Planning Guidelines accordingly provide yard sticks for assessing the degree of balanced development in an area representing a mixture of private and public housing provision together with a cross-spectrum of population in different income groups and associated employment opportunities. The achievement of a balanced development was and remains the Government's objective in implementing the Tsuen Wan central development scheme.
26. The Tsuen Wan District is divided into 18 planning areas and the planning area covering Hoi Pa Village is Area 18. Paragraphs 11 to 14 of Mr Wan's evidence, I should read in full, are as follows : -
"11. The process of land development is complex but generally involves the following steps:
(a)
the preparation of planning/engineering feasibility studies, including outline programme of work and outline development plans;
(b)
the acquisition and clearance of land;
(c)
site formation and the provision of engineering services;
(d)
the allocation of land for government use and for sale to private developers; and
(e)
building development.
12. An area of about 1.1 hectares of Crown land and 1.7 hectares of private land was identified as necessary in order to implement the comprehensive development of the portion of Area 18 within Tsuen Wan Central which includes provision for the extension of Yan Chai Hospital, a primary school, commercial and residential development, public parking facilities, the extension of Tsuen Wan Market Street and district and local open spaces.
13. As identified in 1981, the land affected was densely occupied by 1 tenement building, some 94 village houses, 422 domestic structures, 55 factories, 80 shops in temporary structures and 102 other structures and canopies, altogether providing accommodation for about 1,000 families. Most of the existing village houses were dilapidated and a few had been declared dangerous by the Building Authority. The lower part of the area was vulnerable to flooding during the wet season and it was considered by the government that the overall environment of the town centre would be greatly improved by a new drainage system.
14. It was deemed appropriate by the government to adopt Block Resumption procedures in view of the need to acquire all the private land involved in the comprehensive development scheme which would be implemented over a period of a few years. This Block Resumption included land which would be required more than 12 months ahead of the expected development to cater for changes in development programme. Once the Block Resumption had been ordered by the Governor-in-Council, the subsequent Orders (for resumption) would not need to be referred back to the Executive Council. Such orders would be submitted to the Director of Lands, to whom the Governor has delegated his authority, for approval. The institution of formal resumption proceedings was also deemed necessary so as to ensure that engineering works could start on time and that Area 18 would be completely developed in conformity with the comprehensive development scheme. Any delay in acquisition by agreement which might be caused by succession difficulties, absentee landowners or the continued refusal of some landowners to surrender their land would thus be avoided. The general location of the land to be resumed is shown in the plan."
27. As to the resumption notice, Mr Wan says this in paragraph 21 of his affirmation : -
"The current resumption (Stage IIB) was gazetted under Gazette Notification 2540 dated 10 July 1990 following the Executive Council's advice and the Governor's Order (dated 26 June 1990) declaring :
(a)
under section 2 of the Crown Lands Resumption Ordinance, the purpose of the proposed resumption, namely the implementation of the final phase of a comprehensive development scheme in Area 18, Central Tsuen Wan, is a public purpose; and
(b)
under section 3 of the Ordinance, the resumption of the land is required for that public purpose."
And a memo marked for identification as WMK-5A supports that evidence.
28. In paragraph 23, Mr Wan goes on to say : -
"The land in Stage IIB is needed specifically for the construction of a road connecting Tsuen Wan Market Street and Tax Wah Street, the completion of Tak Wah Street Park and the formation of a site for commercial and residential development. It is important for such private commercial and residential development to be included in order to maintain a balanced social mix within the new town community. Furthermore, before such development can take place, the government must form the site which involves the clearing of the land, the provision of adequate drainage and other amenities."
29. Commenting on the 1st applicant's affirmation, Mr Wan says in paragraph 35 of his affirmation that : -
"The Governor-in-Council, having thoroughly considered Mr Chan Lau Fong's appeal to the Executive Council, eventually reaffirmed on 26.6.1990 that the implementation of the final phase (Stage IIB) of a comprehensive development scheme in Area 18, Central Tsuen Wan is a public purpose and that the resumption of the land is required for that purpose."
30. Mr Wan's conclusion can be found in paragraph 47, and he says this: -
"In this case, it is clear that the resumption has a public character and it is in the general interests of the community. This is the final phase of a resumption which has taken place in order to provide for the balanced development of Tsuen Wan New Town. This development is in accordance with the layout plan of the area and it is part of the comprehensive development scheme for Area 18 of Central Tsuen Wan. The development of Tsuen Wan must be considered as a whole. This final phase includes a public road and park and commercial and residential development while other phases included schools and hospitals and other public facilities. It is essential to have private housing and commercial development mixed with public housing and commercial development in order to provide for a balanced socio-economic society in Tsuen Wan. This final phase is an integral part of the whole development which will benefit both the residents of Tsuen Wan and Hong Kong as a whole."
This, I believe, is a sufficient recital of the evidence.
31. In essence, Mr McNamara's submission on the factual issues amount to this: the lots in question are all within areas designated for the development of Tsuen Wan New Town as part of the Government scheme to have a balanced development. The public purpose effected by the resumption is in line with, and part of, that general policy of the balanced development of a new town, and the road works are at best ancillary and a very small part of the overall scheme. In short, the resumption of the lots in question are necessary to give effect to the whole planned development of Tsuen Wan New Town.
32. While there are no real disputes as to facts, the focus on the factual issues was quite different. Mr McNamara wanted me to look at the broad picture to determine the legitimate public purpose whereas Mr Lee, in effect, concentrated on the road works.
33. The issue, as I see it, comes down to this. Assuming, as I think is accepted by Mr Lee, that the balanced development of Tsuen Wan New Town is a useful public purpose, is the resumption of all the lots in question a part of that public purpose so as to enable the resumption itself to be for a public purpose? If, as Mr Lee says, not all of the lots are necessary for that purpose, which is only, according to Mr Lee, limited to the road works, and the rest of the scheme can nonetheless be accomplished without resuming all of these lots, then the resumption of all these lots would clearly not be a public purpose.
34. The position as I see it, however, is not that simple. Even Area 18 into which these lots fall is but a small part of the complete and much larger and more comprehensive scheme. It would, in my view, be a touch unrealistic to consider these lots in isolation. The road widening is only one aspect of the whole balanced development concept. Much more civil engineering works would be required for the clearance and the provision of an adequate drainage system, especially since this is a flood prone area during the wet season.
35. The proposal by the government to sell off some parts of the area resumed for commercial development is but part of, and on the evidence, a necessary part of the overall scheme, to ensure a balanced development in accordance with government policy as to the best way to develop this new town.
36. The fact that Mr Lee's clients may be able to do what the government can do and that they may be made to do so by the imposition of special conditions is not necessarily to the point. It does not detract from the public purpose of the resumption although it may go to Mr Lee's second ground. I also bear in mind the plan of development of Hoi Pa village which is at, I think, p.338 of the Bundle, that it may not in fact be all that simple for the applicants because the lots in which they have an interest are not completely contiguous one with another. There are other private and government lots scattered between and dividing the applicant's lots and there are squatters to be rehoused. These must be matters which the Governor-in-Council can legitimately take into account.
37. Mr Lee submitted that none of this I should consider, since there is no evidence that the Governor-in-Council considered these matters. I do not agree. The evidence in the correspondence exhibited and the evidence of Mr Wan which I have already read is that all relevant matters would be brought before the Governor-in-Council including the question of in situ exchange. In my judgment, it is for Mr Lee to make out that that has not been done and not the other way round. I do not use the language of the burden or onus of proof since this is something which can often be a matter of inference. But I do find that on all the evidence before me, it has not been shown that the Governor-in-Council disregarded relevant matters or took into account irrelevant matters.
38. The fact that the Governor-in-Council may have considered matters which, assuming in Mr Lee's favour, are not entirely relevant, is not on its own sufficient. It is still necessary to show a case, I do not put it any higher, for saying that the Governor-in-Council could have taken those matters into account and allowed them to have influsenced the thinking of its members in arriving at the decision under challenge. This, Mr Lee has not succeeded in doing. And despite Mr Lee's very engaging submissions, I do not feel able to say that if the Governor-in-Council had taken into account the pros and cons canvassed in the inter-departmental memo at p.284 of the Bundle, those are matters which are, or should be, extraneous to the question of in situ exchange.
39. It is not to the point on this application that it would have been possible for the Governor-in-Council to have gone another route instead of resumption. It is not within the court's province to second-guess the decision of the Governor-in-Council and if there are two routes which can be taken, then unless Mr Lee satisfies me that the one chosen is unreasonable on Wednesbury principles, then it matters not that there may be factors militating against the factors in favour of the route not chosen.
40. I do not pause to canvass further a number of Mr McNamara's submissions as to the limited scope of the court's power of intervention. I accept, of course, the Wednesbury principles and what Hunter J. (as he then was) said in In re K.O.Y. Investment Co. Ltd. and Ors. [1983] HKLR 28 at p.40. But I would have thought that it was unduly restrictive to erect on the presumption of regularity an edifice of infallibility even for a body as highly regarded as the Governor-in-Council.
41. Mr McNamara had submitted that as this application is for judicial review of the decision to resume the lands in question, the matter of in situ exchange is completely beside the point. I accept, of course, what this application is all about, but on this limited aspect, I accept Mr Lee's submission that the question of in situ exchange was a matter which the Governor-in-Council should have considered as part of the resumption. Having considered it, the Governor-in-Council was of course free to give whatever weight it, as a body, deemed fit to give to it. I differ from Mr Lee only in that it has not been shown on the evidence that the Governor-in-Council had failed to consider that matter, or that the Governor-in-Council must have taken extraneous matters into account in rejecting the applicant's proposals.
42. Another matter upon which I should not be taken to agree with Mr McNamara is his more extreme submission that the Crown Lands Resumption Ordinance empowers the Governor-in-Council to resume land purely and simply for the purpose of raising revenue by the sale of the land resumed. This point, though ventilated in argument, does not, in my judgment, arise for decision and I prefer to leave it open. My conclusion is premised on the factual, basis that the resumption which I am concerned will form an essential part of a larger and more comprehensive scheme for the development of Tsuen Wan New Town which the Governor-in-Council is clearly entitled to consider as a public purpose.
43. On the ultra vires limb of Mr Lee's argument, therefore, I find that there is nothing to show that the decision of the Governor-in-Council that the resumption was for a public purpose was ultra vires. I bear in mind that what is a public purpose does not depend on the ipse dixit of the Governor-in-Council, but is a matter of statutory interpretation of the Ordinance and the application of the statute as properly construed to the facts.
44. I have already dealt with the other points raised by Mr Lee and the main points addressed to me by Mr McNamara to both of whom I am grateful for their submissions. I have not and do not intend to rehearse all the other capable arguments and authorities addressed to me, not because I have found them unhelpful, but because it is not in anyone's interest to add to the length of this judgment. In the result, this application for judicial review is dismissed with costs.
(R.G. Kotewall)
Deputy Judge of the High Court
Representation:
Mr Martin Lee, Q.C. and Mr Warren Chan, inst'd by Liau, Ho & Chan for the Applicants
Mr McNamara & Ms Hartstein, Attorney General's Chambers, for Respondent