TSANG KWONG KUEN v. TOWN PLANNING BOARD AND ANOTHER

HCAL 141/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 141 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  This is the applicant’s leave application to apply for judicial review, seeking to challenge the following two decisions:

(1)   The decision (“the TPB Decision”) of the Town Planning Board (“TPB”) made on about 29 April 2015 to submit the draft Kwu Tung North Outline Zoning Plan No S/KTN/1 (“the Draft KTN OZP”) and the draft Fanling North Outline Zoning Plan No S/FLN/1 (“the Draft FLN OZP”) without amendment to the Chief Executive in Council (“CEIC”) for approval.

(2)   The decision (“the CEIC Decision”) of the CEIC made on about 19 June 2015 to approve the Draft KTN OZP and the Draft FLN OZP.

2.  The leave application was made on 28 July 2015.  In the original Form 86, the applicant then acting in person only sought to challenge the TPB Decision.  At that time, the application was made just within three months of the TPB Decision.

3.  However, by way of an Amended Form 86 dated 31 December 2015 (“AF86”), the applicant (now legally represented) sought also to challenge the CEIC Decision and joined the CEIC as the 2^nd putative respondent.  By then, the leave application was made more than six months from the date of the CEIC Decision and is thus out of the maximum statutory 3-month period provided under Order 53, rule 4(1) of the Rules of the High Court.  In the premises, in the present application, the applicant also asks for time to be extended for making the leave application in relation to the CEIC Decision.

4.  As directed by the court, the TPB and CEIC (as the putative respondents) attend this hearing and oppose the leave application based on the AF86.

5.  The applicant is represented by Mr Hectar Pun SC and the putative respondents by Mr Johnny Mok SC, leading Mr Abraham Chan.

B.   BRIEF BACKGROUND

6.  To understand the proposed grounds of judicial review, it is helpful to set out briefly the background leading to the TPB and CEIC Decisions as follows.

7.  On 5 November 2013, the CEIC, in the exercise of the power conferred by section 12(l)(b)(i) of the Town Planning Ordinance (Cap 131) (“the Ordinance”), referred the approved Kwu Tung North Outline Zoning Plan No S/NE-KTN/8 (originally gazette on 10 November 2006) to the TPB for replacement by a new plan.

8.  The TPB prepared the Draft KTN OZP and the Draft FLN OZP under section 3 of the Ordinance.

9.  On 20 December 2013, the TPB exhibited the Draft KTN OZP and the Draft FLN OZP (collectively “the Draft OZPs”) for public inspection in accordance with section 5 of the Ordinance for a period of two months from 20 December 2013 to 20 February 2014 (“the Exhibition Period”).

10.  During the Exhibition Period, a total of 41,785 representations made under section 6(1) of the Ordinance were received by the TPB (“the Representations”), among which 20,668 were for the Draft KTN OZP and 21,117 were for the Draft FLN OZP.

11.  On 15 April 2014, the Representations were published for three weeks for public comments.  The TPB received 11,603 comments (“the Comments”) made in respect of the Representations under section 6A(1) of the Ordinance, among which 5,596 were for the Draft KTN OZP and 6,007 were for the Draft FLN OZP.

12.  In October 2014, the Planning Department prepared TPB Papers No 9745, 9746, 9747 and 9748 (collectively “the TPB Papers”) for consideration by the TPB at its meeting for consideration of the Representations and the Comments held pursuant to section 6B of the Ordinance.

13.  The Planning Department categorised the Representations, the Comments and its responses into four groups to be heard and considered collectively by the TPB:

(1) Group 1 on transport and traffic-related issues (“Group 1”);

(2) Group 2 on conservation issues (“Group 2”);

(3) Group 3 on specific land use proposals (“Group 3”); and

(4) Group 4 on general issues (“Group 4”).

14.  The TPB heard and considered the Representations and the Comments in its 1069^th Meeting (“the Meeting”) held between 8 October 2014 and 29 April 2015 for a total of 47 sessions.

15.  The open sessions of the Meeting were held on the following days: 8, 13 - 15, 20 - 22, 27 - 29 October 2014, 3 - 5, 10, 12, 17 - 19, 24 - 26 November 2014, 1 - 3, 8 - 10, 15 - 17 December 2014, 5 - 7, 12, 13, 19 - 21, 26 - 28 January 2015, 2, 3 February 2015, and 2, 4 March 2015 (a total of 45 sessions) (collectively “the Open Sessions”).

16.  Each of the four Groups of the Representations and Comments was heard by the TPB in the Open Sessions on the following days:

(1) Group 1 – 8 October 2014, 16 December 2014, 19 January 2015;

(2) Group 2 – 8 October 2014;

(3) Group 3 – 8 October 2014, 10 December 2014; and

(4) Group 4 – 13 - 15, 20 - 22, 27 - 29 October 2014, 3 - 5, 10, 12, 17 - 19, 24 - 26 November 2014, 1 - 3, 8 - 10, 15 - 17 December 2014, 5 - 7, 12, 13, 19 - 21, 26 - 28 January 2015, 2, 3 February 2015, 2, 4 March 2015.

17.  However, due to the absence of representers and commenters, six of the Open Sessions held on 17, 19 November 2014, 1, 3, 15 December 2014 and 2 March 2015 were adjourned without considering any Representations or Comments.  As such, only 39 of the Open Sessions were actually held.

18.  During the Open Sessions, it is the applicant’s evidence that some TPB members:

(1) only joined a session when it had already commenced and some of the Representations had already been presented;

(2) left early before all the Representations in a session were presented; and

(3) left and re-joined a session when some Representations were heard during their absence.[1]

19.  Two closed sessions for deliberation and decision-making were held on 28 and 29 April 2015 respectively (“the Deliberation Sessions”).

20.  In the Deliberation Session held on 28 April 2015, members of the TPB:

(1) conducted deliberation of the four Groups of Representations and Comments; and

(2) made decisions in respect of the four Groups of Representations and Comments.

21.  In relation to Group 1, the applicant says 14 of the TPB members who were said to be absent for at least one of the Open Sessions for Group 1 were present for the final deliberation and decision-making in respect of Group 1.[2]

22.  In relation to Group 2, the applicant’s case is that 10 of the TPB members who were absent for the single Open Session for Group 2 were present for the final deliberation and decision-making in respect of Group 2.[3]

23.  In relation to Group 3, the applicant says 13 of the TPB members who were absent for at least one of the Open Sessions for Group 3 were present for the final deliberation and decision-making in respect of Group 3.[4]

24.  In relation to Group 4, 12 of the TPB members who the applicant says were absent for at least 10 of the Open Sessions for Group 4 were present for the final deliberation and decision-making in respect of Group 4.[5]

25.  In the Deliberation Session held on 29 April 2015, the TPB members conducted further deliberation, after which they:

“... agreed that the [TPB]’s decisions on the representations in Group 1 to Group 4 in respect of the draft FLN and KTN OZPs, as made on the day before [ie, 28 April 2015], were in order and that the OZPs should not be amended to meet the representations.”[6] (emphasis added)

26.  On the same day, the TPB decided to submit the Draft OZPs without amendment to the CEIC for approval (ie, the TPB Decision).

27.  On 19 June 2015, the CEIC approved the Draft KTN OZP and the Draft FLN OZP, which are renumbered as S/KTN/2 and S/FLN/2 respectively upon approval (ie, the CEIC Decision).  The CEIC did not give any reasons for the CEIC’s Decision.

28.  On 28 July 2015, the applicant filed the Form 86 in person, challenging the TPB Decision.

C.   THIS LEAVE APPLICATION

C1.   The proposed grounds of judicial review

29.  There is only one proposed ground of judicial review raised against the TPB Decision.[7]

30.  It is said that there was a significant number of TPB members who were absent for a substantial number of the Open Sessions for the Representations but participated in the Deliberation Sessions in making the TPB Decision (ie, in deciding to submit to the CEIC for approval the Draft OZPs without any amendments).  In the premises, in the absence of sufficient evidence from the TPB to show that all these TPB members who participated in the final deliberation and decision-making of the TPB Decision were apprised of all the Representations (in particular those proposing amendments to the Draft OZPs), the TPB Decision is tainted with procedural irregularity and should be quashed and remitted back to the TPB for reconsideration.  The applicant relies on Hysan Development Co Ltd v Town Planning Board (CACV 232 & 233/2012, 13 November 2014, per Lam VP, Chu JA and Au J) (“the Hysan Judgment”) at paragraphs 174 ‑ 185, and Real Estate Developers Association v Town Planning Board [2015] 2 HKC 327 at paragraphs 99 - 105 (applying the Hysan Judgment) to support this ground (“Ground 1”).

31.  In relation to the CEIC Decision, in approving the Draft OZPs as proposed and submitted by the TPB, the applicant submits that the decision is likewise tainted by the procedural regularity underlying the TPB Decision, in particular when the CEIC has not provided any reasons for the decision.  It must therefore also be quashed.  The applicant relies on Smart Gain v Town Planning Board (HCAL 12/2006 & 12/2007, 6 November 2007) at paragraphs 119, 124 - 125, per A Cheung J (as the learned CHJC then was) to support this ground (“Ground 2”).

C2.   Are the grounds reasonably arguable

32.  The court should only grant leave if the proposed grounds of judicial review are reasonably arguable with a realistic prospect of success.

33.  I accept Mr Mok’s primary submissions that Ground 1 is without merits and not reasonably arguable.

34.  As explained in the Hysan Judgment at paragraph 175(e) and (f), in a complaint like the present one, the crucial question that the court should look at is this: whether the TPB has provided “appropriate evidence” to show on a balance of probabilities that those members who had been absent from some of the Open Sessions (if established) but participated in the final deliberation and the decision-making of the TPB Decision have by way of alternative measures been apprised of or made aware of the contents of those parts of the Representations which had been put forward during their absence.  See also: Oriental Generation Ltd v Town Planning Board (CACV 127/2012, 13 November 2014, per Lam VP, Barma JA and Poon J (as he then was)) at paragraph 127 (“the OGL Judgment”).

35.  In the present case, I am satisfied that there is such evidence.  My reasons are these.

36.  By way of the Affirmation of Lee Kai Wing, Raymond, the TPB has set out the measures it has adopted to provide its members all the Representations made in the Open Sessions for them to look at before the TPB convened the final deliberations at the Deliberation Sessions.  These measures are deposed to at paragraph 26 of Mr Lee’s Affirmation as follows:

26. To facilitate Members’ understanding on the concerns and grounds of representations and comments made by the large number of representers and commenters, the following measures were undertaken by the Board:

(a) The TPB Papers (Exhibits [TKK-1], [TKK-2], [TKK-3] and [TKK4]) in respect of the consideration of the representations and comments were distributed to all TPB members on 30 September 2014, before the first session of the 1069^th TPB meeting held on 8 October 2014. The major grounds of representations and comments and the responses of the concerned government bureaux and departments were set out in the TPB Papers. All the representations and comments in Group 1 and Group 2, those representations and comments containing major points/issues (including samples of those representations and comments in standard letters/emails) in Group 3 and Group 4, summaries of the representations and comments and PlanD’s responses, as well as the major points of the representations and comments were provided as Annexes of the TPB Papers. A CD-ROM containing all the written submissions of the representations and comments of the four groups was attached at Annex IX of TPB Paper No. 9748 [Exhibit TKK-4].

(b) The contents of the TPB Papers were presented by PlanD’s representative on 8 October 2014 (i.e. the first day of the hearing for Groups 1, 2 and 3) and 13 October 2014 (i.e. the first day of the hearing for Group 4)[8] in front of the Board, the representers, commenters and their representatives [Exhibit TKK-5]. As shown in the minutes of open sessions of the TPB meeting [Exhibit TKK-5], the representers, commenters and their representatives had made presentations during the four groups of hearings. According to the ‘Guidance Notes on Attending the Meeting for Consideration of the Representations and Comments in respect of the Draft Kwu Tung North OZP No. S/KTN/1 and Draft Fanling North OZP No. S/FLN/1’, the oral submission made by representers, commenters and their representatives should be confined to the ground of representation/comment already made to the Board during the exhibition period of the OZPs or the publication period of the representations. There is hereby produced and shown to me marked as Exhibit ‘LKWR-1’ a copy of the said Guidance Notes. Furthermore, at the beginning of each hearing session, the Chairman of the Board when explaining the hearing procedures to the representers, commenters and their representatives, had also reminded them that their oral submissions should be confined to the grounds of representation/comment in the written representations/comments already submitted to the Board. After the presentations of PlanD’s representative(s), the representers, commenters and their representatives, Members had been actively engaged in the question and answer sessions in the open meeting sessions as well as the deliberation sessions.

(c) The draft minutes of all the 45 meeting sessions held from 8 October 2014 to 4 March 2015 were provided to Members in batches through email on 10 April 2015, 17 April 2015 and 20 April 2015 for reference and were confirmed on 28 April 2015 prior to the first deliberation session held on the same day [Exhibit TKK-6]. The video recordings of the open meeting sessions had also been provided to Members on 15 October 2014, 24 October 2014, 17 November 2014, 20 January 2015, 29 January 2015 and 6 March 2015 prior to the first deliberation session held on 28 April 2015. These measures further enabled Members of the Board to be apprised of the oral representations if they were absent from any of the previous meeting sessions. Some representers, commenters and their representatives made their oral presentations with the aid of Powerpoint, video and/or visualiser. Since video recordings[9] were sent to Members, they could both hear the oral submissions and watch the presentations using Powerpoint, video and/or visualiser in the video recordings. Likewise, interactive questions and answers between Board members and representers, commenters and their representatives had been recorded by the video.

(d) During the deliberation session on 28 April 2015, the Chairman of the TPB recapitulated the major points made by the representers and commenters in their written and oral submissions issue by issue in the four groups of hearings. I also assisted in presenting the major points and specific proposals raised by the representers in Group 3 with the aid of plans and the layouts/drawings submitted by the representers (paragraphs 177, 180, 186 and 192 of the minutes of 28 April 2015 [Exhibit TKK-6]). As regards Members who were absent in part of the meeting, in addition to the video recordings and the written minutes sent to Members prior to the deliberation sessions, the Chairman's summaries of the main arguments further reinforced Members’ knowledge of the relevant materials for consideration of the representations and comments. Members of the Board had gone through the responses of the relevant government bureaux/departments (contained in the TPB papers and given at the meeting) and were fully aware of the respective arguments from the representers/commenters and the Government.”

37.  Thus, in summary, as submitted by Mr Mok, all the TPB members had the benefit of:

(1) The TPB Papers in respect of the consideration of the representations and comments were distributed to all members on 30 September 2014, before the first of the Open Sessions.

(2) Live presentation of the contents of the TPB Papers by Planning Department’s representative on 8 October 2014 and 13 October 2014 in front of the Board.  Additionally, the video recording of the presentations was uploaded to the Board’s website, so all members could view or review the presentations as appropriate.

(3) Draft minutes of all the Open Sessions.  These were provided to members in batches on 10, 17, and 20 April 2015, and were confirmed on 28 April 2015 prior to the first of Deliberation Sessions held on the same day.

(4) Video recordings of the Open Sessions, provided to members on 15 and 24 October 2014, 17 November 2014, 20 and 29 January 2015, and 6 March 2015 before the Deliberation Sessions.

(5) Recapitulation by the Board Chairman during the deliberation session on 28 April 2015 of the major points previously made by the representers and commenters in both written and oral submissions.

38.  In my view, the above evidence at it presently stands sufficiently demonstrates that the TPB members participated in the Deliberation Sessions had been adequately apprised or made aware of the contents of the Representations.

39.  Mr Pun however argues that this evidence even taken to the highest is not sufficient.  This is so because there is no evidence at this stage to show that the members after receiving all those materials provided by the TPB had in fact gone through them at all or in detail.  He says unless and until each and every member who had been absent from some of the Open Sessions but participated in the final deliberations has filed an affirmation to confirm that he or she had gone through those materials in detail, the TPB has still failed to prove that they had adequately been apprised of the contents of the Representations.  Leading counsel therefore submits that, with the evidence as presently stands, Ground 1 is obviously reasonably arguable and leave should be granted.

40.  In this respect, Mr Pun relies on the Hysan Judgment and says the Court of Appeal in that case (“the Hysan Case”) allowed the judicial review on the basis that there was insufficient evidence to show that the relevant members were apprised of the detailed and substantial materials and presentations provided by the representers at the public meeting as there was no evidence to show that the members had “read” or “reflected” on those materials.  In support, Mr Pun draws my attention specifically to the following observations at paragraph 173 of the Hysan Judgment:

“…Whilst we must proceed on the basis that all the members had read the relevant TPB papers which had fully summarised the issues based on the pre-hearing representations and set out the responses of the Planning Department and its recommendations, it remains a fact that they did not have any opportunity before the hearings to read or reflect on the very substantial materials presented by Hysan at the meetings.” (emphasis added)

41.  Mr Pun therefore says unless there is evidence to show in the present case that the relevant members had “read or reflected” on the materials now sent to them before the Deliberation Sessions, there is still insufficient evidence to prove that they had been fully apprised of the contents of the Representations, which were similarly very substantial and technical in nature.

42.  With respect, I am unable to agree.

43.  It must be noted that the Court of Appeal’s above conclusion in the Hysan Judgment is a case-specific one, based on the particular circumstances of that case.

44.  In the Hysan Case, the relevant TPB meeting was held from 10:00am on 11 March 2011 until after 11:00pm, with only half an hour lunch break.  Further, it was only shortly before the meeting that the TPB members were given the large amount of additional papers and materials (including expert reports) submitted by the representers, including Hysan, which were related to the representations they were going to make at the meeting.  The representers then made substantive oral representations at the meeting with slideshows and graphic presentations.  The TPB then held the deliberation session in private right after that day-long meeting.  The deliberation ended at 00:15am on 12 March 2011.  Moreover, the reasons given by the TPB in support of the decision were the same as that stated in the TPB papers submitted by the Planning Department before the relevant meeting and the oral representations were made, and there was nothing in those reasons to address any of the specific issues which were only raised by way of the representations made at the meeting.

45.  Clearly with these particular circumstances of the case in mind, the Court of Appeal highlighted at paragraph 171 that the conclusion it had reached was premised on the particular relevant objective circumstances of that case, which are “the long sitting hours [of the meeting], the substantial and technical nature and the volume of Hysan’s representations, the fact that the members had not been afforded time to read the materials tabled by Hysan on their own, together with the limited time to digest and consider those representations, together with the omissions in the reasons given by the TPB to address some of the pertinent issues raised in Hysan’s representations.”

46.  The Court of Appeal then said these at paragraph 172:

“172. We do not lose sight of the fact that Hysan put in their written materials very close to the meeting. We also understand that the TPB had a tight schedule and it might be difficult to match the diaries of the unofficial members to get them back together in the not too distant future if the meeting were adjourned without completion of the business. But there are limits to human capacity, and it has to be recognized that there would come a point when members’ level of concentration would drop. Having said so, we do not think one should adopt a rigid and mechanistic approach and prescribe that a continuous sitting hour of more than a certain number of hours will result in procedural unfairness. That is a wrong approach. But the excessive length of a hearing is a factor when one assesses the overall fairness of the proceedings. In the present case, the length of the hearing on 11 March 2011 (coupled with the complex issues that it had to deal with, not only in respect of Hysan’s sites but other sites as well) does cast some doubt on the extent to which members of the TPB could have properly considered the representations at the end of such a long session which required their intense attention. Whilst the length of the hearing per se may not be enough to vitiate the process on the ground of unfairness, the complexity of the issues at hand, the scope of the hearing and the lack of time to read and digest the written materials placed before the members at the meeting are also significant in the present case. It is against that light we examine the other factors urged upon us by Mr Yu.” (emphasis added)

47.  In gist, as submitted by Mr Mok, the principal underlying basis for the Court of Appeal’s conclusion in the Hysan Case is that, given the lack of reasonable opportunities before the meeting for the TPB members to read and digest the voluminous materials (some of which were of technical nature), coupled with the fact that the reasons given by the TPB did not show that any of the issues raised in the meeting by the representers had been considered and addressed since those reasons were exactly the same as those provided in the TPB papers submitted before the meeting, the court was not satisfied that there is sufficient evidence to show that the participating members had been fully apprised of the contents of the representations by any alternative measures or otherwise.

48.  These are very different from the present case.

49.  Here, the deliberations took place on 28 and 29 April 2015, more than a month after the last of the Open Sessions.  The members were provided with all the materials presented at the various Open Sessions in batches on 10, 17 and 20 April 2015.  In other words, unlike the extreme situation in the Hysan Case (where the members were only provided with the substantial representation materials just before the meeting), the members in the present case had between 7 to 17 days to read and reflect on those materials before the Deliberation Sessions.  In the premises, unlike in the case of Hysan, the TPB members in the present case had been given reasonable opportunities to read and digest the contents of the representations made at all the Open Sessions.  In this respect, as emphasised by the Court of Appeal, one must also first proceed on the basis that the members had read these materials before the Deliberation Sessions (see: Hysan Judgment at paragraph 173 (as quoted above)).

50.  The objective position that the members were conscious of the contents of these materials sent to them before the deliberation is further buttressed by the objective facts that (a) they are mostly professionals and experts in the area of town planning and are expected to be able to digest those materials efficiently; (b) they had already been briefed on the effect of the Hysan Judgment and OGL Judgment and were fully aware of their duty to get apprised of the materials presented at the meetings before deliberations;[10] and (c) as rightly and fairly accepted by Mr Pun, the reasons given in the TPB Decision are not the same as those stated TPB Papers submitted by the Planning Department before the various meeting, which reflects that the members in reaching the decision also sought to address issues raised by way of the representations made at the Open Sessions.

51.  When considered in the context of the above very different objective circumstances, it is clear to me that the evidence in the present case constitutes sufficient objective proof that those members taking part in the final deliberations and decision making process of the TPB Decision had been adequately apprised or made aware of the contents of the Representations by alternative measures.  There is therefore no question of the procedural irregularity or unfairness as contended for by the applicant.

52.  This ground is not arguable and leave for judicial review should be refused.[11]

53.  Ground 2 is premised fundamentally on the success of Ground 1.  Given that I have found Ground 1 not reasonably arguable, Ground 2 therefore must be equally so.  I would therefore also refuse to grant leave to judicially review the CEIC Decision under Ground 2.[12]

C3.   Time extension

54.  As I mentioned above, the applicant seeks an extension of time to apply for leave to challenge the CEIC Decision based on Ground 2.

55.  Given my above conclusion that Ground 2 has no merits, I would on this basis alone refuse to extend time.

56.  In any event, I also find that the delay is not excusable.

57.  The applicant explains[13] the delay on the basis that (a) at the time when he first filed the leave application in person at the end of July 2015, he was not aware of the fact that there was the CEIC Decision; and (b) it was only after he was given legal aid in late October 2015 and his solicitors and counsel had had the proper opportunity to review his case and the papers did they realise that there was the CEIC Decision and advise the applicant to also challenge the CEIC Decision.  The legal representatives then promptly prepared the AF86 seeking also to challenge the CEIC Decision based on Ground 2.

58.  I agree with Mr Mok that these are explanations cannot properly excuse or justify the delay:

(1) The Ordinance expresslyinformed the applicant and his lawyers that the Draft OZPs must be submitted to the CEIC for his approval: section 8(l).

(2) The Ordinance expresslyinformed the applicant and his lawyers the time-frame within which such submission must be made.  Even on the basis that the CEIC had given an extension of time under section 8(2) of the Ordinance, the deadline for submission of the Draft OZPs to the CEIC would have been 20 May 2015 (being nine months plus six months from 20 February 2015 – the latter being the expiry of the 2-month period for the public inspection of the Draft OZPs): see AF86 at paragraph 3.

(3) The above made it plain to the applicant and his lawyers that the CEIC could have approved the Draft OZPs under section 9(l) of the Ordinance at any time after20 May 2015.

(4) The Ordinance also expresslyinformed the applicant and his lawyers that any such approval would have been Gazetted: section 9(5).

(5) The publicly available Gazette informed the applicant and his lawyers that, on 19 June 2015, it was publicly announced by Gazette that the CEIC had approved the Draft OZPs on 16 June 2015: Affirmation of Raymond Lee, at paragraph 20.

59.  With the lack of merits in the proposed judicial review and the lack of reasonable excuse for the delay, the application for extension of time must similarly be refused on this basis.

D.   CONCLUSION

60.  For the above reasons, I would refuse the leave application.

61.  I would also make an order nisi that there be no order as to costs in this application.  The applicant’s own costs be taxed in accordance with legal aid regulations.

62.  Lastly, I thank counsel for their helpful assistance in this matter.