HONG KONG HOUSING SOCIETY AND ANOTHER v. WONG NAI CHUNG t/a SUN CHUNG FLOWER SHOP

DCCJ 3620/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3620 OF 2007 

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J U D G M E N T

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The claim

1. In this action, the Plaintiffs claim that the Defendant has failed to deliver vacant possession of a property which has been resumed by the Government.  The Plaintiffs seek an order for vacant possession and also mesne profits.

2. On 7 July 2005, the Lands Department issued a notice of resumption (“the Notice of Resumption”) in respect of the implementation of development proposal K21 (“K21”) for urban renewal, which covered various lots of land including No. 494 Fuk Wing Street, Sham Shui Po, Kowloon.  According to the Notice of Resumption, the Chief Executive had ordered that such lots of land “shall be resumed and revert to the Government” for a public purpose on the expiration of 3 months from the date of the affixing of this notice to the land affected.

3. At all material times and until the Government’s resumption of the land as stated above, the Defendant was the tenant of the property known as cockloft and other common areas therein, No. 494 Fuk Wing Street, Sham Shui Po, Kowloon (“the Property”), which was subject to K21.

4. The Notice of Resumption was published in the Government Gazette on 15 July 2005.  There is no dispute that the Notice of Resumption was affixed on the Property and was also brought to the attention of the Defendant.  Pursuant to the Notice of Resumption and s. 4(3) of the Land Resumption Ordinance (Cap. 124), the Property was resumed and reverted to the Government on 15 October 2005.  However, the Defendant has refused to vacate.

Application for summary judgment

5. On 22 January 2008, the Plaintiffs issued a Summons for an application for summary judgment against the Defendant.  On 11 June 2008, it was ordered by Master K. Y. Lo that the Plaintiffs’ Summons be heard together with another application for summary judgment in DCCJ 306/2007 relating to a similar dispute in respect of a different property occupied by another person.  On 11 August 2008, I heard both applications.  However, by a Consent Summons filed on 29 October 2008, the parties in DCCJ 306/2007 applied to settle the dispute and an order was made on 14 November 2008.  As DCCJ 306/2007 has already come to an end, it is only necessary for me to deal with DCCJ 3620/2007 in this judgment.

The legislative regimes:  Old and New

6. In 1997, the development proposal for K21, amongst some other development proposals, was prepared by the Land Development Corporation (“the Corporation”) (which no longer exists) pursuant to the Land Development Corporation Ordinance (“LDCO”) (which has been repealed).

7. In around 2000, the provisions of LDCO were considered not adequate or efficient enough to enable urban renewal programmes to be proceeded with at a reasonable pace.  The legislature then enacted a new ordinance, namely, the Urban Renewal Authority Ordinance (Cap. 563) (“URAO”) which came into effect in 2001.

8. By virtue of URAO, the Urban Renewal Authority (“the Authority”) was established to replace the Corporation as the body corporate having the primary responsibility of “improving the standard of housing and the built environment of Hong Kong by undertaking, encouraging, promoting and facilitating urban renewal” (URAO, s. 5(a)).  Further, there are specific provisions in s. 36 of URAO which deal with those projects which were prepared but uncompleted by the Corporation under the repealed LDCO.

9. Before going into the details of the issues raised in this application, it is important to note that the Defendant’s primary argument centres upon whether all the necessary statutory requirements (under both the old and current law) have been satisfied by the authorities in the implementation of the development proposal in question.  Hence, it is necessary to examine the relevant statutory provisions under both legislative regimes.

Relevant provisions under the repealed LDCO

10. Section 5(2)(b) of the old LDCO expressly empowered the Corporation to, inter alia, “prepare development proposals and implement such proposals”.  The Corporation also had the power, according to s.13 of LDCO, to prepare “development schemes for any area within which the Corporation may acquire property”.  Whilst LDCO did not specify any distinction between “development proposals” and “development schemes”, “development schemes” generally referred to projects which were bigger in nature and scale as they were required to go through town planning procedures.

11. Further, s. 15(1) of the old LDCO provided that the Corporation may apply to the Secretary (defined as the Secretary for Planning, Environment and Lands in s.2 of LDCO) “requesting him to recommend to the Governor in Council the resumption of land under the Crown Lands Resumption Ordinance” and this provision also set out the requirements which would need to be satisfied for the purpose of implementing the development proposals.   In particular, ss. 15(4) and (5) provided as follows:-

“(4)   The Secretary shall not make a recommendation in pursuance of subsection (2)(b)-

(a)   unless the development proposal may lawfully be implemented by virtue of the provisions of any draft or approved plan for the purposes of the Town Planning Ordinance (Cap 131) and, in the case where by virtue of such plan, permission under section 16 of that Ordinance is required for that implementation, the permission required has been obtained;

(b)   unless the application for resumption is accompanied by a statement-

(i)    setting out how the Corporation intends that the proposal will be implemented, including whether implementation will be by the Corporation alone, or the Corporation in association with another person and in relation to land within the boundaries of the proposal, what portion of the land is owned or leased by the Corporation and what arrangements have been made or are contemplated by the Corporation and what arrangements have been made or are contemplated by the Corporation for the acquisition of any land not so owned or leased;

(ii)   containing an assessment by the Corporation as to the likely effect of the implementation of the proposal, including, in relation to the residential accommodation of persons who will be displaced by the implementation of the proposal, an assessment as to whether or not, insofar as suitable accommodation for such persons does not already exist, arrangements can be made for the provision of such residential accommodation in advance of any such displacement which will result as the proposal is implemented; and

(c)   unless he is satisfied that the Corporation has taken all reasonable steps to otherwise acquire the land including negotiating for the purchase thereof on terms that are fair and reasonable.

(5)   For the purpose of this section, in considering whether or not the Corporation has negotiated for the purchase of the land on terms that are fair and reasonable, the Secretary may consult any person not being a public officer from whom he considers may be able to assist him in forming an opinion on which to base his decision in respect of that negotiation.”

Relevant provisions of URAO

12. I have already referred to s.5(a) of URAO which stipulates that one of the purposes of the Authority is to replace the Corporation in order to continue to improve “the standard of housing and the built environment of Hong Kong by undertaking, encouraging, promoting and facilitating urban renewal”.  The Authority is given power, by virtue of s.6, to do anything so as to attain the intended purposes, including power:-

(1)    to enter into contracts or other agreements with any person;

(2)   to prepare draft corporate plans and draft business plans in relation to its programme of proposals to be implemented.; and

(3)   to implement development “projects”.

13. According to s.2 of URAO (see also s.6(2)(d)), “project” means:-

“(a)   a development scheme of the description mentioned in section 25;

(b) a development project of under section 26;

(c)  the continuation and completion of a development proposal under section 36(4);

(d) the continuation and completion of a development scheme under section 36(7).”

14. Similar to s.13 of LDCO, s.25 of URAO also requires a development scheme to go through the town planning procedures.  Hence, development schemes under URAO likewise refer to projects which are larger (in both nature and scale) than development projects.   In view of the meaning of “project” as defined in s.2 of URAO, the Authority is responsible for dealing with all development projects which are (if I may adopt the words used by both leading counsel in their submissions) “old and new, large and small”.

15. Section 36 of URAO contains transitional provisions and specifies the extent to which the old law may still apply to development proposals and schemes which had been prepared before URAO came into effect.  In the present case, we are dealing with the continuation and completion of a development proposal for K21 which was prepared by the Corporation under the old legislative regime.  Both the Plaintiffs and the Defendant have referred to this development proposal as an “inherited proposal”.  Section 36(4) makes it clear that such an inherited development proposal may be “continued and completed” by the Authority “as if [LDCO] had not been repealed and the powers and duties of [LDCO] shall be exercised and performed by the Authority”.  Hence, in view of s. 36 of URAO, the time factor (as to when the development proposal was made) is material when one comes to determine what statutory requirements would need to be met for the purpose of its implementation.

16. What is perhaps more important to the Defendant’s case stems from ss. 20 and 21 of URAO.

17. Section 20 provides that the Secretary (defined as the Secretary for Development in s.2 of URAO) may prepare from time to time an urban renewal strategy (“the Strategy”) “relating to the carrying out of urban renewal”.  In November 2001, the then Secretary for Planning and Lands prepared the Strategy and issued the same to the Authority.  The Strategy contains provisions to the effect that a social impact assessment should be carried out before implementing a development project.  One of the Defendant’s contentions is that the Authority failed to carry out such a social impact assessment and hence, the Notice of Resumption (which was issued in the absence of such an assessment) is unlawful and invalid.  I will go into the details of the argument shortly.

18. Section 21 requires the Authority to, not later than 3 months before the end of each financial year, submit to the Financial Secretary for approval a draft corporate plan for a period of 5 years.  The draft corporate plan should cover programme of proposals for development projects to be implemented pursuant to ss. 25 and 26 of URAO and also programme of implementation for development proposals and schemes made under the old LDCO (see URAO, s.21(1)(a) and (b)).  In the context of “corporate plan”, s.21(3) provides that the Authority, when preparing its programme of proposals, shall follow the guidelines set out in the Strategy and also include proposals of projects to the extent as set out in the Strategy.  As will be discussed later, the Defendant’s case relies heavily on s.21(3) of URAO.

19. At the same time when the draft corporate plan is submitted, the Authority is required to submit a draft business plan which is supposed to be the most specific document with all the details of operation for the following financial year (see URAO, s. 22).

20. According to s. 23 of URAO, for the purpose of the implementation of a project, the Authority shall publish, in the Government Gazette and local newspapers, notice of the commencement date of the implementation of the project, together with the required information so as to keep the public properly informed.

21. It is, however, of significance to note that by reason of s. 23(5), the publication requirement only applies to projects made under URAO and is therefore not applicable to inherited projects made pursuant to LDCO.   Under s. 24, any person who will be affected by a project to be implemented has the right to raise objections by way of a written statement.

Procedures taken by authorities after the Corporation was replaced

22. As mentioned above, the development proposal in question was prepared by the Corporation.  However, since the Corporation was replaced by the Authority by virtue of URAO which came into effect in 2001, various steps have been taken by the authorities concerned for the purpose of implementing the development proposal and resuming the relevant lots of land.

23. In December 2002, the Authority and the Hong Kong Housing Society (“HKHS”) entered into a Memorandum of Understanding on Strategic Cooperation whereby it was agreed that various redevelopments projects (including K21) which were announced by the Corporation but remained uncompleted would be undertaken by the Authority in association with HKHS.

24. Project Implementation Agreements were signed by the Authority and the HKHS in April 2004 in respect of the projects including K21.

25. On 27 April 2004, a letter was issued for and on behalf of the Secretary for Housing, Planning and Lands (“the Secretary”) to the Authority whereby it was stated that pending the Authority’s submissions of the applications for land resumptions in respect of the projects in question, the Secretary, pursuant to s.36(5) of URAO, has agreed to treat ss.15(4)(c) and 15(5) of the repealed Ordinance (i.e. the provisions regarding the requirements for negotiations for purchase of the land on fair and reasonable terms) as having no application.

26. By letter dated 30 November 2004, HKHS requested the Authority to make an application to the Secretary under s.15(1) of the repealed Ordinance for the purpose of asking the Secretary to recommend to the Chief Executive in Council the resumption of, amongst others, the properties covered under K21 (including the Property).  In the same letter, HKHS:-

(1)   set out the particulars of the target properties in question such as the total site area, the number of buildings standing within the project boundary and the total existing bulk, etc;

(2)   referred to, amongst others, data collected from the survey for identifying re-housing needs of the residents living within the project boundary and also information on the reserved re-housing units from the Hong Kong Housing Authority and HKHS; and

(3)   attached documents containing the data referred to in sub-paragraph (2) above.

27. By a letter dated 17 December 2004, the Authority wrote to the Secretary:-

(1)   referring to the letter dated 30 November 2004 from HKHS to the Authority (mentioned above) and attaching a copy of the same;

(2)   stating that the Board of the Authority had given its approval for the submission of the request for resumption regarding the properties covered by the relevant projects including K21; and

(3)   requesting the Secretary to recommend to the Chief Executive-in-council resumption under section 15(1) of the LDCO and also requesting him to confirm that sections 15(4)(c) and (5) of LDCO (regarding the requirements for the Corporation to take steps to negotiate for the intended purchase of the properties on fair and reasonable terms) would be treated as having no application.

28. The Secretary made the recommendation to the Chief Executive and the Notice of Resumption was issued accordingly.

The Defendant’s case

29. In the light of the relevant statutory provisions, the Defendant’s primary case can be summarised as follows:-

(1)    According to s.21(1)(a) and (b) of URAO, the corporate plans cover not only the development projects made by the Authority pursuant to URAO, but also development proposals and schemes made by the Corporation under the repealed Ordinance.  Further, as referred to earlier, the Defendant heavily relies on s.21(3) of URAO which provides:-

“The Authority, when preparing its programme of proposals and its programme of implementation for projects –

(a)   shall follow any guidelines set out in an urban renewal strategy prepared under section 20(1) in relation to the implementation of those proposals and projects;

(b)  shall, as far as is practicable, include proposals of projects of the description mentioned in section 6(2)(d) to the extent as may be set out in such an urban renewal strategy…”

(2)    The Defendant has also referred me to s.22(4) of URAO which reads:-

“The Authority shall not implement any development proposal or development scheme of the description mentioned in section 6(2)(d)(iii) and (iv) not included in or covered by the corporate plan or the business plan, whether it is to be implemented by way of a development scheme under section 13(1) of the repealed Ordinance or by way of a development proposal under section 5(2)(b) of the repealed Ordinance, except with the prior approval of the Financial Secretary.”

(3)    The combined effect of ss.21(1)(b), 21(3)(a) & (b) and 22(4), as submitted by the Defendant, is that the Secretary is required to ensure that the inherited proposals (i.e. proposals made by the Corporation under the repealed Ordinance) could only be implemented in a manner consistent with the standard set out in the Strategy.

(4)    By virtue of s.36(4) of URAO, the Authority is required to continue and complete the inherited development proposals and schemes (as if LDCO had not been appealed).  In the circumstances, the Authority is required to replace the Corporation in order to apply to the Secretary (as required under s.15 of repealed Ordinance) “requesting him to recommend to the Governor in Council the resumption of land”.  In view of subparagraph (3) above, it is the Defendant’s contention that in applying to the Secretary for such a recommendation (albeit pursuant to the repealed Ordinance), the Authority should still comply with the Strategy.

(5)    By reason of the matters set out in subparagraphs (1) to (4) above, the Defendant’s case is that when the Secretary was asked to make a recommendation for land resumption in respect of K21 (by letter dated 30 November 2004 from HKHS), the assessment provided to the Secretary failed to comply with the Strategy.  Hence, the Secretary’s subsequent recommendation did not satisfy s.15(4)(b)(ii) of the repealed Ordinance.  What should follow, according to the Defendant, is that the Notice of Resumption (which was issued after taking into account the Secretary’s recommendation) is unlawful and invalid.

(6)    Finally, the Defendant has taken one step further to argue that even on the assumption that the Strategy did not apply, the assessment provided to the Secretary failed to comply with s.15(4)(b)(ii) of the repealed Ordinance.  Hence, the Notice of Resumption is, in any event, invalid.

The Defendant’s burden

30. The Defendant’s arguments involve both questions of law and fact.  In order to successfully oppose this application, the Defendant is required to discharge the burden of demonstrating either an arguable question of law or a factual dispute which is believable.

31. After considering all relevant materials, I find the Defendant’s case untenable for the following reasons.

Section 21 of URAO

32. Section 21 of URAO deals with the corporate plans required to be submitted to the Financial Secretary.  It is obvious from s. 21(1)(a) and (b) that the corporate plans cover (1) “programme of proposals to be implemented” for development schemes and projects under URAO and (2) “programme of implementation for development proposals and development schemes” made under the repealed Ordinance.

33. When s.21(3) talks about what the Authority needs to do “when preparing its programme of proposals and its programme of implementation for projects”, it clearly refers to the preparation of such programme for the purpose of submitting the draft corporate plan.  In the Defendant’s case, there is no complaint about the contents of the corporate plan. According to paragraph 14 of the Defendant’s “Supplemental Affirmation in reply” dated 28 July 2008, there seems to be no dispute that the development proposal in question has been covered in a corporate plan.  In fact, there is no evidence that the corporate plan has failed to comply with any statutory provisions.

34. What the Defendant has alleged is that owing to the wording of s. 21(3), the Authority and the Secretary are required to comply with the Strategy when dealing with the recommendation for land resumption.  Nevertheless, s. 21(3) simply does not touch on what needs to be done for the purpose of such recommendation.  In respect of the development proposal for K21 in the present case which was made by the Corporation, as I have mentioned above and I will come back to this issue again later, the issue of recommendation is specifically governed by s.15 of the repealed Ordinance, as a result of s. 36(4) of URAO.  URAO contains nothing to the effect that the Authority and/or the Secretary are required to follow the Strategy when they deal with the recommendation for land resumption.  In my opinion, it takes a quantum leap of logic for the Defendant to say that by virtue of s. 21(3) of URAO (which is confined to matters concerning the corporate plans), a recommendation for land resumption can only be made if it complies with the Strategy.

The Strategy

35. Even on the assumption that s.21(3) is somehow relevant to the issue of recommendation and other matters concerning the actual implementation of the development proposal, one still has to examine whether the Strategy applies to the inherited proposal in question.

36. Before I deal with the contents of the Strategy, it should be noted that the Defendant’s primary complaint relates to s.21(3)(a) of URAO in respect of whether the guidelines set out in the Strategy have been complied with.  However, the Defendant has also made submissions on s.21(3)(b).  Although s. 21(3)(b) refers generally to the projects under s. 6(2)(d) without making any distinction between the inherited projects and the current projects, it only requires the Authority to include the proposals to such extent as set out in the Strategy.  There is no evidence that the Authority did not include the appropriate proposals in the procedures leading to the Notice of Resumption.

37. According to the Strategy, a “people-centred” approach should be used to carry out urban renewal and the Government has to balance the interest and needs of all sectors of the community for the purpose of improving the quality of life of residents in urban area (see paragraph 3 of the Strategy).  The Strategy also sets out the key principles underlying the Government’s approach to urban renewal and the main objectives of urban renewal (see paragraphs 4 and 5 of the Strategy).

38. The Strategy refers to developments projects made under both the repealed Ordinance and URAO.  In particular, the Strategy provides that priority should be given to the 25 uncompleted projects of the Corporation (i.e. the inherited projects) since the residents in those projects have waited for redevelopment for quite some time (see paragraph 13 of the Strategy).

39. What is more important to the present dispute is that the Strategy requires the Authority to carry out a social impact assessment for the purpose of fully assessing the social impact of a proposed project and the social and rehousing needs of the residents affected (see paragraph 28 of the Strategy).  It transpires from paragraphs 30 and 31 of the Strategy that the main elements of such a social impact assessment should include matters  such as the population characteristics, the socio-economic characteristics, the housing conditions, the characteristics of local business activities, the degree of overcrowding, the availability of amenities, the historical background and the cultural and local characteristics, etc.

40. Mr. Anderson Chow, SC (for the Plaintiffs) has submitted that the Strategy, insofar as the social impact assessment is concerned, is only applicable to the development schemes and projects made by the Authority under URAO.  I agree for the following reasons:-

(1)   The Strategy requires that the social impact assessment should be carried out in two phrases:  (a) a non-obtrusive assessment to be conducted before the publication of the proposed project in the Government Gazette and (b) a detailed assessment after the proposed project has been published in the Government Gazette.  According to paragraph 32 of the Strategy, the factual data for the detailed social impact assessment should be collected immediately after the publication of the proposed project in the Government Gazette.

(2)   It is therefore plain that the social impact assessment is intended to apply only to proposed projects which need to be published. We have seen above that s.23 of URAO (which concerns publication of the proposed project) is confined to development projects and schemes made under ss. 25 and 26 of URAO (and does not apply to the inherited proposals).  There is nothing in the Strategy which provides that the requirements for the social impact assessment apply to the inherited proposals (which do not need to be published).

41. In answer to the matters set out in paragraph 39 above, Mr. Martin Lee, SC (for the Defendant) submitted that the Strategy is only an administrative document and not a piece of legislation and that as there is an apparent conflict between the Strategy and s.21(3) of URAO, the statutory provision should prevail.

42. I do not accept the Defendant’s argument.  I am of the view that there is no apparent conflict between the Strategy and s.21(3) of URAO for the following reasons:-

(1) Section 21(3) expressly states that the Authority shall follow the guidelines set out in the Strategy and also include proposals of projects to the extent as may be set out in the Strategy.  In other words, the Authority should only be required, under s.21(3) of URAO, to follow the Strategy to such an extent as the Strategy provides.  One then has to look at the provisions of the Strategy in order to ascertain how far the Authority should follow the same.  However, the requirements for the social impact assessment (together with the relevant guidelines) provided in the Strategy, as analysed above, are clearly intended to apply only to the proposed projects made under the current legislative regime (as opposed to the inherited proposals made under the repealed Ordinance).

(2) The fact that the social impact assessment in the Strategy is not intended to apply to the inherited proposals is entirely consistent with the s.36(4) of URAO which reads:-

“Subject to subsections (5) and (6), where at the date of commencement of Parts II to VII of this Ordinance, a development proposal has been prepared in accordance with section 5(2)(b) of the repealed Ordinance, the development proposal may be continued and completed by the Authority as if the repealed Ordinance had not been repealed and the powers and duties of [the Corporation] shall be exercised and performed by the Authority.”

(3)    If it has been the legislative intent to allow the Authority to continue and complete the inherited proposals as if LDCO had not been repealed, it would be most unreasonable to require the Authority to comply with the requirements for the social impact assessment when such requirements simply did not exist when LDCO was still in force.

(4)    Finally, I repeat paragraphs 33 and 34 above regarding my view that s. 21(3) simply does not touch on what needs to be done by the Authority and the Secretary for the purpose of the recommendation for land resumption.

43. One may ask rhetorically (as the Defendant did in the course of submissions): Why should the proposed projects under the old and current legislative regimes be treated differently?   It has been contended by the Defendant such different treatments would lead to unfair results.  However, this issue eventually turns on the statutory provisions.  It is, I believe, simply a matter of history that URAO has introduced various matters which did not exist in the repealed Ordinance.  The publication requirement as stipulated under s. 23 of URAO is one obvious example.   Further, it would not be conducive to fairness and justice if the authorities concerned are, on the one hand, expressly allowed to continue and complete the inherited proposals by following the repealed Ordinance but are, on the other hand, forced upon additional requirements which only came into existence after the enactment of URAO.

44. In the circumstances, the Defendant’s submission that the Authority and/or the Secretary failed to comply with the requirements for the social impact assessment (as set out in the Strategy) in dealing with the recommendation for land resumption, in my view, has no merits.

Section 15(4)(b)(ii) of the repealed Ordinance

45. As mentioned above, according to s. 36(4) of URAO, the development proposal in question shall be continued and completed by the Authority as if LDCO had not been repealed.  Insofar as the issue of recommendation for land resumption is concerned, the relevant provision is s.15(4)(b)(ii) of LDCO.

46. According to s.15(4)(b)(ii) of the repealed Ordinance, the Secretary shall not make a recommendation for land resumption unless the application for resumption is accompanied by a statement “containing an assessment by the Corporation as to the likely effect of the implementation of the proposal, including, in relation to the residential accommodation of persons who will be displaced by the implementation of the proposal, an assessment as to whether or not, insofar as suitable accommodation for such persons does not already exist, arrangements can be made for the provision of such residential accommodation in advance of any such displacement which will result as the proposal is implemented”.

47. The Defendant has criticised that the letter dated 30 November 2004 from HKHS failed to contain an assessment required under s.15(4)(b)(ii).  The Defendant alleges that the letter merely referred to a survey of the housing needs of the people in the affected areas and such a survey did not amount to an assessment as to “the likely effect of the implementation of the proposal”.

48. Mr. Chow, in reply, submitted that the Defendant simply raised a matter of semantics by seeking to draw a distinction between “assessment” and “survey”.  In any event, the letter, as contended by Mr. Chow, contained an actual assessment which was more than just a survey.

49. It is clear to me that the information provided in the letter dated 30 November 2004 (together with its attachments) did, prima facie, contain an assessment referred to in s.15(4)(b)(ii) of LDCO for the following reasons:-

(1)   The letter first provided the particulars of the target properties in question such as the total site area, the number of buildings standing within the project boundary and the total existing bulk, etc.  Details of such information were contained in the documents marked Appendix I to Appendix III to the letter.

(2)   Appendix IV to the letter provided the “Estimated Re-housing Demand” on the basis of the data collected from an Occupancy Survey conducted between 30 April 2004 and 2 May 2004.  Such data (which contained information regarding the total number of households involved and the number of persons in the relevant households) obviously helped assess the re-housing needs.

(3)   In fact, Appendix IV went further to refer to information on the reserved re-housing units from Hong Kong Housing Authority and HKHS for eligible domestics Occupiers.  Hence, Appendix IV actually provided a demand and supply analysis relevant to an assessment for the estimated re-housing arrangements.

50. In the light of the above, there is no proper basis for the Defendant to suggest that the information provided in the letter dated 30 November 2004 (and its attachments) did not contain an assessment required under s.15(4)(b)(ii) of LDCO.

51. To complete the picture in this regard, I should point out that s. 36(4) of URAO is expressly subject to subsections (5) and (6).  Section 36(5) concerns the Secretary’s power to treat ss. 15(4)(c) and (5) of the repealed Ordinance (i.e. provisions regarding negotiation for purchase of the land to be resumed) as having no application.  Section 36(6) gives the Secretary the power to request the Authority to provide necessary information.  In the present case, there is no evidence to rebut the presumption that the Secretary has lawfully exercised its powers under such provisions (see Interpretation and General Clauses Ordinance (Cap. 1), s. 38).

Authorities cited by the Defendant 

52.   The Defendant has referred me to the House of Lords’ decision in Wandsworth London Borough Council v Winder [1985] AC 461 in support of the proposition that public law issues, in appropriate cases, can be raised as defences to what might be called “private law” claims.  I do not think there is any dispute in this regard.  However, as discussed above, I have already ruled against the Defendant’s arguments involving public law issues.

53.   The Defendant has also sought to argue that the delay in challenging an administrative decision (which is the subject matter of the defence to a “private law” action) is irrelevant to the merits of such a defence.  The Defendant has relied on the English Court of Appeal’s decision in Rhondda Cynon Taff County BC v Watkins [2003] 1 WLR 1864.  Given my ruling above, this issue has become irrelevant.  However, in passing, I wish to mention that Rhondda cannot be regarded as having laid down any general principle on the issue of delay.

54.   In Rhondda, the council confirmed a compulsory purchase order against a piece of land in July 1965.  In December 1965, the council served notice of entry and in March 1966, entered on the land and took possession.  The next day, the defendant repossessed the land and thereafter remained in occupation without being challenged.  In 1988, the council executed a deed poll vesting the land in itself.  The council, however, took no action for possession of the land until January 2000.  The defendant then filed a defence and counterclaim on the ground that he had been in possession adverse to the council since March 1966.

55.   The judge in the county court gave summary judgment for the council and struck out the defence and counterclaim after taking into account that there was immense delay on the part of the defendant in challenging the validity of the deed poll.

56.   The Court of Appeal reversed the county court’s decision on the basis that there was no reason to expect the defendant to challenge the validity of the deed poll after he had remained in possession of the property since March 1966 without any interference.  Hence, he was fully entitled to raise the public law issue as a defence to the council’s action for possession.  As expressed by Aikens J at p.1882H -1883B:-

“85   So the only point in this part of the case is whether the judge was right, as a matter of law, to hold that because of the immense delay in challenging the validity of the deed poll, it gave him a discretion to strike out this “public law” defence after considering all the relevant factors on whether the defendant could be permitted to proceed with it.

86    I must respectfully disagree with the judge on this point.  The council’s claim is for possession of the land and Mr Watkins challenges that claim.  If my analysis of the limitation issue is correct, then the only basis on which he can do so is by challenging the validity of the deed poll.  But before the current proceedings Mr Watkins enjoyed the possession of the land and that had not been challenged by the council for 34 years after he ousted the council on 15 March 1966.  If his possession was not being challenged (in court) by the council, then why should Mr Watkins have to take legal proceedings to question the validity of the deed poll?  I can see no reason why he should need to do so or be forced to do so.

87    But once his possession of the land was disputed by the current proceedings then why could he not raise the validity point as a defence to the claim for possession as a matter of right, even though it was nearly 12 years after the deed poll had been executed? …”

57.   Hence, it was against the above background that the Court of Appeal in Rhondda held that the delay in challenging the deed poll should not debar the defendant from running its defence and counterclaim based on adverse possession.  Such peculiar circumstances simply do not exist here.  In the present case, there is no reason why the Defendant could not or shall not have challenged, by way of judicial review, the validity of the Notice of Resumption shortly it was published in the Government Gazette and brought to his attention in July 2005.  In the circumstances, even on the assumption that the Defendant managed to raise an arguable public law issue, the delay (for which no explanation has been given) in challenging the decision would be a factor against the Defendant in this application.

Other arguments raised by the Defendant

58.   For the sake of completeness, in the following paragraphs, I will deal with some other arguments which have been raised in the Defendant’s pleadings and affirmations although they have not been further pursued in the submissions.

59.   The Defendant alleges that HKHS in a meeting held on 14 February 2007 agreed to stop all legal actions and that commencement of this action has been in breach of such an agreement.  The Defendant has also relied on the minutes of a meeting held on 27 April 2007.  However, according to the minutes of those meetings, although there were discussions on what parties could do in the hope that legal actions would not be necessary, no agreement or promise as alleged by the Defendant has been made.  In fact, it has been expressly recorded in the minutes of the meeting held on 14 February 2007 that HKHS could not make any promise that all relevant legal actions would be put on hold.

60.   The Defendant has referred to the letter dated 30 November 2004 from HKHS, in which it was stated that “[d]etails of the projects have been published and the public has been duly consulted under the relevant statutory provisions”.  The Defendant has complained that this part of the letter was misleading as the public have not been properly consulted.  The Defendant has referred to various declarations made by a number of persons (including the Defendant himself) whereby they claim that they have been affected by K21 but have never been consulted.   However, there is no dispute that details of the projects have been published and that members of the public could express their opinions on such projects.  The declarations simply cannot amount to any proof that no consultation has been conducted.  In any event, insofar as the letter is concerned, the most important question is whether it has complied with s.15(4)(b)(ii) of the LDCO.  I refer to paragraphs 49 and 50 above.

61.   Finally, the Defendant alleges that there has been “selective pursuit” of legal actions by the Government.  There is no evidence that the Government has only sued a particular group of people.  As pointed out by Mr. Chow, the Defendant’s case is that the Plaintiffs have chosen to bring proceedings against various parties by way of different actions at different times.  However, there is nothing which requires the Government to sue all relevant parties either at the same time or in one action.  This argument simply has no substance at all.

Conclusion

62.   By reason of the above matters, I come to the view that the Defendant has failed to raise any triable issue (either by way of an arguable question of law or a factual dispute which is believable).  I therefore order that judgment be entered against the Defendant on the following terms:-

(1)    Vacant possession of the Property (i.e. cockloft and other common areas therein, No. 494 Fuk Wing Street, Sham Shui Po, Kowloon) shall be delivered to the Plaintiffs.

(2)    The Defendant shall be liable to pay the Plaintiffs mesne profits for the period from 16 October 2005 to the date when vacant possession of the Property is delivered to the Plaintiffs.

(3)    The amount of mesne profits (as referred to in subparagraph (2)) together with interest (including the rate at which and also the period for which interest should be awarded) shall be assessed.

63.   I make an order nisi that costs of this action (including costs of and occasioned by this application and also costs previously reserved) be paid by the Defendant to the Plaintiffs with certificate for two counsel, to be taxed if not agreed.  I also order that the Defendant’s own costs be taxed in accordance with Legal Aid Regulations.