RE THOMAS LAI

HCAL 150/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 150 OF 2013

____________

____________

_______________

D E C I S I O N

_______________

I. INTRODUCTION

1.  Ever since the creation of country parks in Hong Kong in the late 1970s, there have been “country park enclaves”, ie areas which are surrounded by or adjacent to country parks but which are excluded from the parks.  In total there were 77 such enclaves.  These proceedings are an application for leave to apply for judicial review of a decision to incorporate one of these enclaves into an existing country park – to be specific, the decision of the Chief Executive in Council on 7 May 2013 to include approximately 17 hectares of land in Sai Wan (also known as Tai Long Sai Wan), hitherto an enclave, in the Sai Kung East Country Park.

2.  Because the application was made admittedly out of time, it is necessary for the applicant to seek an extension of time.  And because the extension sought is opposed by the putative respondent, I have called for an inter partes hearing given that the question of extension of time, if granted now, would not be revisited at the substantive hearing of the application for judicial review (R v Criminal Injuries Compensation Board, ex p A [1999] 2 AC 330 at 341D-F).

II.  THE BACKGROUND IN OUTLINE

3.  Sai Wan is situated on the eastern coast of the Sai Kung Peninsula.  It ranked top in the Best Ten Scenic Sites campaign organised by the Friends of the Country Parks in 2006.  Public attention was drawn to it in June 2010 when a complaint was made to the Agricultural, Fisheries and Conservation Department that excavation works and suspected building works were being carried out at a site in Sai Wan.  Three excavators and other machinery were sighted, as well as signs of soil excavation, pond formation, land levelling and turfing work.

4.  The site, consisting partly of private land and partly of Government land, is in an enclave (“Sai Wan enclave”) and hence not part of the Sai Kung East Country Park.  The Sai Wan enclave consisted of two parcels of land, each entirely surrounded by the country park, with a total area of about 16.55 hectares, of which 4.02 hectares is private land with the remaining being Government land.  The MacLehose Trail passes through the Sai Wan enclave.  As the enclave was not covered by any outline zoning plans (“OZP”) made under the Town Planning Ordinance (Cap 131), the use of the private land there was unregulated except by the terms of the Block Government Lease. In this respect it was like 53 other country park enclaves which were also not covered by any OZP.

5.  On 26 July 2010, the Secretary for Development by delegated authority directed the Town Planning Board to designate the Sai Wan enclave as a Development Permission Area.  A Development Permission Area plan (“DPA Plan”) was duly gazetted.  At about the same time DPA plans were issued for several of the 54 enclaves not covered by any OZP.  This was however only a temporary “stop-gap” measure as a DPA plan is effective only for three years, subject to a further extension of one year by the Chief Executive in Council: s 20(5) of the Town Planning Ordinance.

6.  Members of the Legislative Council also took an interest in what had become known as “the Sai Wan incident”.  On 28 July 2010 the Government informed members of the Panel on Environmental Affairs and Panel on Development of the Legislative Council that:

“Notwithstanding the designation of Sai Wan as a DPA, the DAFC will critically assess and seek advice of the Country and Marine Parks Board as necessary on the most appropriate measure to protect the natural environment of Sai Wan, including how the site should be zoned in order to provide adequate protection to it from nature conservation angle, and whether there would be justifications for incorporating Sai Wan as part of the SKECP to afford it the same protection from incompatible developments available to other private lands within country parks.”

7.  The Sai Wan incident also found its way into the 2010-11 Policy Address delivered by the Chief Executive on 13 October 2010, where he said:

“122. Hong Kong boasts over 40 000 hectares of land of scenic beauty. However, the recent Tai Long Sai Wan incident has highlighted the need to take prompt action to regulate land use in the vicinity of country parks to forestall human damage.

123. We have prepared draft Development Permission Area plans for Sai Wan, Hoi Ha, Pak Lap and So Lo Pun.  There remains 50 sites adjacent to country parks but not yet covered by statutory plans.  To meet conservation and social development needs, we will either include them into country parks, or determine their proper uses through statutory planning.  We will start work as soon as possible.”

8.  Following this pronouncement the Country and Marine Parks Authority (“the Authority”) – the position occupied by the Director of Agricultural, Fisheries and Conservation in the context of the Country Parks Ordinance (Cap 208) (“the Ordinance”) – conducted a comprehensive review of the established principles and criteria for designating new country parks or extending existing country parks. 

9.  The Authority also devised proposed measures, under existing mechanisms, for protecting country park enclaves.  Three alternative measures were in particular identified: (i) to incorporate an enclave as part of a country park under the Ordinance; (ii) to apply statutory planning control by a DPA plan followed by an OZP under the Town Planning Ordinance; and (iii) to continue to apply certain management agreement scheme to an enclave under the New Nature Conservation Policy.

10.  The Authority considered that incorporating an enclave into a country park represents a strong commitment by the Government to protecting the overall scenic beauty and integrity of country parks.  He considered that the approach of imposing control via an OZP is not without its problems, such as objections based on the absence of any provision for compensation under the Town Planning Ordinance, and is not as effective in achieving nature conservation as relying on the Ordinance.  Eco-vandalism would not be curbed and on-going works or uses would have to be tolerated as “existing use”.

11.  The Authority stated that it was necessary to protect the 54 enclaves not subject to OZP and, giving priority to those subject to development threats, he would, in conjunction with the relevant departments, consider whether an enclave should be designated as part of a country park or be covered by an OZP. 

12.  In May 2011, these proposed revised principles and criteria and protection measures for country park enclaves received approval in principle from the Country and Marine Parks Board (“the Board”). Under the Ordinance, the Board’s function is to act as a consultative body to advise the Authority and consider certain objections that may be lodged under that Ordinance: see s 5.

13.  At that time, the Chairman of the Board observed that the Authority should not deprive landowners of their property rights and that “villagers’ concerns should be resolved so as not to bring any litigations which would obstruct the Board to tackle the issue of country park enclaves and also jeopardize social stability” (sic).

14.  In June 2012, the Authority published a note on the use or development of land within an enclave after its inclusion into a country park.  Before going into the contents of that note it is convenient to explain how land use is controlled within a country park.  This is achieved by three sections, ss 10, 16 and 17, in the Ordinance. 

S 10 provides:

“(1) After the publication of a notice by the Authority under section 9(1), no new development shall be carried out within the area of the proposed country park shown in the draft map without the prior approval of the Authority.”

S 16 provides:

(1)     Notwithstanding any Ordinance or the terms of any lease or agreement for a lease, in any case where the Authority is of the opinion that any use or proposed use of any leased land by the occupier within a country park would substantially reduce the enjoyment and amenities of the country park as such, he may request the appropriate Land Authority to exercise the powers conferred by this section.

(2)     Where the Land Authority receives a request under subsection (1), he may, by notice in writing-

(a)   require the occupier, within such period, not being less than 3 months, as the Land Authority may determine, to discontinue or modify the use; or

(b)  prohibit the occupier from proceeding with the proposed use or, within such period, not being less than 3 months, as the Land Authority may determine, require the occupier to modify the proposed use,

so as to avoid the enjoyment and amenities of the country park being substantially reduced; and where the occupier is not the Government lessee, the Land Authority shall, where practicable, serve on the Government lessee a copy of the notice given to the occupier.

…

(4)     An occupier who fails to comply with the requirements of a notice given to him under subsection (2) shall be guilty of an offence and shall be liable to a fine of $5000 and, in addition, to a fine of $100 for each day during which the offence has continued.

The “Land Authority” referred to is the Director of Lands: s 16(7).

15.  S 17 provides for a mechanism for making objection to the Board against the notice referred to in s 16(2), and for appeal by petition to the Chief Executive against an adverse decision of the Board.  Further, there is a statutory mechanism for awarding compensation under the Ordinance: see ss 19-20.  In particular, where the Authority has refused approval under s 10 for a new development on any land, the owner of the land has the right to claim compensation from the Government for any loss, damage suffered or any cost incurred.  Failing agreement, each party may submit the claim to the Lands Tribunal for determination of the amount of compensation.

16.  In the note published in June 2012, the Authority stated that he “in general may allow those proposed use or development that are compatible with the purposes of the [Country Parks] Ordinance” and that he “would consider each case on its own merits”.  In relation to New Territories Small House Development, the note states:

“5.1   Under the New Territories Small House Policy, an indigenous villager may apply for permission to erect for himself during his lifetime a small house on a “suitable site” within his own village. Such a “suitable site”, generally means a site which falls within the environs of a recognized village, i.e. village environs (“VE”).

5.2     If a DLO receives a small house application on a “suitable site” within a country park, the DLO will normally consult the Authority before making a decision as to whether to approve or not to approve it. The Authority shall consider whether the proposed small house would substantially reduce the enjoyment and amenities of the country park having regard to the relevant circumstances of each application. Specifically, the following would be considered:

(a)     areas of difficult terrain, dense vegetation, ecological sensitive areas and stream courses within “VE” should be avoided where possible;

(b)     whether construction of the proposed small house would cause any diversion of streams or filling of pond;

(c)     whether the construction would involve any felling of trees, in particular mature trees, rare and protected trees, or old and valuable trees. Compensatory planting shall be required if felling of trees is unavoidable;

(d)    whether construction of the proposed small house would cause any damage to and/or pose cumulative impacts on the ecological values, integrity and biodiversity of the habitat; and

(e)     whether the construction would cause any adverse impacts on existing footpaths or hiking trails, recreational sites and facilities.”

17.  In August 2012, the Authority proposed that three enclaves, namely, Sai Wan, Kam Shan and Yuen Tun, be designated as part of existing country parks.  The proposal was endorsed unanimously by the Board at a special meeting held on 8 August 2012.  The Chairman of the Board advised the Administration to proceed with the statutory procedures as soon as possible.

18.  The statutory machinery for designating land as part of a country park is contained in ss 8 to 15 of the Ordinance and operates as follows:

(1) The Chief Executive may direct the Authority to prepare draft maps showing proposed country parks: s 8(1).  The Chief Executive in Council may also refer to the Authority any map of country park previously approved, for replacement or amendment: s 15(1).

(2) Upon such direction, the Authority prepares a draft map, a replacement map or an amendment to a map as the case may be: ss 8(1) and 15(2).

(3) The Authority has to consult the Board on the preparation of maps: s 8(4).

(4) Once a map has been prepared, the Authority publishes a notice in the Gazette and newspapers specifying, inter alia, the places and times at which the map may be inspected and how objections may be made: s 9(1)(c).  (This notice triggers the need under s 10 for the Authority’s approval for any new development in the area concerned: see §14 above.)

(5) Any person aggrieved by a map prepared by the Authority may, within the 60-day period for inspection, send to the Authority and the Board a written statement of his objection: s 11(1).

(6) The Authority may, within 30 days of receipt of the objection, send to the Board his written representations concerning the objection: s 11(3).

(7) The Board will then fix a time and place for hearing the objection, at which the objector may appear in person or by representative: s 11(4) & (5).

(8) The Board may reject the objection or direct the Authority to amend the map to meet the objection in whole or in part: s 11(6).

(9) Within 6 months from the last day of the period during which objections may be lodged, the Authority submits the map to the Chief Executive in Council for approval together with a schedule of objections and representations and a schedule of amendments directed by the Board: s 12.

(10) The Chief Executive in Council either approves the map, refuses to approve it, or refers it to the Authority for further consideration and amendment: s 13(1).

(11) Where the Chief Executive in Council has approved the map and it has been deposited in the Land Registry, the Chief Executive by order in the Gazette designates the relevant area to be a country park: s 14.

19.  In the present case, the statutory machinery was invoked on 9 October 2012 when the Chief Executive referred the old maps of Sai Kung East Country Park, Kam Shan Country Park and Tai Lam Country Park to the Authority for replacement by new maps pursuant to s 15.

20.  On 26 October 2012, the Authority prepared the three draft replacement maps as directed pursuant to ss 8 and 15 and published in the Gazette a notice pursuant to s 9 of the Ordinance. According to the draft map for Sai Kung East Country Park, the Sai Wan enclave was to be incorporated into the country park.

21.  On 24 December 2012, the applicant (on behalf of himself and other objectors) sent to the Authority and the Board a written statement of objection to the draft map for Sai Kung East Country Park pursuant to s 11(1) of the Ordinance.  The Authority sent to the Board his written representations in response pursuant to s 11(3) of the Ordinance.

22.  On 7 and 8 February 2013, the applicant attended a hearing before the Board and his objection, among others, was heard by the Board pursuant to s 11(5) of the Ordinance. 

23.  It is clear from the evidence – and it is not disputed – that the objections considered by the Board included the complaint that in incorporating Sai Wan into the country park, the Government had breached and ignored certain representations made in the late 1970s, which are now relied upon by the applicant in this application.  Those representations are set out in paragraphs 32 below to which I refer.

24.  After deliberations, the Board rejected the applicant’s objection in whole pursuant to s 11(6) of the Ordinance.  On 12 April 2013, pursuant to s 11(7) of the Ordinance, the Secretary of the Board notified the applicant that his objection had been rejected.  The objection and the Authority’s representations in response were annexed to that letter.

25.  Upon learning the decision of the Board on 12 April 2012, the Heung Yee Kuk (“the Kuk”) immediately wrote to the Chief Executive and members of the Executive Council voicing their dissatisfaction with the decision and setting out their grounds for objecting to the inclusion of Sai Wan in a country park.  It was submitted, inter alia, that the Government should honour its past promises and not ignore them, and that conservation of Sai Wan should be achieved via town planning procedures instead of by inclusion in a country park.  The Kuk asked the Executive Council to shelve the proposal to include Sai Wan in a country park and to direct the relevant bureaux to discuss with the Kuk a practical solution.

26.  In spite of the Kuk’s submissions, on 7 May 2013 the Chief Executive in Council approved the draft replacement maps of the Sai Kung East Country Park, Kam Shan Country Park and Tai Lam Country Park respectively.  The maps were duly signed and deposited in the Land Registry and a notice was gazetted accordingly on 31 May 2013, pursuant to s 13(4) and (5) of the Ordinance.

27.  In July 2013, pursuant to s 14 of the Ordinance, the Chief Executive issued the Country Parks (Designation) (Consolidation) (Amendment) Order 2013 (“the designation order”) to amend the Country Parks (Designation) (Consolidation) Order (Cap. 208 sub. leg. B) by replacing the relevant maps.

28.  In October 2013, the designation order, as is required for subsidiary legislation, was tabled before the Legislative Council in accordance with s 34(1) of the Interpretation and General Clauses Ordinance (Cap 1).  On 4 December 2013 the Hon. Lau Wong-fat, member of the Legislative Council (from the constituency of the Kuk) who is also Chairman of the Kuk, moved a resolution in the Legislative Council to repeal that part of the designation order which relates to Sai Wan.  The motion was defeated.

III.  THE APPLICATION

29.  The applicant is a male indigenous villager of Sai Wan Village born in 1950.  Sai Wan Village is a recognised village under the Government’s New Territories Small House Policy and was situated in the Sai Wan enclave.  18 indigenous villagers now live in the village.  There are another over 190 indigenous villagers of Sai Wan Village who live elsewhere. About 40 people who are not indigenous villagers live in the village. 

30.  As stated in the note issued by the Authority in June 2012 quoted in paragraph 16 above, under the Small House Policy an indigenous villager may apply for permission to erect for himself once during his lifetime a small house on a “suitable site” within his own village.  A “suitable site” generally means a site which falls within the environs of the village, which in turn generally means the surrounding area within a distance of 300 feet from the outermost houses in the village as at 1 December 1972.

31.  The intended application for judicial review seeks an order to quash only one decision, namely, the decision of the Chief Executive in Council made on 7 May 2013 approving the draft map of the Sai Kung East Country Park.  The sole ground relied upon is that the decision “frustrated and failed to take into account the applicant’s legitimate expectation” (see §46 of the applicant’s Form 86).  No argument was advanced on the basis of any constitutional right.

32.  The legitimate expectation relied upon is said to have arisen from the Government’s express and implied representations.  The express representations are said to be evidenced in the following documents:

(1)     A letter from the Authority to Sai Kung Rural Committee and relevant village representatives dated 5 January 1979 relating to the proposed Ma On Shan Country Park stated:

“I refer to the meeting held at the offices of Sai Kung Rural Committee on 28^th December 1978 to discuss the proposed Ma On Shan Country Park.

The Village Representatives at the meeting raised a number of questions about the effect of Country Parks on village life. Mr TSE Yee at Kai Ham Village presented a letter asking several questions. It was agreed that a letter would be sent to the Rural Committee explaining the Country Parks policy and answering their questions.

……

On the specific question raised by the village representatives the Country Parks policy is as follows:-

(a) Request for a 3,000 ft. zone excluded from the Country Parks around each village

In selecting the Country Parks boundaries existing inhabited villages have been excised as “enclaves”, with adequate land around them to accommodate natural expansion. In deciding on the distance between the edge of the village and the Country Park, the policy of the New Territories Administration has been closely followed, which says that new village houses may be built within 300 ft. of an existing village. On this basis, a distance of at least 300 ft. has been set aside around each village, and the whole area excised from the Park. You will understand, I am sure, that increasing this distance to 3,000 ft. would result in an excessive excision of land leading to a very small Country Park with very complicated boundaries, likely to confuse everyone and very difficult to manage.

(b) Furthermore, the Country Parks Ordinance does not totally prevent development in the Country Parks although it requires that the permission of the Country Parks Authority be given.  It is emphasized that no such permission from the Authority is needed for village housing in excised village enclaves.  Similarly, should these enclaves ever become fully occupied, favourable consideration would be given by the Country Parks Authority to the provision of additional land for village housing, provided the need is supported by the District Office.”

(2) The minutes of a meeting between the Secretary for the New Territories, Deputy Director of Agriculture and Fisheries Department and the Kuk on 2 December 1979 recorded:

“S.N.T. [Mr Akers-Jones] welcomed members to the meeting and said that the meeting had been arranged at the request of the Kuk to discuss general matters related to Country Parks.

2. Mr Stephen Wong [Chairman of the Kuk] thanked S.N.T. for arranging the meeting and DDAF for attending. He explained that the Kuk had asked for the meeting to clarify any misunderstanding between the HYK and A & F Dept and also to ensure that the interests of the indigenous villagers were being looked after.

3. Mr. Riddell-Swan [Deputy Director of Agriculture and Fisheries Department] assured the Kuk that the interests of the villagers would always be taken care of by the Country Parks Authority and the A & F Dept.

Country Parks Boundary

4. Referring to item one on the agenda, Mr. Stephen Wong said that the existing 300 ft. boundary for Country Parks should be extended to at least 500 ft. from the nearest village house or farm land.

5. In reply, Mr. Riddell-Swan said that the 300 feet boundary limit for country parks was drawn up after consultation with N.T.A. [New Territories Administration]. This limit was taken as a minimum distance and in many cases the boundaries of the existing country parks were much further than 300 feet from village limits. The Country Parks Authority would be willing to examine any area in which individual problems developed. Mr. Lewis [Assistant Director, Agriculture and Fisheries Department] added that so far, there had been 20 objections to the 21 country parks. In all cases where Rural Committees or Village Representatives had objected, an amendment to the boundary had been made.

6. Mr. Stephen Wong enquired that if the boundary of Country Parks had already been gazetted, would the procedure for subsequent amendment be very complicated?

7. In reply, Mr. Riddell-Swan replied that the procedure involved in any subsequent amendment would have to be decided on individual cases, but the procedure involved would not be complicated.

8. S.N.T. concluded and Mr. Riddell-Swan agreed that in future designation of Country Parks boundaries, local villagers would continue to be consulted.

…

Inclusion of villages insider Country Parks

17. Mr. Stephen Wong pointed out that a number of villages had been included inside the boundaries of Country Parks.

18. Mr. Lewis clarified that those included were all abandoned villages. He said that should villagers want to move back, the villages would be excised from the Country Parks.

19. Mr. Ng Chan-lam said that he had been requested by a village representative to find out whether Au Pui Wan and Wong Chuk Yeung villages in Sha Tin were included inside Country Parks.  In reply, Mr. Lewis said that he would check further and inform the Kuk.”

(3) A leaflet in Chinese published by the Authority in June 1977 with the title “What are the advantages of Country Parks to Villagers?” stated:

“……所有私人土地均不列入郊野公園範圍之內，而村民的傳統性權益將不會受到影響。”

“(七) 可否申請在公園內建小房舍?

郊野公園計劃不會擾及現存鄉村。大體上，鄉村房舍及現有耕地均不列入郊野公園範圍。如鄉民的農田是位於郊野公園內的話，仍可遵照租地契約條款，繼續耕作。

業已經理民官批准的鄉村擴建和擴伸地區，也不列入郊野公園範圍。村民將來若要申請地點建小房舍，而該地點不在該村近鄰，却在郊野公園範圍內，得先經理民官遵照建造小房舍政策予以批准，及代表該村民與郊野公園管理局商討。”

These passages may be translated into English as follows:

“… No private land will be included within the boundaries of the country parks, and the traditional rights and interests of the villagers will not be interfered with.”

“(7) Can applications be made for constructing small buildings in a country park?

The country park scheme will not affect existing villages. Basically, village houses and existing cultivated land will not be designated as areas within a country park. If the farmland of a villager is situated within a country park, he can go on cultivating the land according to the terms and conditions of the land lease document.

Village extension and expansion areas which have already been approved by the District Officer will not be included in a country park.  In future, if a villager intends to apply for constructing a small building at a certain place and that place is not in the neighbourhood of that village, but is within a country park, he has to seek approval from the District Officer first, who will make his decision according to the policy concerning construction of small buildings and will negotiate on behalf of the villager with the Country Parks Authority.”

33.  So far as implied representation is concerned, the applicant relies on the past conduct of the Government in that, from the establishment of country parks in the late 1970s until the decision complained of in these proceedings, it had not incorporated any of the 77 enclaves into any country park.

34.  Based on these representations, the applicant says that he has a legitimate expectation that (1) Sai Wan Village will remain as an enclave and not be included into a country park; and (2) the right of the applicant and other male indigenous villagers to build small houses pursuant to the Small House Policy will not be subject to the approval and control of the Authority or the provisions of the Ordinance.

35.  Regrettably, however, the applicant did not lodge his application until 15 October 2013, over 5 months after the decision of the Chief Executive in Council on 7 May 2013.

IV.  RELEVANT CONSIDERATIONS FOR EXTENSION OF TIME

36.  RHC O 53 r 4(1) provides:

“(1) An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.”

37.  There is no dispute that time runs from 7 May 2013 when the decision challenged was made, though I bear in mind that notice of the decision was not published until 31 May 2013. 

38.  Although the rule lays down a time limit of three months, it is as well to recall that an applicant is obliged to act promptly.  As Hartmann J (as he then was) said in Law Chun Loy v Secretary for Justice (HCAL 13/2005, 26 October 2006):

“9. What must also be emphasised is that O.53, r.4(1) does not permit an applicant simply to sit back and wait until the three month period stated in the order is drawing to a close before instituting action. The primary requirement of O.53, r.4(1) is promptness. The fact that an application has been made within three months does not necessarily mean that it has been made promptly. There may be occasions when an applicant who has filed his application for leave within the three months time period will still be judged to be guilty of undue delay.

10. This requirement for promptness has a sound basis in pubic policy. Judicial review provides a relatively quick and straightforward procedure for identifying and redressing public law wrongs. But it must be recognised that the procedure, dealing, as it does, with decisions made by public bodies in the complex business of managing a modern society, not only has the potential to disrupt the orderly administration of public services but also has the potential to cause hardship to, or in some way to prejudice, third parties who, for example, may already have acted upon the decision under challenge. It is for that reason that there is a necessity for the earliest reasonable notification that a public law decision is being challenged and for an early resolution of that challenge. In R. v. Monopolies and Mergers Commission, ex parte Argyll Group Plc [1986] 1 WLR 763, at 774, Sir John Donaldson put it plainly —

‘… good public administration requires decisiveness and finality, unless there are compelling reasons to the contrary.’ ”

39.  As O 53 r 4(1) stipulates, where the application for leave to apply for judicial review is made out of time, the court has a discretionary power to extend time.  The power is only exercised, however, if there is a “good reason” for extending time.

40.  Relying on Lam Chi Wai v Commissioner of Police, HCMP 311/2010, 24 June 2010 and Wong Tak Yiu v Commissioner of Police, HCAL 42/2010, 5 October 2010, Mr Stewart Wong SC and, with him, Mr Abraham Chan, who appear for the putative respondent, submit that nothing short of “exceptional circumstances” will justify an extension of time to challenge a public administrative decision.

41.  It seems to me that what was said by Kwan JA in Lam Chi Wai and by Fok J (as he then was) in Wong Tak Yiu concerns a special type of cases, namely, attempts to re-open a criminal or disciplinary conviction “on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect”: see HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 at §24; Clarence Chan v Commissioner of Police, FAMV 15/2010, 14 September 2010, §7. 

42.  In my view, the courts in those cases did not intend to say that in all cases where an extension of time is sought under O 53 r 4(1), exceptional circumstances must be shown.  In a case such as the present, the grant of an extension of time depends on good reason being shown by the applicant.

43.  In approaching this question I bear in mind the observation of Woolf LJ in R v Commissioner for Local Administration, ex parte Croyden London Borough Council [1989] 1 All ER 1033 at 1046:

“While in the public law field, it is essential that the courts should scrutinise with care any delay in making an application and that a litigation who does delay in making an application is always at risk, the provisions of RSC Ord 53 r 4 and s 31(6) of the Supreme Court Act 1981 are not intended to be applied in a technical manner. As long as no prejudice is caused, which is my view of the position here, the courts will not rely on those provisions to deprive a litigant who has behaved sensibly and reasonably of relief to which he is otherwise entitled.”

44.  It must however also be borne in mind that unless a disciplined approach to applications for judicial review out of time is taken, there is a real risk that public administration is unduly disrupted and policies and decisions put into uncertainty many months after they have been made and acted upon.  As Stock JA said in Lo Siu Lan v Hong Kong Housing Authority (CACV 378/2004, 17 December 2004) at §34:

“A prime purpose of insisting on promptitude in judicial review of administrative decisions is embedded in recognition that important administrative action can be paralyzed by challenges that transpire to be unmeritorious. The right to review the legality of administrative decisions is of course essential to a free society governed by the rule of law. But it is essential too that that freedom be exercised in a framework that reflects a ‘proper awareness of the needs of public administration.’ … There must be due regard to context, to the time scales inherent in the particular decision making process and in its consequences. We need to recall fundamentals and it is fundamental that:

‘The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer than is absolutely necessary in fairness to the person affected by the decision.’

per Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237, 280-281.”

45.  What may constitute a good reason for extending time cannot of course be defined.  It seems to me it is in most cases a multi-faceted question the answer to which depends on the circumstances of each case.  Nor can the factors relevant to the question be exhaustively set out, although the following matters are likely to be of significance:

(1) The length of the delay.  Obviously the longer the delay, the more cogent the reason has to be for extending time.

(2) An explanation for the delay.  While O 53 r 4(1) requires a good reason for extending time, rather than a good excuse for the delay, it is simply common sense that the presence of a credibly valid explanation for the delay will strengthen, and conversely the absence of any acceptable explanation will weaken, the applicant’s request for what is after all an indulgence to be granted to him in the court’s discretion.  It will be noted that in R v Commissioner for Local Administration, ex parte Croyden London Borough Council, supra, Woolf LJ referred to an applicant “who has behaved sensibly and reasonably”.

(3) The merits of the substantive application. Again it is common sense that the merits of the challenge of the administrative decision is a significant matter to be taken into account.  It is however by no means the sole criterion.  As Litton NPJ has said, where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at p.693B-C.  Likewise, Hartmann J said in Law Chun Loy v Secretary for Justice, supra, at §13:

“In summary, any person who seeks by way of judicial review to challenge a public law decision is from the outset under a clear warning: ‘sleep on your rights and, even if your cause is meritorious, you may find the gates locked against you’.”

          Mr James Lee who appears for the applicant submits that it is sufficient for present purposes to see whether the applicant has a reasonably arguable claim which enjoys a realistic prospect of success.  But that is the threshold for applications for leave lodged within time.  Where the applicant is out of time, the court is in my view entitled, in an appropriate case, to delve more deeply into the merits.  Its function is not just to filter out the unarguable, but also to see whether indulgence in the form of extension of time should be granted to the applicant.

(4) Prejudice.  The question of prejudice has two sides: the prejudice to the applicant if time is not extended, and the prejudice to the respondent and to public administration if a challenge is allowed to proceed out of time.

(5) Whether the application raises questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event, are also relevant considerations.  I shall return to these aspects at the end.

46.  I turn to consider the circumstances of the present application.

V.  LENGTH OF AND EXPLANATION FOR DELAY

47.  Judging by the three-month time limit, the delay here is slightly over two months.  Whilst the period of delay is not negligible, it is certainly not the worst of its kind.  The applicant seeks to explain his delay by saying that he first applied for legal aid in December 2012 and the application was only approved on 8 August 2013 followed by an assignment of counsel on 27 August 2013.  Mr Lee submits that the legal team prepared and submitted the Form 86 within 3 months thereafter and the applicant should not be blamed for the delay.

48.  I regret to have to say I do not find that to be an acceptable explanation at all:

(1) In my opinion, there is no general proposition that difficulty or the time taken in obtaining legal aid is a good reason for extending time for application for judicial review: see Wong Chi Keung v Commissioner of Police, HCAL 1/2010, 11 May 2010, §§57-72. Each case depends on its own circumstances.

(2) Where an applicant attributes the delay to the process of obtaining legal aid, it is incumbent on him to demonstrate he had exercised due diligence in the making and processing of that application: Re Ho Mei Ling [2011] 6 HKC 1 at §108; see also Mui Mei Fung v Secretary for Justice (for Commissioner for Labour) (HCAL 145/2013, 16 January 2014).  The applicant is the only party privy to such information and it is for him to provide an explanation for the delay.

(3) In the present case, the applicant says he applied for legal aid in December 2012.  But that was an application in relation to an intended challenge of the Authority’s decision in October 2012 in the form of the production of the draft maps pursuant to s 8 (see §20 above).  In fact, the Legal Aid Certificate eventually issued was granted for the purpose of seeking judicial review against “the decision of [the Authority] made on or about 26.10.2012 to incorporate Tai Long Sai Wan into the existing area of Sai Kung East Country Park”. 

(4) It is not clear whether and, if so, when the applicant applied for legal aid to challenge the decision which he now seeks to challenge, namely the decision of the Chief Executive in Council to approve the draft map for the Sai Kung East Country Park.  There is nothing to show that the Legal Aid Department was told about that decision or the date of it.  Nor is there any concrete evidence that the applicant followed up his application for legal aid.  All that is said is a line in an affirmation of Ms Carmen Chan, a council member of the Kuk, filed for the applicant on 11 January 2014, that she was informed by the applicant and verily believed that after the application in December 2012, the applicant had made repeated request and demand to the Legal Aid Department on the assessment of his application.

(5) It should be noted that the putative respondent has as early as in the initial response dated 11 November 2013 already contended that the applicant has failed to show that he exercised due diligence in pursuing the legal aid application.  In these circumstances I am not satisfied that there is any proper basis for the applicant to put any blame on the Legal Aid Department for the delay.

(6) Further, legal aid was granted on 8 August 2013.  The Legal Aid Certificate was issued on 12 August 2013, assigning solicitors to the applicant.  Counsel was assigned on 27 August.  I am not satisfied, in the context of the intended application for judicial review being already late, that the application had been filed with reasonable expedition thereafter.  No explanation has been offered why it took the applicant over 2 months, after legal aid was granted, to file his challenge.  This is not a case where the applicant had to start from scratch.  He and other persons had been objecting to the proposal to include Sai Wan in a country park for many months on grounds including the 1970s documents now relied upon.

VI.  MERITS

49.  As stated above, the applicant’s challenge is based solely on legitimate expectation.  He claims that he had a legitimate expectation that Sai Wan Village would remain as an enclave and that his right and that of other male indigenous villagers to build small houses would not be subject to the approval and control of the Authority and the provisions of the Ordinance.

50.  In Ng Siu Tung v Director of Immigration (2002) 5 HKCFAR 1, the Court of Final Appeal gave authoritative guidance on the law on legitimate expectation.  In particular, the majority stated:

“94. … First, the law requires that a legitimate expectation arising from a promise or representation, the expectation being that the promise or representation would be honoured, be properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker. … If the expectation is not taken into account, the decision-maker abuses his power and acts unlawfully (Bibi, paras. 39 and 51).

95. Secondly, unless there are reasons recognised by law for not giving effect to legitimate expectations, then effect should be given to them. Where the conduct of the public official has given rise to a legitimate expectation, then fairness requires that, if effect is not given to the expectation, the decision-maker should express its reasons so that they may be tested by a court in the event that the decision is challenged (Bibi, para. 59).

96. Thirdly, even if the decision involves the making of a political choice by reference to policy considerations, the decision-maker must make the choice in the light of the legitimate expectation of the parties (Bibi, para. 64).

97. Fourthly, it follows that if the decision-maker does not comply with the third requirement just stated, the decision will be vitiated by reason of failure to take account of a relevant consideration.  The failure to take account of the legitimate expectation constitutes an abuse of power.  Once the court has established such an abuse, it may ask the decision-maker to exercise his discretion by taking the legitimate expectation into account (Bibi, para. 41).”

51.  On this application Mr Wong SC makes three main points any one of which, he contends, is fatal to the applicant’s case of legitimate expectation even assuming he had a substantive expectation arising from the representations that I have referred to above.  First, Mr Wong submits that the alleged expectation is neither reasonable nor legitimate.  I have some doubt indeed whether there could in principle be a legitimate expectation that the Authority would never propose and the Chief Executive in Council would never decide that Sai Wan Village and its environs should be incorporated into a country park.  A principal purpose of the Ordinance is that land which deserves protection and management as a country park should be identified and designated as such.  It would be, it seems to me at least arguably, to undermine the statutory purpose to require the decision-maker to abide by an expectation that Sai Wan Village and its surrounding areas would, come what may, never be included in a country park: see Ng Siu Tung at §112.

52.  Secondly, Mr Wong SC contends that whatever expectation there might have been on the part of the applicant up to 2010, it was simply an expectation based on the policy communicated to the villagers in the 1970s.  Any such expectation was necessarily extinguished by the announced policy change that was made clear by the Chief Executive’s 2010-2011 Policy Address (quoted in §7 above).  It was sufficient, he submits, that it was announced as part of the new policy that as a protective measure, Sai Wan might be included in a country park since any expectation that it would never be so included could not survive.  In riposte, Mr Lee submits that although the Government may be free to alter its policy, it is by no means free to ignore the existence of a legitimate expectation.

53.  It is unnecessary for me to decide these points, because I accept Mr Wong SC’s third submission, namely, that even if the applicant had a legitimate expectation which survived the 2010 policy change, there was no sufficient ground to impugn the decision of the Chief Executive in Council in this case.

54.  Where a legitimate expectation exists, it is of course incumbent upon the decision-maker to take into account the expectation that the promise or representation would be honoured, in the decision-making process.  In the present case, it is clear that the representations made by the Government in the 1970s were placed before the Authority, the Board and the Chief Executive in Council at the time.  The representations made by the Authority in response did not deny the documents or what was stated in them, but referred to the quickened pace of urbanisation and the increasing pressure for development faced by certain country park enclaves.  The Authority considered that development of such enclaves could degrade the integrity and the aesthetic and landscape quality of the country parks as a whole and that, after the Sai Wan incident, there was public expectation for the Government to improve protection of the country park enclaves.  In short, it seems to me the Authority took the position that despite the representations made by the Government in the 1970s, because of the change in circumstances, he considered that the Sai Wan enclave should incorporated into the country park.

55.  The minutes of the deliberations of the Board in February 2013 show that it had considered the objection on the ground that to incorporate Sai Wan Village would be to breach the Government’s promise made in the late 1970s.  The affirmation of Mr Au Wai Kwong Elvis, Assistant Director (Nature Conservation & Infrastructure Planning) of the Environmental Protection Department, who had been authorised by the Chief Executive in Council to make the affirmation, stated that the Chief Executive in Council in reaching its decision had also taken into account the villagers’ representations including what the Government said in the late 1970s.  Indeed, the very first point made by the Kuk’s letter to the Chief Executive and members of the Executive Council dated 12 April 2013 was that the Government should honour its past promises.

56.  As pointed out by the Court of Final Appeal in Ng Siu Tung at §91, the point of the doctrine of legitimate expectation is to prevent abuse of powers and to ensure administrative fairness.  For this purpose it is established that where a legitimate expectation exists, there must be some justification if the expectation is not to be given effect.  The measure of such justification has been described in different ways. 

57.  In R v North and East Devon Health Authority, Ex parte Coughlan [2001] QB 213, Lord Woolf MR said at §57:

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

58.  In Ng Siu Tung at §95, the majority did not expressly adopt this test but stated that effect should be given to legitimate expectations “unless there are reasons recognised by law for not doing so”.

59.  The passage in Coughlan has more recently been applied with approval by the Privy Council in Paponette v Attorney General of Trinidad and Tobago [2012] 1 AC 1 at §34.  Further, the Privy Council approved the observation of Laws LJ in Nadarajah v Secretary of State for the Home Department [2005] EWCA Civ 1363 at §68:

“The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances”,

adding:

“It is for the authority to prove that its failure or refusal to honour its promises was justified in the public interest. There is no burden on the applicant to prove that the failure or refusal was not justified.”

60.  In his Form 86, the applicant, adopting the Wednesbury approach, contends that if the relevant matters had been taken into account, no reasonable Government official would have decided to incorporate Sai Wan Village into the country park.  In his submissions, however, Mr Lee embraces the proportionality test, contending that it was not a proportionate response for the Government to prefer the country park approach to the town planning option.

61.  As Bokhary PJ in his partially dissenting judgment in Ng Siu Tung said at §366, the law on the standard to be applied by the courts when reviewing an administrative decision which disappoints a legitimate expectation even after taking it into account remains to be settled.  It is unnecessary for me to express a view on this question in this case because I am satisfied that whether one applies the Wednesbury approach or the proportionality test, the decision here made pursuant to the changed policy is not so unfair to the applicant as to amount to an abuse of power.

Size of class of representees

62.  To start with, it is to be noted that the representations here are said to have been made not only to the applicant but to all male indigenous villagers in the New Territories.  The authorities show that an announcement of policy made to a large group is less likely to be protected substantively than an assurance to an individual or a small group where the promise or representation could have “the character of a contract”: ex p Coughlan [2001] QB 213, §59.  In R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755, at §§46-47, Laws LJ suggested that while in theory there may be no limit to the number of intended beneficiaries of a promise for the purpose of legitimate expectation, in reality it is likely to be small if it is to be upheld because it is hard to imagine a case where, for example, a government would be held legally bound by a representation made generally or to a diverse class.  The broader the class claiming the benefit, the more likely it is that the supervening public interest would be held to justify the change of position.

Land use planning

63.  One is here concerned with land use and planning, where a decision can have a direct and substantial effect not only on the applicant but also on the public.  The expectation of an individual or a group of individuals has to be balanced against the interests and needs of the public.

64.  The change in the Government’s policy in 2010 was triggered by a public outcry over the Sai Wan incident.  Sai Wan was considered by many members of the public to be a place of outstanding natural beauty in Hong Kong.  Following the Sai Wan incident, there was strong demand in the community (and, it appears, in the Legislative Council as well) for the Government to take steps to protect the site from works that would destroy the scenic qualities of the area.  This led to the announcement by the Chief Executive of a new policy in October 2010, and the actions taken by the Authority and the Board in reviewing their criteria for assessing an area for incorporation into a country park and, in particular, whether Sai Wan should be so incorporated.

65.  That Sai Wan requires protection from unrestrained development is not disputed by the applicant.  In fact he accepts there is a need to control development there.  He submits however that such control could just as effectively be achieved via an OZP made under the Town Planning Ordinance, and that to include Sai Wan Village into a country park is a disproportionate measure and therefore unfair to him having regard to his legitimate expectation that it would not be so included. 

66.  The use of an OZP is a suggestion that was put forward to the Authority, the Board and the Chief Executive in Council.  As evidenced in the Legislative Council Brief of July 2013, the Administration’s response is as follows:

“Sai Wan has a high landscape and aesthetic value which complements the overall naturalness and the landscape of the surrounding the SKECP. With high recreation potential, the enclave is considered as an integral part of the landscape of the SKECP. Although statutory town plans prepared under TPO would set out the land use framework and make provision for planning enforcement, the implementation of the plan falls outside the ambit of the Planning Department or the Town Planning Board which would not allocate resources for habitat/amenity improvement. Therefore, including an enclave into a statutory plan cannot fully achieve the conservation objectives. If Sai Wan is incorporated into the SKECP under the CPO, the Government will manage the sites as part of the SKECP and improve the supporting facilities therein, and seek to enhance the environment in collaboration with local villagers. The Authority will implement appropriate management measures, including patrols and law enforcement, refuse collection and vegetation management. Besides, suitable country park facilities such as information boards, warning signs, etc. will be provided for the convenience of the visitors.”

I am unable to accept Mr Lee’s submission that there can be no public interest in incorporating an area into a country park over and above the interest served by the imposition of an OZP under the Town Planning Ordinance.  Whether or not that public interest justifies disappointing the legitimate expectation concerned is a different question.

67.  I remind myself that the court is here concerned with alleged abuse of power in the designation of certain area as part of an existing country park.  The underlying matter involves questions of land use, conservation, planning, development, provision of recreational facilities, and the villagers’ need and desire for future small houses.  The choice is between mere control via the Town Planning Ordinance using general planning criteria on the one hand, and active management by the Agriculture Fisheries and Conservation Department as part of a country park coupled with control of development using criteria appropriate for a country park on the other.  The decision has a direct and immediate effect on the public.  Interests of different sections of the community, sometimes opposing interests, have to be considered and balanced.  These are questions of general policies.  The Ordinance places the relevant power of preparing and approving the maps in the hands of the Authority, the Board and ultimately the Chief Executive in Council.  Their decisions are of course subject to the supervisory jurisdiction of the court by way of judicial review, but judicial review is concerned with the lawfulness of administrative actions, not with the merits as such of policy decisions and political choices. 

68.  In C v Director of Immigration (FACV 18/2011, 25 March 2013) at §§81-82, Sir Anthony Mason NPJ gave a recent reminder of the limits of judicial review:

“81. Although judicial review has expanded beyond its earlier boundaries and now extends to administrative powers generally, it is important to recognize that it is subject to a number of limitations. This is not the occasion to discuss them generally. It is sufficient here to identify as examples two substantial and overlapping limitations, one arising from separation of powers considerations and the other arising from the requirement of justiciability. The separation of powers may deny jurisdiction to the courts when the function involved is exclusively the province of the legislature or the executive. Questions of justiciability may arise in connection with broad issues because they may involve a lack of judicially manageable standards, such as matters of economic or social policy. Questions of justiciability may also arise in connection with issues which have a political character and a high political content where a political rather than a legal solution may be called for. When questions of justiciability arise it may appear that the courts are not institutionally equipped or competent to deal with the issues for determination.

82.       Other limitations on judicial review relate not so much to what I have termed the threshold question as to the scope (or grounds), standards and intensity of review and standards of fairness.  Some decisions may be reviewable for procedural fairness for example, but not otherwise.  And this Court has recognized that the courts should attach particular weight to the views and policies adopted by the legislature in appropriate cases, as it did in Lau Cheong v HKSAR.  In Fok Chun Wa v Hospital Authority Ma CJ (in a judgment with which other members of the Court agreed) pointed to the need for the courts to allow a margin of appreciation in relation to legislative and executive decisions affecting macro socio-economic rights.  …”

69.  It is also relevant to note that the decision in question here was not a sudden outcome but the result of a long process of public consultation that began in 2011.  There is some dispute raised by the applicant as to whether some of the meetings referred to in the evidence were consultation meetings or more accurately meetings to which Government officials were invited by the Kuk to explain their policies.  Whatever the correct description of the meetings may be, I do not think that debate detracts from the fact that the views and comments of various sections of society were elicited in the process. 

70.  It is well established that where broad questions of policy are involved, the courts generally accord a wide margin to the executive for their judgment and discretion and correspondingly adopt a less intrusive standard of review.  In R v Secretary of State for Education and Employment, ex parte Begbie [2000] 1 WLR 1115, 1130G-1131D, a case concerning a challenge based on breach of legitimate expectation, Laws LJ said (with whom Sedley LJ agreed):

“… The facts of the case, viewed always in their statutory context, will steer the court to a more or less intrusive quality of review. In some cases a change of tack by a public authority, though unfair from the applicant’s stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear. The local government finance cases, such as R v Secretary of State ex parte Hammersmith [1991] 1 AC 521, exemplify this. As Wade and Forsyth observe (Administrative Law, 7th edn p.404):

‘Ministers’ decisions on important matters of policy are not on that account sacrosanct against the unreasonableness doctrine, though the court must take special care, for constitutional reasons, not to pass judgment on action which is essentially political.’

In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players. Here, with respect, lies the importance of the fact in Coughlan that few individuals were affected by the promise in question. The case’s facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes. In such a case the court’s condemnation of what is done as an abuse of power, justifiable (or rather, falling to be relieved of its character as abusive) only if an overriding public interest is shown of which the court is the judge, offers no offence to the claims of democratic power.

 There will of course be a multitude of cases falling within these extremes, or sharing the characteristics of one or other. The more the decision challenged lies in what may inelegantly be called the macro-political field, the less intrusive will be the court’s supervision. More than this: in that field, true abuse of power is less likely to be found, since within it changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy.”

See also Fok Chu Wa v Hospital Authority (2012) 15 HKCFAR 409 at .ss75-76, a case which concerns fundamental rights.

Position of Legislative Council

71.  There is a further dimension in this case. While the power to prepare and approve maps lies with the executive government, the statutory procedure under the Ordinance is not complete until an area shown in an approved map is designated a country park or part of a country park by a designation order which, as subsidiary legislation, has to be placed before the Legislative Council for negative vetting.  The Ordinance therefore places part of the decision-making power in the legislature.

72.  From that perspective the decision in question in this case not only embodies the considered position of the executive branch of the Government, but is also supported by the Legislative Council to the extent that it voted against the motion proposed by the Hon. Lau Wong Fat to repeal the designation order relating to Sai Wan (see §28 above).

Reasons

73.  Although there is no attack in the Form 86 on the absence of reasons given by the Chief Executive in Council, Mr Lee raised the point in his submissions.  As I understand his arguments, however, he does not attack the decision on the stand-alone ground of failure to give reasons, but relies on the absence of reasons in support of his contention that the applicant’s legitimate expectation was not properly taken into account and weighed against any public interest.  He relies on Ng Siu Tung at §95 and Paponette v Attorney General of Trinidad and Tobago.

74.  Mr Wong SC confirms in his skeleton argument that the reasons for the decision were set out and explained in the Legislative Council brief of 17 July 2013.  It is true that, as Mr Lee submits, there is no affidavit to that effect, but this criticism loses its force in light of the fact that the applicant has not raised a point about reasons in his Form 86 but only in his skeleton argument.

75.  In this context it seems to me the real question is whether there is sufficient material to enable the propriety of the decision to be examined by the court.  In that regard, Paponette is a stark case: the Attorney General’s evidence in opposition to the judicial review was not admitted by the first instance court because it was filed out of time.  As a result no evidence was placed before the court to explain why the regulations in question were made.  The Privy Council therefore had to discuss the burden of proof, and concluded at §38:

“If the authority does not place material before the court to justify its frustration of the expectation, it runs the risk that the court will conclude that there is no sufficient public interest and that in consequence its conduct is so unfair as to amount to an abuse of power. …”

The situation in the present case is quite different.  For the purposes of opposing the application for leave out of time, the putative respondent, while reserving the right to file further evidence if leave is granted, has already placed a great deal of material before the court.

Reliance

76.  The applicant does not allege that he placed any reliance on the Government’s representations in the 1970s or that he acted on them in such a way that he would suffer detriment if the Government did not act in accordance with those representations.  In fact he does not say that he knew about the representations at the time.  The relevance of this was explained by Lord Hoffmann in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] AC 453, at para 60:

“It is not essential that the applicant should have relied upon the promise to his detriment, although this is a relevant consideration in deciding whether the adoption of a policy in conflict with the promise would be an abuse of power and such a change of policy may be justified in the public interest, particularly in the area of what Laws LJ called ‘the macro-political field’: see R v Secretary of State for Educat ion and Employment, Ex p Begbie [2000] 1 WLR 1115, 1131.”

It is common sense that a person who has relied on a promise to his detriment has a stronger claim that it is unfair to deprive him of the benefit of the promise than a person who did not even know about it.

The possibility of building small houses

77.  The applicant contends that incorporating Sai Wan Village into a country park will effectively extinguish his and other male indigenous villagers’ right to build small houses pursuant to the Small House Policy.  I do not think the position can be put quite so starkly.

78.  As explained in the note on the use or development of land within an enclave after its inclusion into a country park published by the Authority in June 2012 (see §16 above), which reflects existing practice, the Authority will assess each proposed development of land in a country park on the merits of the individual case, taking into account whether the development would substantially reduce the enjoyment and amenities of the country park concerned.  On the evidence, by established policy and practice, the Authority takes the view that small houses are compatible with country parks and with the objects and purposes of the Ordinance.

79.  Moreover, the evidence shows that even where a small house is proposed in an area which lies within an enclave and is therefore not subject to the Ordinance, if there are objections based on adverse effect on the country park, the District Lands Officer would nevertheless consult the Authority who would apply the same criteria in deciding whether to give his approval.  In other words, the building of small houses in an enclave has never been entirely free from the control of the Authority.

Conclusion

80.  For the above reasons I consider that the intended application for judicial review would ultimately be unsuccessful, even if it was arguable.  Bearing in mind that the decision was very much one in the “macro-political field”, there was in my view sufficient public interest and need to justify the adoption of a new policy in 2010 and, pursuant to that policy, to include Sai Wan Village into the surrounding country park in 2013.  Neither the applicant nor any other male indigenous villager is said to have acted to his detriment on the strength of the representations.  Further, the incorporation of the village and its environs into the country park does not by itself mean that the applicant and villagers can no longer build any small houses on the land so included.

VII.  PREJUDICE

81.  In considering the potential prejudice to the applicant, the point mentioned in paragraph 78 above is relevant, namely, that in general the Authority’s position is that small houses are compatible with country parks and the objects and purposes of the Ordinance.  Subjecting the enclave to the control of the Ordinance does not necessarily mean that the applicant loses all opportunity of building a small house in the village or its environs.  Conversely, putting the enclave under an OZP does not necessarily mean that the applicant will be able to build a small house in the village environs.

82.  On the putative respondent’s part, Mr Wong SC submits that there is necessarily prejudice in permitting a delayed challenge to proceed in such a case as the present, in the form of disruption to the administrative process and prolonged uncertainty as to the validity of the administrative action.  Apart from that, no specific prejudice is alleged by the putative respondent. 

VIII.  PUBLIC IMPORTANCE

83.  Mr Lee contends that extension of time should in any event be granted because of the general importance of the issues involved. He relies on a passage in the judgment of Taylor J in R v Secretary of State for the Home Department, ex parte Ruddock [1987] 1 WLR 1482, 1485G, which concerns the legality of tapping of telephone.  While country parks are a topic of general current interest, I am by no means satisfied that the intended judicial review here involves legal questions of general importance.  Although there were 54 country park enclaves not covered by OZP, the decision challenged here only relates to the Sai Wan enclave.  There is no challenge against the incorporation of Kam Shan and Yuen Tun into country parks the maps of which were approved by the Chief Executive in Council on the same date of 7 May 2013.  There is no evidence that the Government will seek to incorporate all the remaining 51 enclaves into country parks.  Any decision to incorporate another enclave into a country park, if challenged, will have to be assessed by the court with reference to the circumstances of that particular enclave and that particular decision. 

IX.  PUTATIVE RESPONDENT’S SUMMONS OF 16 JANUARY 2014

84.  Certain exhibits were inadvertently omitted from the affirmation originally filed by the respondent.  They consist of certain working papers for and the minutes of the objection hearing that took place before the Board on 7 and 8 February 2013.  The applicant opposed the respondent’s summons for leave to file such exhibits late, but did not identify which part of that evidence he needed further time to respond to.  Having regard to their nature I do not think admitting these missing exhibits would cause any injustice to the applicant.  I grant leave as sought by the respondent’s summons dated 20 January 2014. 

X.  OVERALL CONCLUSION

85.  In summary, the application for leave was issued out of time.  There was a significant delay and the excuse put forward, seeking to put all the blame on the Legal Aid Department, was unsubstantiated.  Even after legal aid was granted, the application was not prepared with due expedition and any sense of urgency.  In any event, judicial review would in my view probably be refused at the end of the day, because even if the applicant had a legitimate expectation, the decision to incorporate the Sai Wan enclave into the country park was justifiable and not an abuse of power, having regard to all the circumstances. Since the Authority takes the position that small houses are in principle compatible with country parks, the building of small houses is not necessarily precluded in the enclave after incorporation.  There is no sufficient general importance in the legal issues raised because the legality of the decision to incorporate each enclave into a country park depends on the facts of each case including the features of the enclave concerned and the particular decision-making process. 

86.  In all the circumstances and for the reasons above, I am not persuaded that the applicant should be granted an extension of time and the application for leave to apply for judicial review is accordingly dismissed.