鄧文岳 v. 地政總署署長

HCAL 1942/2023

[2024] HKCFI 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1942 OF 2023

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D E C I S I O N

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A.  Introduction

1.  By his Form 86 dated 27 October 2023, the Applicant sought leave to apply for judicial review, albeit without specifying a particular decision against which he is seeking a review.

2.  I gave directions for the putative respondent (“Director”) to have leave to file an Initial Response to the application, and for the Applicant to file a Reply to the Initial Response. The Initial Response was filed on 5 December 2023, signed by Ms Bethany Chu, Government Counsel. The Applicant failed to file any Reply, whether by the deadline set or at any time since.

3.  Having reviewed the materials, I am satisfied that it is appropriate to deal with this matter on paper. This is my Decision.

B.  Target of Intended Challenge

4.  Although not clearly identified in the Form 86, the particular target of the intended challenge is apparently discernible from the materials provided with the Form 86 and Initial Response.

5.  In the Form 86, the Applicant seeks to “overturn decisions the Director made on the handling of suspected unlawful occupation of government land by unauthorised building works (including eviction, clearance and removal of the related structures)”. As it was put in the supporting affirmation, the Applicant seeks to “overturn the decisions made and all actions taken by the Director on his own, often adopted without going through court hearings when dealing with cases of suspected unlawful occupation of government land”.

6.  The stated relief in the Form 86 is to prohibit the Director from taking any actions against suspected unlawful unauthorised building structures, including eviction, clearance and removal, enclosures, until there is a final decision on the case (except cases on which the court has given decisions).

7.  According to the Lands Department (“LandsD”)’s record, the Applicant was the occupier of structures illegally erected or placed on the unleased Government land near Electric Supply No 346513-1-5-0W 1610, Kwai Chung, New Territories (“the GL”), against which LandsD has taken enforcement action.

8.  That action commenced following a public complaint made on 19 November 2021 about unauthorised structures on the GL. On 18 July 2022, LandsD carried out a site inspection on the GL and posted a notice on-site, requesting the occupier to produce documentary evidence to prove against the alleged erection or placement of unauthorised structures, failing which LandsD would take action under section 6(1) of the Land (Miscellaneous Provisions) Ordinance Cap 28 (“LMPO”).

9.  On 15 September 2022, the Applicant replied to LandsD, claiming to be the occupier of the structures on the GL, and claiming to have been operating a small factory there since 2008. On 28 September 2022, the Applicant wrote to request a short-term tenancy of the GL from LandsD for operation of his factory there.

10.  On 3 October 2022, LandsD rejected that request, by reason that the GL falls under the “Green Belt” zone in the relevant zoning plan, therefore being unsupportive of the Applicant’s proposed use of the GL.

11.  Two further notices under section 6(1) of the LMPO were posted on 16 November 2022 and 8 December 2022, demanding the Applicant to cease unlawful occupation of the GL by 17 December 2022 and 6 February 2023 respectively.

12.  An on-site inspection performed by LandsD on 18 May 2023 revealed that the unauthorised structures had not been removed. After further notices were posted, LandsD informed the Applicant by letter on 8 August 2023 that it would take enforcement action against the illegal occupation of the GL on 1 November 2023, and that no further time extension would be granted.

13.  Indeed, on 1 November 2023, LandsD proceeded with the enforcement action. The Applicant was allowed to enter the GL until 15 November 2023 to remove all his personal belongings and signed a declaration to that effect. On 16 November 2023, LandsD completed the clearance operation at the GL.

C.  No Merits in Application

14.  There are no merits in this application. In short, the Applicant has failed to identify any public law grounds of review which are reasonably arguable with any realistic prospect of success. This is for a number of reasons which individually and cumulatively must result in the dismissal of the application.

15.  First, the Decision sought to be challenge is not amenable to judicial review: see Chan Ka Man v Director of Lands (unreported, HCAL 90/2022, 23 September 2022) [2022] HKCFI 2912 at §3. Decisions by the Director to issue notices under section 6 of the LMPO demanding cessation of unlawful occupation of Government land are land administrative decisions made by the Director in the role of a landowner, therefore not amenable to judicial review. The public element involved is insufficient to render such decisions susceptible to public law challenge.

16.  Secondly, I agree with Ms Chu that there is no merit in the application in any event. The Applicant has occupied unauthorised structures on the GL, but has never owned any Government land license, lease, squatter number or any other instrument or status as might justify his occupation of the GL. After exercising his discretion to give more than six months’ time extension to the Applicant, the Director has carried out enforcement action fully within his power and duty as a landowner administrator of lands in Hong Kong. There can be no reasonably arguable suggestion that the Director has acted unlawfully or procedurally improperly or irrationally or unreasonably in the public law sense.

17.  Thirdly, the application has become academic. The Applicant has essentially sought by these proceedings to postpone the enforcement action against his unlawful occupation of the GL, but that enforcement action has already taken place. (That may explain why the Applicant failed to avail himself of the opportunity to file a Reply to the Initial Response.) There is no good reason in the public interest for the Court now to exercise a discretion to allow the present application to proceed since it has become academic.

D.  Result and Costs

18.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed.

19.  As to costs, I take the following matters into account in the broad discretionary exercise relating to costs orders:

(1)  On the date when this application was commenced, Mr Chan Ka Man sent an email to request LandsD to withhold enforcement action against the illegal occupation of the GL by reason of the fact that the Applicant had filed the Form 86.

(2)  That is the same Mr Chan who was the applicant in the authority referred to above – though I note that Ms Chu has properly informed me that Mr Chan filed a Notice of Appeal on 27 September 2022 against the relevant judgment handed down on 23 September 2022, but the appeal is pending determination by the Court of Appeal.

(3)  During the enforcement steps taken in November 2023, Mr Chan and a Mr Tang Oi Ming and a Ms Pang Yan Yi were present at the GL, apparently showing some attempt to obstruct the enforcement action, but to no avail.

(4)  Mr Tang and Ms Pang are applicants in two out of six other judicial review applications (HCAL 1578/2023, HCAL 1638/2023, HCAL 1639/2023, HCAL 1867/2023, HCAL 1868/2023, and HCAL 1869/2023) which appear likely connected. It also seems that Mr Chan’s wife is the applicant in HCAL 1578/2023).

(5)  There is, therefore, some weight in the suggestion made by Ms Chu that the various judicial review applications are a concerted effort which aims to delay LandsD’s enforcement action.

(6)  LandsD wrote to the Applicant on 16 November 2023 inviting him to withdraw the application, but received no reply.

20.  Weighing those various matters as seems to me to be appropriate, and in particular giving significant weight to the last point, it seems to me that the Director’s costs of the application (even though it was initiated by the Applicant ex parte) should be borne by the Applicant. The application is devoid of merit, as probably was and ought to have been known to the Applicant through his connection to Mr Chan. When given the chance to withdraw the application, not only did the Applicant not do so but he even failed to provide the courtesy of a response to the invitation. The Applicant must be taken to have understood that if he maintained the proceedings, the Director would incur the costs of providing at least the Initial Response to them.

21.  I also accept Ms Chu’s submission that the circumstances are appropriate for the costs to be taxed on an indemnity basis. I so order.

22.  For the sake of completeness, I would state that I have considered whether the costs order should be made in the first instance on a nisi basis. But I do not think that it should. The application for costs, and the claim to indemnity costs, was sought and explained in the Initial Response, to which the Applicant has chosen to make no reply.