WONG YU CHO, ROLLY v. LAI CHI WAH, ANDREW, DIRECTOR OF LANDS

HCAL 1266/2021

[2021] HKCFI 2895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1266 OF 2021

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R E A S O N S   F O R

D E C I S I O N

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A.  Introduction

1.  The applicant (“Mr Wong”)’s Notice of application for leave to apply for judicial review (“Form 86”) – dated 7 September 2021, but in fact only issued on 9 September 2021 – identified the intended challenge as being to the “Decision of Tai Po District Land Office to continue to demolish the structures at Lot No. 457 in D.D. 34, Kon Hang, Tai Po, N.T., from 9 September 2021 onwards”.

2.  The relief sought was “injunction, certiorari, mandamus, Order for enquiry into damage to antiques and payment of damages” on the stated grounds that the “decision is unfair, unreasonable, irrational disproportionate, and an abuse of power in light of the objective circumstances presently obtaining including the relocation being in progress”.

3.  However, although the Form 86 commenced these public law proceedings, it turned out that Mr Wong’s complaint was really in relation to alleged infringements of his private law rights (see below).

4.  By directions on 20 September 2021, I fixed an urgent hearing for 24 September 2021, at which I said I would consider whether any interim (or interim interim) relief should be granted, and that I might determine the question of leave.

5.  Shortly prior to the hearing, the putative respondent (“Director”) filed an initial response, together with some documents and authorities.

6.  At the hearing, on the basis of the materials available, and in light of the settled principles that (a) injunctive relief will only extremely rarely be granted in judicial review proceedings prior to the grant of leave to apply for judicial review and (b) dismissal of the application for leave to apply for judicial review will render irrelevant the question of any injunctive relief, I said I would indeed deal with the question of leave at the hearing.

7.  At the conclusion of the hearing, for reasons which I said I would hand down subsequently, I dismissed the application for leave to apply for judicial review, and I dismissed the application for any injunctive relief.  I made no order as to costs.

8.  These are my Reasons for Decision.

B.  Background Facts

9.  It is necessary to put the current proceedings in their proper context, by reference to background matters, many of which were not traversed by Mr Wong in his Form 86 or his affirmation in support.

10.  As indicated, Mr Wong’s Form 86 proposes to challenge a decision relating to the continuation of demolition of structures on the particular identified Lot (“Lot”).  However, the relevant demolition is in fact not on the Lot itself, but on government land (“Site”) adjacent to the Lot.  It comes about as follows.

11.  Mr Wong and the Government entered into a short-term tenancy agreement dated 30 May 2007 (“STT”) in respect of the Site, to be used as private garden and for storage of statues.  The STT was apparently terminated on 13 December 2016, upon the expiry of six months’ formal written notice dated 3 June 2016 served by the Lands Department on Mr Wong.  The notice to quit informed Mr Wong that the Site was included in a public works project for clearance of government land for proposed development.  Although in his oral submissions, Mr Wong denied receiving such notice, that does not seem to me to matter against the subsequent events.

12.  On the effective termination date of the STT, namely 13 December 2016, the Lands Department posted on the Site a notice (“2016 Notice”) – pursuant to section 6(1) of the Land (Miscellaneous Provisions) Ordinance Cap 28 (“LMPO”) – requiring Mr Wong to vacate the Site within the stipulated time.

13.  Because Mr Wong failed to comply with the 2016 Notice – contrary to section 6(4) of the LMPO – and he then faced prosecution on a summons issued against him.  On 15 June 2020, Mr Wong was convicted of the offence of unlawful occupation of government land and sentenced to pay a fine of $30,000.  In the initial response, the Director said that Mr Wong was convicted on his own guilty plea, but I note that, in his oral submissions, Mr Wong denied that and said he had appealed against the conviction, but had heard nothing on the appeal.

14.  In any event, the Director commenced a civil action against Mr Wong in the District Court in action DCCJ 3896/2017, seeking (amongst other things) an order for possession.  By a judgment dated 8 August 2018, the Director obtained a possession order in respect of the Site.  A further notice of the proceedings was posted up on the Site on 7 April 2020, but Mr Wong failed to vacate the Site by the stipulated time of 16 April 2020. To enforce the judgment, a writ of possession was issued on 14 July 2020.

15.  In the meantime, in August 2018, Mr Wong brought a public law challenge in HCAL 1700/2018 seeking (amongst other things) to quash the 2016 Notice.  By his Judgment dated 27 May 2019, Chow J (as he then was) dismissed Mr Wong’s application for leave to apply for judicial review.  The grounds for the dismissal included (a) that the application was well out of time and (b) that the Director’s decision not to renew the STT and the decision to issue the 2016 Notice were made by the Government as a private landowner, and that such decisions fall outside the public law regime, and are therefore not amenable to judicial review.

16.  By letter dated 3 February 2021, Mr Wong made a proposal to the Director that he would demolish the structures and remove the items from the Site on or before 30 April 2021.  Mr Wong’s proposal was accepted by the Lands Department on terms and conditions agreed by both parties.  However, a site inspection on 3 May 2021 revealed that the Site had not been cleared according to the agreed time schedule.

17.  Therefore, on 3 May 2021, the Director issued another notice (“2021 Notice”) under section 6(1) of the LMPO, requiring cessation of the unlawful occupation of the Site before 3 June 2021. Mr Wong apparently failed to comply with the 2021 Notice, and ultimately demolition works commenced on 7 September 2021 (over three months later).  It is said on behalf of the Director that the work involves removal of such parts of the unauthorised structures extending from the house on the Lot to government land on the Site, but did not involve removal or seizure of the remaining items of Mr Wong left on the Site.

18.  Mr Wong’s main complaint appears to be that various items of his property – in particular antiques, statues and other artefacts of cultural or heritage significance – have been damaged.  He is also concerned that water and electricity supplies appear to have been cut.

19.  In his affirmation, Mr Wong essentially sought to explain the slow progress of the removal of the remaining items at the Site, due to his financial difficulties and poor health condition (albeit without direct supporting evidence).  In his oral submissions, Mr Wong emphasised that he was essentially seeking indulgence, so that he would have further time to cooperate with the Director and to remove the items from the Site without their being damaged.

C.   The Director’s Initial Response

20.  In addition to providing the further background matters not dealt with by Mr Wong in his materials, the initial response filed on behalf of the Director submitted that the application for leave to apply for judicial review should be dismissed for various reasons, including:

 (1)  the fact that the relevant demolition was of structures on government land, that is the Site, not on the Lot itself;

 (2)  the law is clear that the management of government land is the function of the land authority of the Government, namely the Director in this case, not the Court, and is not subject to public law scrutiny;

 (3)  Mr Wong has had almost 5 years for relocation of the items left on government land after termination of the STT on 13 December 2016;

 (4)  Mr Wong failed to disclose material facts and documents in his ex parte application, including that he failed to observe his own agreed deadline for completion of the reinstatement work including demolition of the structures and removal of the items from the Site on or before 30 April 2021;

(5)  the demolition work as part of the site clearance process following the 2021 Notice issued on 3 May 2021, meaning that there has been unduly delay on the part of Mr Wong in taking out this application.

D.     Analysis

21.  First, I do not think the ‘decision’ the subject of the intended challenge is in reality a decision at all.  The relevant demolition works are the consequence of the previous decision evidenced by the 2016 Notice (which Mr Wong failed to quash) and the 2021 Notice (which Mr Wong does not seek to challenge), both of which also themselves flow from the termination of the STT (which Mr Wong failed to impugn).

22.  Insofar as it might be said that the Director has made a ‘decision’ in declining to accede to Mr Wong’s apparent request to give him yet more time or further indulgence, that does not strike me as the kind of decision properly the subject of a challenge by way of judicial review. Indeed, this point is connected to the timing point (see below), as it is ordinarily not possible to extend the time for making a public law challenge just by asking for a change of mind and then challenging the refusal to change.

23.  But, in any event, it is settled law that the management of government land is the function of government (here, the function of the Director), not the Court.  Decisions taken in that management are not subject to public law scrutiny.  Such decisions are most likely to be regarded as private law decisions, and thus not amenable to judicial review: see, for example Tang Chi Fai v Director of Lands [2020] HKCA 339 at §§27-30, referring to and adopting a previous line of authorities.

24.  That is fatal to Mr Wong’s current application.

25.  As to the point made by the Director that Mr Wong has had almost 5 years to relocate the various items from the Site, and that he failed to keep to his own proposed and agreed schedule to do so by 30 April 2021, which was itself more than four months before the demolition works began in September 2021, that seems to me merely to point to the possibility that the Director might nevertheless have agreed with Mr Wong a further period.  But, for reasons apparently related to the upcoming tender exercise under the land sale programme involving the Site scheduled to take place in October to December 2021, no such agreement has been made.  Anyway, any such agreement would also have been an exercise of private law rights.

26.  I also think there is force in the Director’s submission that there was material non-disclosure by Mr Wong when he made his ex parte application for leave to apply for judicial review. Though some of the materials provided by Mr Wong in support of his application certainly identified that there was some previous history to this matter, other materials which I regard as material were not put before the court, as they should have been.  For example, whilst there was some reference to the agreed deadline of 30 April 2021 (shown in exhibited correspondence), there was no clear explanation as to how that came about and that the deadline was not honoured.  Further, there was no disclosure of the previous lengthy legal history, including the fact that a previous attempt to obtain leave to apply for judicial review was refused on grounds including that the application was made too late and that it involved a decision not amenable to judicial review.

27.  It is also correct that RHC Order 53 rule 4 requires an application for leave to apply for judicial review to be made promptly and in any event within three months (unless an extension of time is granted).  Particularly against the previous history, any intended application by Mr Wong should have been made much more promptly, but he failed to make the application even within the three-month period following the 2021 Notice which obviously and necessarily led to the demolition works.

28.  There are, therefore, no reasonably arguable grounds for review in this case, even if one is to assume in Mr Wong’s favour that there was a relevant ‘decision’.  Indeed, in the overall exercise of my discretion by reference to the timing of the application and the failure to disclose material matters, I would also have refused leave.  Indeed, put bluntly, any suggested urgency in these proceedings was entirely self-inflicted.

E.  Costs

29.  Notwithstanding the force in Ms Chan’s submission that these are circumstances in which the Court can properly make a costs order against the applicant for leave to apply for judicial review, in the overall circumstances of the case I decided in the exercise of my discretion that the appropriate order was no order as to costs.

30.  Nevertheless, I express my appreciation to Ms Chan for her production of the initial response filed on behalf of the Director, together with the documents which gave the fuller background, and authorities.

F.  Postscript

31.  As indicated, Mr Wong’s real complaint seems to me to relate to alleged interference with or damage to his personal property, that is a matter of private property law.  Whilst he made frequent reference in his oral submissions to arguments about “accountability” and his legal rights as a citizen of Hong Kong, his real complaint is in relation to alleged infringement of his private legal rights, which (if they have been infringed) would render the infringer accountable.

32.  As I sought to explain to Mr Wong during the hearing, the current public law proceedings are not the kind of proceedings in which he can seek the particular relief he might seek for the reasons I have identified above.  I make no comment on whether there is some other proper basis, in an ordinary civil action, for pursuing this or any other form of relief.