RE WONG KWAI LEUNG

HCAL 138/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 138 OF 2015

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D E C I S I O N

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1. This is an application for leave to apply for judicial review of two decisions, namely, as specified in the Form 86:

“(1) The decision of the Director of Lands to revoke Government Land Permit Number W00133 on 4 June 2015 as evidenced by the Notice of Revocation dated 5 March 2015; and

  (2)  The decision of the Director made on or about 8 May 2015 refusing to withdraw or vary the revocation decision, or issue a fresh Government Land Permit in respect of the land subject to Government Land Permit Number W00133 after its revocation.”

2. The applicant, Mr Wong Kwai-leung, is the son of the late Mr Wong Tak-ching, who was the holder of a Crown Land Permit No. W00133 in respect of certain land in Tsuen Wan with an area of approximately 10,890 square feet, in particular Lot 5024, Demarcation District 432, Kwong Pan Tin.  The permit was first granted in 1961 and had been renewed since year after year.  After 1997, Crown Land Permits have been known as Government Land Licences.

3. The permit specified that the land may be used for cultivation purposes and authorised Mr Wong Senior to build three structures on the land for accommodation, kitchen, and pigsty purposes. 

4. The general conditions of the permit provided, inter alia, that :

“(3) In the event of any of contravention of any of these General Conditions or the Special Conditions hereto, this permit may be cancelled forthwith without compensation ...

  (9)   No structures other than those specified ... shall be erected ...”

5. On 10 February 2004, Mr Wong Senior passed away. 

6. Certain persons have since 1980s built three squatter huts on or around the land. 

7. The squatter huts were later registered by the Government and tolerated and given squatter control numbers.  The huts numbered RTW/2AD/153 and 154 lie completely inside the land, while the one numbered RTW/2AD/156 lies partly inside and partly outside the land.  There is another structure numbered RTW/2AD/152 referred to in the Form 86 but it is not one of the structures which the Director required the applicant on behalf of the licensee to demolish and is therefore irrelevant for present purposes.

8. After the death of Mr Wong Senior, the applicant said that he had requested the squatters to vacate the land but they refused.

9. It appears from the initial response filed on behalf of the Director of Lands that on 15 October 2014 the Government’s Squatter Control Unit had cancelled the registration of the three squatter structures in question and hence they were no longer tolerated squatter structures and would have to be demolished.  The applicant, on the other hand, has asserted that the squatter licences were only revoked by the Government in January 2015.

10. On 6 November 2014, the District Lands Office/Tsuen Wan and Kwai Ching, issued a warning letter addressed to Mr Wong Senior (deceased) and to his personal representative, the applicant, requiring the demolition of the squatter huts and other unauthorised temporary structures on the land.  The unauthorised structures were identified in a layout plan and in photographs attached to the warning letter. 

11. The structures required to be demolished were coloured in red on a plan attached to the warning letter and included not only the three squatter huts but also structures standing on other areas in the land.

12. In early December 2014, the applicant attended a site inspection with staff of the District Lands Office.  According to the applicant, he was told during the inspection that if the squatter huts were removed, the permit conditions would be complied with, but the applicant pointed out that only some of the squatter huts fell within the land and they bore squatter control licences.

13. On 23 December 2014, the District Lands Office issued a second warning letter requiring the demolition of the unauthorised structures concerned.  The District Lands Office indicated that this would be the last warning and that if the unauthorised structures were not demolished within two weeks of the letter, they would take further action including cancelling the licence without further notice.

14. According to the applicant, he noticed in early January 2015 that the squatter control registration of squatter structures numbered RT/2AD/153, 154 and 156 had been revoked.  On 7 January 2015, the applicant instructed his legal representatives to write to the District Lands Office seeking an extension of time to deal with the squatter huts.

15. By letter dated 15 January 2015, the District Lands Office refused the applicant’s request for an extension of time.

16. In response to further representations made on behalf of the applicant by letter dated 10 February 2015, the District Lands officer stated that the structures that were shown coloured red on the plan attached to the first warning letter of 6 November 2014 had been erected on the site without prior approval of the District Lands Office which were neither permitted under the permit nor given any valid squatter control numbers as confirmed by the Squatter Control Unit.  Those structures were therefore considered as unauthorised structures and in breach of General Condition 9 of the permit.

17. On 5 March 2015, the District Lands Office issued a notice revoking the permit.  The notice was apparently posted at the site, and also sent to the applicant by letter dated 10 March 2015 and received by him on 13 March 2015.  This is the first decision the applicant seeks to challenge by way of judicial review.

18. On 19 March 2015, the applicant’s legal representatives issued a letter to the District Lands Office requesting the Government to withdraw the decision to revoke the permit or issue a fresh permit to the applicant so that he could continue to occupy the land, on the grounds, inter alia, that the applicant was not in a position to know how the squatters came to occupy a portion of the land but was prepared to take out civil proceedings to evict them, and the applicant was prepared to take speedy action to demolish all the unauthorised structures and had engaged qualified surveyors to assist in the demolition work.

19. At a meeting on 9 April 2015, attended by the applicant, his legal representatives and staff of the District Lands Office, the applicant indicated to the Government’s representatives that he had demolished most of the relevant structures on the land and expected that the demolition of the squatter huts would be complete by the end of April 2015. However, on the case of the Director of Lands, it appears that only two small temporary structures lying to the east of the land had been demolished at that stage.

20. By his solicitors’ letter to the District Lands Office dated 16 April 2015, the applicant stated that he needed time to deal with the squatters but would lack any legal basis to continue any litigation against the squatters upon the expiration of the permit. Accordingly, the applicant requested the District Lands Office to reconsider withdrawing the decision to cancel the permit, extend the date of expiry of the permit or issue a fresh permit to the applicant on usual terms.

21. In response, on 8 May 2015, the District Lands Office wrote to inform the applicant that the breaches of permit conditions had existed for a long time and remained unpurged after two warning letters of 6 November 2014 and 23 December 2014 and that his requests could not be acceded to in accordance with prevailing policy.  This is the second of the decisions challenged.

22. On 27 July 2015, the applicant issued the application herein by filing his Form 86. 

23. It may be noted that the challenge against the first decision was filed beyond the three months limit prescribed by the rules.

24. The proposed grounds for judicial review include the following:

(1)  that the applicant had a legitimate expectation that in coming to the two decisions, the Director would take into account the fact that the squatter huts bore valid Squatter Control licences granted by the Director to occupiers unknown to the applicant;

(2)  that the Director failed to give adequate reasons for her two decisions;

(3)  that the Director failed to take into account relevant considerations in making the two decisions;

(4)  that the Director materially erred in finding that there had been breaches of the general conditions of the permit; and

(5)  the two decisions were unreasonable in the public law sense.

25. Regrettably, the Form 86 failed to mention the case of Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169 which was only drawn to the court’s attention by the putative respondent in her initial response.  That case shows that in the present application which concerns the revocation of government land licence or refusal to grant a licence, there is a serious jurisdictional question of whether the decisions sought to be challenged are public law decisions amenable to judicial review in the first place.

26. In Chau Tam Yuet Ching, after reviewing the authorities including Canadian Overseas Development Company Limited v Attorney General [1991] 1 HKC 288, Rank Profit Industries Limited v Directors of Lands [2009] 1 HKLRD 177, and Anderson Asphalt Limited v Secretary for Justice [2009] 3 HKLRD 215, the Court of Appeal made it quite clear at paragraph 22 that, leaving aside the statutory regime of the Land (Miscellaneous Provisions) Ordinance, Cap 28:

“...decisions to grant and to cancel (on the ground of the breach of the terms of the licence) a licence for the occupation of unleased land are not susceptible to public law challenges.  Such decisions are, like decisions to grant, modify or terminate a Government lease, the grant or modification or termination of a short term waiver, “commercial decisions” which are guided by the interests of the Government as landowner or landlord and governed by private law such as the law of contract, the law of landlord and tenant and land law.”

27. The Court of Appeal further made clear at paragraphs 32 to 38 that the Ordinance seeks to streamline the process of evicting unlawful occupiers of unleased land and does not confer rights on a licensee to challenge on public law grounds a decision to terminate a Government land licence.  A person who is aggrieved by such a decision may challenge it at private law on private law grounds. 

28. In an attempt to overcome this jurisdictional hurdle, Mr Jeffrey Li who has appeared for the applicant raised three main points.  First, he submitted that the Director of Lands granted squatter control licences to strangers who occupied the land which was the subject of the permit without the consent or knowledge of the permit holder or the applicant.  The act of granting the squatter licences was in itself contrary to the terms of the permit if not directly causative of a breach of it and the Director had subsequently revoked the permit on the basis of that breach. 

29. Mr Li submitted that decisions concerning squatter licences are susceptible to judicial review, citing a decision of Court of Appeal in 曾娣對地政總署 (CACV 17/2011; 27 July 2012).  Assuming that the decisions to tolerate the three squatter huts in question were amenable to judicial review when they were first made, I do not think this introduces sufficient public law element into the decision of the Director of Lands challenged in the present case.  The applicant does not challenge the decision to register the squatter huts in question.  The decision challenged was a decision of the Government as landowner exercising its private law right to terminate a licence to occupy its land, not a decision taken in the context of squatter control.  It is well established that the mere presence of some public element in the Government’s decisions is not sufficient to transform such decisions into public law decisions. 

30. The terms of the use of the land were governed by the licence as a matter of private law.  If a licensee complains that the Government was itself directly responsible for the ground for finding there was a breach of permit conditions and consequently for terminating the permit, there is nothing to prevent the licensee from raising that point in an argument in private law, such as based on the principle against derogation from grant or an implied term: see for example Kung Ming Tak Tong Company Limited v Park Solid Enterprises Limited (2008) 11 HKCFAR 403; Rank Profit Industries Limited v Secretary for Justice [2009] 1 HKLRD 194.  There is nothing to suggest in this case that the Government came to the decisions in question for some special public law reasons or based on some special considerations that belong in the realm of public law.  In the ultimate analysis, I think the applicant has failed to show that the decisions sought to be impugned in this case were made in the public law domain.

31. Secondly, Mr Li relied on the alleged delay in processing the transfer of the permit, originally granted to Mr Wong Senior, to the applicant, which Mr Li submitted deprived him of standing to seek private law remedies against either the Director of Lands or the squatters. 

32. It will be recalled that Mr Wong Senior passed away in 2004.  The applicant apparently did not apply for a transfer of the permit until 2010. 

33. In any event, the permit had been renewed year after year subsequent to the death of Mr Wong Senior.  Mr Li was unable to explain why the applicant could not either by taking out a grant of representation as personal representative of Mr Wong Senior’s estate, or pursuant to the provisions of Order 15 of the Rules of the High Court, take any necessary legal steps for the purposes of enforcing any relevant right arising from the permit on behalf of Mr Wong Senior’s estate.

34. Thirdly, Mr Li argued that the decision is amenable to judicial review because the source of the power of the Director of Lands to terminate the permit in question was statutory, being s.5 of the Land (Miscellaneous Provisions) Ordinance.  In my view, this argument is precluded by the decision of the Court of Appeal in Chau Tam Yuet Ching which is binding on this court.  As Lam JA said in that case at paragraph 32:

“The mere fact that a licence is granted pursuant to the express authority of s.5(1) of the LMO does not take the matter further.”

Further, his Lordship said at paragraph 34:

“I cannot find anything in the LMO to suggest that the legislature intended to confer rights on a licensee to challenge such a decision on public law grounds.”

It may be noted that the permit in this case was granted in 1961, even before the enactment of the Ordinance.  The power to terminate the permit is one that could readily be found in the permit itself even in the absence of any statutory provision such as s.5 of the Ordinance.

35. For these reasons, the application for leave must be dismissed on the basis that the decisions in question are not amenable to judicial review.

(Submissions on costs)

36. As for costs, I bear in mind the general rule as stated in Leung Kwok Hung v President of Legislative Council (No 2) (2014) 17 HKCFAR 841 by the Court of Final Appeal is that an unsuccessful applicant will not be ordered to pay the costs.  There have to be some special or unusual circumstances to justify an award of costs against the applicant. The court also cautioned that the discretion of making an award of costs should be sparingly exercised.

37. The only thing in this case that has caused me to think in relation to the question of costs is the fact that the Court of Appeal’s decision in Chau Tam Yuet Ching was, in the way that I have analysed the case, conclusive against the applicant.  It could be argued, therefore, that the decisive authority against the application was a matter to be taken into account in considering the incidents of the costs.  But, on the other hand, it was a simple step to draw the attention of the court to that authority.  In the circumstances, I do not think that it is overall a sufficient reason to order costs against the applicant.

38. As to today’s hearing, it was in my view not absolutely necessary but had been held upon the insistence of the applicant. However, since I specifically informed the respondent that they need not appear, I do not think I should order the applicant to pay the costs of the respondent in respect of this hearing.  So the order I make on costs is that there will be no order as to costs.