CHU HOI DICK AND ANOTHER v. SECRETARY FOR HOME AFFAIRS

HCAL 87/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE PROCEEDINGS

NO. 87 OF 2007

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J U D G M E N T

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1.  In judicial review, the court is concerned with the legality of administrative decisions.  The court can examine whether an administrative decision has been made in accordance with the relevant legislative provisions and other common law principles securing the procedural and substantive fairness of the process.  However, the court cannot substitute its own view as regards what decision should be made.  Provided that the administrative decision is one a minister or an executive body can lawfully make, the court cannot interfere.

2.  In this application for judicial review, the Applicants challenged the decision of the Secretary for Home Affairs on 22 May 2007 as the Authority [“the Authority”] under the Antiquities and Monuments Ordinance Cap.53 [“the Ordinance”] not to declare the Queen’s Pier [“the Pier”] to be a monument under Section 3 of the Ordinance.

3.  The practical significance of the decision is that without a declaration of the Pier as a monument, the Government is not constrained by Section 6 of the Ordinance in proceeding with the works relating to the reclamation of the harbour at the Pier site.  On the other hand, if such a declaration were made by the Authority, no person shall demolish or remove the Pier except in accordance with a permit granted by the Authority.

4.  Prior to the decision of the Authority, the Antiquities Advisory Board [“the Board”] held a meeting on 9 May 2007 regarding the grading of the Pier as a historical building.  At the meeting, 12 board members voted for Grade I, 10 board members voted for Grade II and 3 members voted for Grade III.  In accordance with the usual practice of the Board, the Pier was regarded as being classified as Grade I building [“the Classification].

5.  The Classification has no statutory standing.  It is an internal mechanism of the Board.  In a paper submitted to the Legislative Council Panel on Home Affairs, the grading regime was explained by the administration as follows,

“The aim of the grading is to identify and compare the heritage value of historical buildings and to facilitate the Antiquities and Monuments Office’s [“AMO”] consideration on whether and how a particular building should be preserved and on whether the historical, archaeological or palaeontological significance of any particular building has crossed the threshold to justify the Secretary’s consideration to declare it as a monument under the Ordinance.” (my emphasis)

6.  Thus, regarding the actual measures to be adopted for the preservation of a graded building, the decision maker is AMO.  Regarding a declaration as a monument, the decision maker is the Authority.  A classification by the Board is a matter that the decision maker can take into account.  But it is by no means binding.

7.  Under the grading system, historical buildings are classified into three grades,

Grade I:     Buildings of outstanding merit, which every effort should be made to preserve if possible.

Grade II:   Buildings of special merit, efforts should be made to selectively preserve.

Grade III:  Buildings of some merit, but not yet qualified for consideration as possible monuments.

8.  In the Legco paper, the administration said,

“Though there is no specific requirement under the grading system on how the relevant historical buildings (once graded) should be preserved, AMO has all along taken administrative measures to ensure that graded buildings would be protected or preserved in such a way which is commensurate with the merits of the building concerned.  The actual preservation arrangement for any graded historical building would have to depend on such factors as the structure, condition and features of individual building, as well as the technical feasibility.”

9.  Graded buildings, even those Classified as Grade I, could be demolished.  According to the information set out in the Legco paper, out of the 607 graded buildings in the past 27 years, 54 had been demolished including 5 Grade I buildings.

10.  Further, not all Grade I buildings were declared to be monuments by the Authority.  607 historical buildings have been graded and 151 were classified as Grade I.  Out of those 151 Grade I buildings, only 28 were declared to be monuments.  At the same time, the Authority has also declared 26 Grade II buildings and 3 Grade III buildings as monuments.

11.  Hence, as a matter of actual practice in the past, a classification by the Board, whether as Grade I, Grade II or Grade III buildings, is not determinative as regards whether a declaration would be made by the Authority under Section 3 of the Ordinance.

12.  This is consistent with the scheme under the Ordinance.  Under the Ordinance, the Board only plays an advisory role: see Section 18 of the Ordinance.  In respect of the power to declare a building to be a monument under Section 3, it is crystal clear that the power is vested upon the Authority, not the Board.

13.  If the Authority were minded to make a declaration that any place, building, site or structure to be a monument under Section 3, he must follow the procedure prescribed in that section.  He has to consult the Board and obtain the approval of the Chief Executive.  The declaration has to be made by notice in the Gazette.

14.  However, on a plain reading of the Ordinance, the law does not impose any statutory duty on the Authority to consult the Board if he is not minded to make a declaration.  The Ordinance only prescribes in Section 3 how the discretion of the Authority is to be exercised if he is minded to make a declaration.

15.  Hence, Mr Pun quite properly abandoned the third ground set out in the Form 86A at the hearing for leave to apply for judicial review.  This court only granted leave on the two remaining grounds.

16.  I shall summarize the two remaining grounds as follows,

(a)     The Authority applied the wrong test in coming to his decision that no declaration should be made.  The Applicants submitted that the Authority adopted a test at variance with the one laid down in Section 3.  I shall label this as the Wrong Test challenge;

(b)    The Authority failed to take into account properly the Classification and the decision is Wednesbury unreasonable.  I shall label this as the Wednesbury challenge.

The Wednesbury challenge

17.  Since Mr Lee SC focused mainly on this ground in his oral submissions, I shall deal with it first. The Authority set out the considerations and justifications underlying his decision in a paper submitted to the Legislative Council Panel on Home Affairs for discussion on 1 June 2007.  In a supplementary paper submitted to the Panel in June 2007, the materials before the Authority and considered by him before he made the decision were set out.

18.  From these documents, it is quite clear that the Authority had taken the Classification into account when he made his decision.  As a matter of fact, the Authority instructed the AMO to review the matter in the light of the Classification.  The AMO duly conducted a review and made recommendations to the Authority on 22 May 2007.  In the submission by the AMO to the Authority, detail reference was made to the Classification and the views expressed by the members at the Board meeting of 9 May 2007 and the voting results at that meeting.  The AMO weighed the Classification against other relevant matters set out in the submission and recommended to the Authority that the Pier does not possess the requisite historical, archaeological or palaeontological significance for it to be declared as a monument.

19.  AMO is the executive arm of the Authority.  It is headed by a Chief Curator as its Executive Secretary and it has 36 curator grade officers.  They all have professional training and knowledge in heritage conservation. In contrast, even though members of the Board are experts in their respective fields, they come from all walks of life: some were lawyers, some works in the commercial sector. Although some members are professionals who have training in related fields like architecture, it is fair to say that quite a number of Board members are not specialists in heritage conservation. Therefore there cannot be any suggestion that the Authority acted on his own without having regard to the views of experts when he made the decision of 22 May 2007.

20.  Mr Yu SC referred to the observations by Litton PJ in Lau Kong Yung v Director of Immigration (1992) 2 HKCFAR 300 at 334F-H regarding the permissible parameters of a challenge based on Wednesbury unreasonableness,

“Where a department head of government is entrusted by the Legislature with administrative responsibilities it is not for the courts to say how those responsibilities should be discharged.  It is only where the administrator has acted beyond the range of responses reasonably open to him under the statutory scheme that the court’s power of intervention under Section 21I of the High Court Ordinance can properly be invoked.”

21.  As I have said earlier, under the Ordinance the discretion under Section 3 is vested on the Authority, not the Board.  In the exercise of his discretion, he could have regard to the Classification.  And the evidence shows that he did have regard to it.  How he weighed it against the other relevant matters falls primarily within the province of his judgment.  In this connection, the following judicial statements are pertinent,

“It is for the courts … to decide what is a relevant consideration. … But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense …” (per Lord Keith in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at p.764)

“The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given.  The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority.  Provided that the planning authority has regard to all material considerations, it is at liberty (provided that it does not lapse into   Wednesbury irrationality) to give they whatever weight the planning authority thinks fit or no weight at all.” (per Lord Hoffmann in the same case at p.780)

“It is for the decision-making body to decide how much importance to attach, or how much weight to give, to each of the other factors …” (per Mummery LJ cited by Lord Bingham with approval in R v City of Westminster Housing Benefit Review Board ex p Mehanne [2001] 1 WLR 539 at 545).

22.  The Applicants submitted that it is Wednesbury unreasonable for the Authority to override the views of the Board.  They relied on R v Avon County Council ex p M [1994] 2 FLR 1006.

23.  I do not accept that the Authority was acting unreasonably in the Wednesbury sense when he made his decision on 22 May 2007 nothwithstanding the Classification.  First, as mentioned, the Authority was acting in the light of expert recommendations from the AMO.  Second, there was substantial divergence of opinions amongst members of the Board.  Even though the Classification was made in accordance with the usual practice of the Board taking the Grade with the highest votes as its classification, in my view the Authority acted properly in assessing the weight to be attached to the Classification by taking into account of the fact that actually 13 out of 25 voted against Grade I.

24.  Mr Lee submitted such an analysis of the voting result is wrong.  According to counsel, the votes for Grade I and Grade II should be added together for the purpose of Section 3 consideration.  I do not agree.  For reasons set out below, it is not correct to regard a Grade I classification as equivalent to an opinion that a Section 3 declaration should be made.  Those members who voted for Grade II obviously regarded the Pier as having less merits in terms of preservation priority than a Grade I building.  Insofar as the grading has any bearing in the context of Section 3, it must be the views of the members on the preservation priority of the Pier expressed in the votes.  Plainly those voted for Grade II expressed a different view from those voted for Grade I.

25.  Third, at the meeting on 9 May 2007 the Board was not asked to give any advice to the Authority on whether a declaration should be made by the Authority under Section 3 and the Classification cannot be regarded as an implicit advice by the Board that such a declaration should be made.  On that occasion, the Board was only asked to make a classification for internal reference.  12 members indicated by their votes that the Pier is a building of outstanding merit and every effort should be made to preserve it if possible.  The Board was not concerned with how the Pier should be preserved.  The chairman urged the members to consider the matter disregarding factors such as technical feasibility of the preservation options and the future usage of the Pier after preservation.

26.  As submitted by Mr Yu, a decision not to declare the Pier as a monument does not mean that the Pier will not be preserved at all.  The administration has put forward several preservation options.  Neither the Ordinance nor the internal grading regime prescribes a particular mode of preservation as the only possible lawful option.  Under the existing legislative and administrative framework, it has always been left to the discretion of the AMO to decide which preservation option is to be adopted.  A Section 3 declaration is one preservation option and if that option is pursued, it is for the Authority to decide whether a declaration should be made.  But it is not the only preservation option, not even for Grade I buildings.  The Board has no power to dictate nor had it purported to prescribe any conclusion on the preservation options at the meeting of 9 May 2007.

27.  Mr Lee submitted that there is a close linkage between the grading system and the making of a declaration under Section 3.  Based on one of the avowed purposes for the grading of a building (viz. to facilitate the AMO’s consideration on whether the historical, archaeological or palaeontological significance of a particular building has crossed the threshold to refer the case to the Authority for his consideration under Section 3) and the statutory advisory role of the Board, Mr Lee contended that the Authority should regard a Grade I classification as an implied request from the Board to the Authority for a Section 3 declaration to be made.  Counsel further submitted that in processing such implied request, the AMO should support the views of the Board instead of putting forward a second opinion contradicting the implied request of the Board.

28.  I do not accept this contention.  There is simply no evidence to support a contention that when the Board performed its administrative advisory function in the grading system, its members harboured an expectation that all Grade I buildings would be declared by the Authority as monuments under Section 3.  At the most, they could only expect some weight be given to their classification in the screening process by the AMO.  As submitted by Mr Yu, one must not read too much into the avowed purpose of the grading system.  Facilitation of AMO’s consideration in the screening process cannot be elevated to a power on the part of the Board to dictate how the AMO or the Authority should proceed under Section 3.

29.  In this connection, it is necessary to have a clear understanding of the respective role of the Authority, the Board and the AMO.  Since the Board was established by the Ordinance, its proper role is the role set out under the Ordinance.  As provided under Section 18, the function of the Board is to provide advice.  It is not the function of the Board to make decision.  As to how its advice would be weighed in the light of other relevant matters, it is a matter for the decision maker.  In the context of a declaration under Section 3, the primary decision maker is the Authority although a declaration cannot be made without the approval of the Chief Executive.  Whilst the Board may give advice even on its own volition, it would be acting ultra vires if it purports to dictate the Authority as regards whether a Section 3 declaration should be made.  Likewise, the Authority could not direct the Authority on how he should proceed with his assessment in considering whether to exercise his power under Section 3 in the light of a Grade I classification by the Board.  Although the grading system stems from an administrative scheme instead of the Ordinance, the Board’s role is still confined to an advisory one in the context of a Section 3 declaration.

30.  Although the AMO provides secretarial and administrative support to the Board, that is not the only function of the AMO.  The AMO is also the executive arm of the Authority.  In other words, in its work pertaining to the consideration of a case under Section 3, the AMO provides assessment as the supporting organ of the Authority.  As an office with officers having professional qualifications and training in heritage conservation, it is perfectly legitimate and proper that the AMO should provide an independent professional assessment to the Authority after taking into account of a classification by the Board under the grading system.

31.  I see no basis for Mr Lee’s criticism as regards a second opinion being put forward by the AMO which is not in line with the Classification.  Having regard to the different objects in the two exercises and the past practice as regards preservation of Grade I buildings, I do not think a Grade I classification can fairly be taken as an implied request or recommendation by the Board that a Section 3 declaration should be made.  Moreover, even if the opinion of the AMO were for some reasons not totally in line with some specific advice from the Board, I see no legal justification for holding that the AMO acted wrongly if it genuinely held a professional view different from the Board.  The primary decision maker is the Authority and it is perfectly lawful for him to take into account not only the advice from the Board but also the independent assessment by the professional officers in the AMO.  To hold otherwise would in effect confer a power on the Board to dictate how matter should be considered by the Authority under Section 3.  As shown in the above analysis that would go beyond the statutory role of the Board and the role under the grading system.

32.  In the present case, the AMO referred to the Classification in the paper submitted to the Authority and he had duly taken that into account before he made his decision on 22 May 2007.

33.  The case of R v Avon County Council ex p M [1994] 2 FLR 1006 does not assist the Applicants.  That case concerns a decision by a local authority in the provision of residential accommodation for a person of infirmity in need of care and attention.  The relevant statutory provision, Section 47 of the National Health Service and Community Care Act 1990 specifically stated that the local authority shall have regard to the result of an assessment of the applicant’s needs.  What happened was that the local authority had delegated the assessment to a review panel.  The critical issue in the case was what were the needs of the applicant (see p.1019E).  The review panel, having considered a formidable body of material and heard the witnesses and lawyers acting for the relevant parties, concluded that the current needs of the applicant included psychological need and his entrenched position was part of his psychological need.  The applicable procedure under the relevant rules and guidance issued by the local authority and the Secretary of State envisaged that short of specified exceptional circumstances the findings by a review panel would be accepted, see p.1013G.  The judge described the finding by the panel as “the crucial finding, made by the body who would be expected to make the detailed examination of those facts.  Unless overthrown, it was determinative.” (see p.1018B).

34.  One can immediately see the material difference between the statutory and administrative framework underlying the assessment by the review panel in ex p M and those underpinning the Classification.  It would be quite wrong to attach the same level of significance to the Classification without regard to the completely different regime under which the present dispute arises.

35.  In ex p M, when the social service committee of the local authority made the decision on the residential accommodation to be provided, they rejected the finding by the review panel on invalid ground: see p.1018B to C.

36.  It is necessary to consider the holding by Henry J that the social services committee could not overrule the decision of the review panel without a substantial reason and without having given that recommendation the weight it required against these backgrounds.

37.  In the present context, the Board was not entrusted with the task of deciding whether a declaration should be made under Section 3 and the Authority has given solid and concrete reasons for coming to his decision of 22 May 2007 despite the Classification.  Judicial review is not the proper forum for debating whether the Authority (or the paper of the AMO placed before the Authority) got it wrong in the value judgment that the Pier does not possess the requisite historical, archaeological or palaeontological significance for it to be declared as a monument.  In these proceedings, I am only concerned with the procedural and substantive legality of the Authority’s decision.  Substantive legality includes considerations pertaining to Wednesbury reasonableness.  In my view, the Applicants failed to establish that the Authority had acted perversely or failed to give proper regard to the Classification.

38.  The Applicants made comparisons between what had been set out in a paper prepared by the AMO for the Board and the paper submitted to the Authority.  The foci of discussion in the two papers were different.  That is understandable for the simple reason that the objects of the two exercises were different.  The AMO has been consistent in holding the view that the Pier has some historical value (see Para.9 of the paper submitted to the Authority on 22 May 2007).  However, it did not consider that such value is of such significance to warrant a declaration under Section 3.  This latter opinion is not a matter that was relevant for the purpose of the meeting of the Board on 9 May 2007 and there was no reason why the AMO’s grounds for holding such opinion have to be set out in the paper tabled at that Board meeting.

39.  Mr Lee described the AMO paper prepared for the Authority as a massive U-turn.  With respect, I do not think that is a fair criticism.  As submitted by Mr Yu, the AMO has not retracted from the stance that the Pier has historical value.  At the same time, the AMO had never held the view that the Pier has such historical value to warrant a declaration under Section 3 to be made.  I do not find there was any U-turn on the part of the AMO.  As demonstrated by Mr Yu, of the six matters referred to in AMO Heritage Assessment tabled before the Board at the meeting of 9 May, most of them were subsequently referred to in the paper submitted to the Authority.  The only matter which was not mentioned was item 3 “authenticity” which in the overall scheme of things is of little moment.  In any event, the Heritage Assessment was included as an annexure in the paper submitted to the Authority.

40.  Since a Grade I classification cannot be regarded as a request from the Board that a Section 3 declaration be made, there is no question of the AMO coming up with a contrary opinion.

41.  The remaining points advanced by the Applicants under this ground and canvassed by Mr Lee in paragraph 11 of his speaking note and his oral submissions are in substance attempts to invite this court to review the weighing of the various matters embodied in the value judgment of the Authority.  As explained above, it is not the function of the court in a judicial review to embark on such an exercise.  Given my analysis, I do not think it is misleading to say that there is no automatic linkage between the grading system and a declaration under Section 3.  I shall elaborate on my assessment of the submissions regarding high threshold and pre-war buildings in my discussion on the Wrong Test challenge.  It suffices to say I do not think the submissions support a Wednesbury challenge.

42.  Hence, the Wednesbury challenge fails.

The Wrong Test challenge

43.  In a public statement made on 23 May 2007, the Authority acknowledged that the Pier has some historical value.  But he considered on the whole the value was not significant enough to warrant a declaration of the Pier as a monument.  He said the prevailing standard is a stringent one and all declared monuments have to pass a high threshold (“門檻極高”) with indisputable (“毋庸置疑”) historical, archaeological or palaeontological significance.  The Authority also mentioned that all the 63 buildings declared as monuments were of very high historical value with history dating back to pre-war times.

44.  The Applicants submitted that in so saying, the Authority applied a test not provided for in the statute in the exercise of his discretion.  In particular, the Applicants contended that the high threshold and “indisputable significance” test imposes a more stringent test than the one laid down under Section 3.  Further it is argued that the Authority in effect set a requirement for the age of a building by reference to pre-war buildings as standard.

45.  In his oral submissions, Mr Lee placed much reliance on the last point.  Counsel accepted it is legitimate for the Authority to set a yardstick but he submitted that the standard set by the Authority with reference to pre-war buildings is too stringent.  He drew attention to the benchmark set in the explanatory notes to the historic building assessment form used by the Board for grading purposes.  Paragraph 3.1.5 in the notes states,

“Building age should be above 30 years and the building should have been built in or prior to 1970, unless it is of exceptional quality and significance.”

Mr Lee submitted this is at odds with the pre-war criteria adopted by the Authority for the purpose of Section 3.

46.  Section 3 of the Ordinance empowers the Authority to consider whether to make a declaration regarding a place, building, site or structure of public interest by reason of its historical, archaeological or palaeontological significance.  In other words, a declaration can only be made in respect of a place, building, site or structure with some historical, archaeological or palaeontological significance.  The Authority cannot exercise his discretion under Section 3 in respect of a place, building, site or structure with no historical, archaeological or palaeontological significance.

47.  But it does not follow that the Authority has to make a declaration once he is satisfied a place, building, site or structure has some historical, archaeological or palaeontological significance.  After all, the declaration of a building as a monument would entail consequences under Section 6 and that may in some cases result in serious interference with property rights.  I agree with Mr Yu that one must not confuse the condition precedent to the exercise of a power under Section 3 with the prescription of the sufficient condition for the exercise of such power.  By the use of the word “may”, the statute clearly confers a discretion on the Authority not to exercise the power even if the condition precedent is satisfied.

48.  I also agree with the submission of Mr Yu that historical, archaeological or palaeontological significance is relative and dependent upon a host of factors.  It is a matter of degree in assessing whether it is in public interest to make a declaration under Section 3 by reason of a building’s historical, archaeological or palaeontological significance.

49.  If the Authority refused to consider the exercise of his power simply by reason of the age of the Pier and if he arbitrarily limited the exercise of his power to pre-war buildings, the Applicants would have a strong ground for complaining that the Authority had unduly fettered the exercise of his discretion.  As I said in the course of argument, age of a building can only be one relevant factor in assessing its historical value and it is plainly wrong to regard the age factor as conclusive without reference to other factors.

50.  However, I do not think the Authority had made such a mistake.  In the Legco papers and the AMO paper submitted to him for consideration, it is quite clear that the Authority had exercised his discretion by examining the historical merits of the Pier without ruling out the possibility of making a declaration for post-war building or structure.  In the public statement, the Authority only made reference to the fact that so far the 63 buildings declared as monuments are pre-war buildings to highlight the high threshold.  One must not read a sentence in a statement out of context.  The approach adopted by the Authority was well summarized in paragraph 11 of the paper submitted by the AMO to the Authority,

“Before considering whether a building would be declared as a monument, all relevant circumstances relating to such building should be taken into account.  All along, only those buildings that are considered to be of public interest by reason of its significant historical, archaeological or palaeontological value have been declared as monuments under the A& M Ordinance.  Using the historical buildings which have been declared as monuments as a yardstick, it is plain that the threshold of historical, archaeological, or palaeontological significance qualifying a building as a monument is very high indeed.  Up to now, only a total of 63 historical buildings have been declared as monuments, all of which are pre-war buildings.  Any new monument to be declared must of comparable significance.”

And I would also quote from paragraph 12(d),

“In considering whether a historical building should be declared as a monument for the purpose of reconstructing the history of the colonial administration in Hong Kong, we have adopted a holistic approach by considering aspects including its relationship to colonial administration, and its contributions in areas such as economic, religious, educational and medical developments of the colony.  The historical significance of the Pier as a ceremonial pier is relatively peripheral in this broad historical context.”

51.  Reading the AMO paper and the Legco paper together with the public statement of the Authority fairly, I do not think the Authority restricted his consideration for the making of declaration under Section 3 to pre-war buildings.  If the Authority had operated under such misconceived restriction, it would not be necessary for the AMO to go through the matters set out in paragraphs 6, 7, 9 to 12 in the AMO paper of 22 May 2007.  Nor would it be necessary to set out the analysis set out in paragraphs 21 to 23 of the Legco paper.

52.  Since I do not think the Authority had applied a pre-war building criterion, it is not necessary to consider Mr Lee’s submission based on paragraph 3.1.5 of the explanatory notes.  Nor is it necessary to discuss at length Mr Lee’s point in paragraph 11(9) of his speaking note as regards the minimal difference in the overall scores between the Pier and a pre-war building.  I would only say I agree with Mr Yu’s submission that the assessment form and the explanatory notes are internal documents to facilitate the Board’s grading of buildings.  They have never been put forward by the Authority or the AMO as a policy statement setting out the relevant criteria for determining whether a declaration should be made under Section 3.  As pointed out earlier, as far as an exercise under Section 3 is concerned, a grading by the Board is only a preliminary step in the screening process by the AMO.  Having regard to the serious consequence for a declared monument under Section 6, it is perfectly legitimate for the Authority to set a more stringent standard for a Section 3 declaration as opposed to a grading exercise under the administrative grading system.

53.  I now turn to the contention that the Authority had set the threshold too high.  As I said, Mr Lee accepted that given a very wide discretion is conferred on the Authority under Section 3, there is nothing objectionable for him to set a yardstick and to apply it consistently.  In his reply, Mr Lee told this court that he is not complaining about a high threshold being set, but he submitted that the current yardstick set by the Authority is far too high.  His reasons for so submitting are,

(a)     The current yardstick is contrary to the internal guidelines, namely the explanatory notes to assessment forms used by the Board for grading purposes, in particular the criterion on age under paragraph 3.1.5;

(b)    The pre-war criterion is far too stringent and is inconsistent with AMO’s own guidelines in the explanatory notes;

(c)     The standard is too strict in that many graded buildings were not declared as monuments and only a few were declared each year with a “long queue” out there.

54.  Regarding points (a) and (b), I believe I have dealt with them adequately in my discussion on pre-war criterion.  Regarding point (c), it stems from the misconception that all graded buildings (or all Grade I building) or at least a large number of them should be preserved by a Section 3 declaration.  I have already explained why this premise is flawed in the discussion on the Wednesbury challenge.

55.  The Ordinance does not set the yardstick for a Section 3 declaration.  It leaves it to the Authority to do so.  In the exercise of his very wide discretion, bearing in mind the object of the statute and the consequences of a declaration and the availability of other preservation options, a Section 3 declaration is at the higher end of the measures that can be adopted for preservation.  Therefore, it is right and proper that the Authority should adopt a high threshold in line with how the discretion has been exercised in the past.  That cannot be said to be Wednesbury unreasonable.  Nor can such threshold be regarded as unlawful.

56.  Hence, the Wrong Test challenge also fails.

Results

57.  For these reasons, I dismiss the application.

58.  On the question of costs, I understand that the Applicants are on legal aid.  Although I dismiss their application, it might be argued that this case falls within the same category as cases like Lo Siu Lan v Hong Kong Housing Authority CACV 378 of 2004, 1 March 2005 and Ho Choi Wan v Hong Kong Housing Authority FACV 1 of 2005, 5 Jan 2006 where the court held that by reason of the immense public interest in the matter and the applicants were not bringing the judicial review for personal gain, there should be no order for costs even though the applications for judicial review failed.  At the same time, whilst public interest is a relevant consideration, there are other relevant factors such as the conduct of the parties in the proceedings. 

59.  Whilst I have heard parties on the timing of the application, I have not heard full submissions on all these matters.

60.  Instead of making a costs order nisi, I direct that unless parties reach an agreement on costs by 15 August, both parties shall file written submissions on costs by 22 August.  Unless this court otherwise directs after reading the written submissions, I propose to dispose of the question of costs without further hearing. If either party wishes to have a hearing on the question of costs, such request should be set out in their written submissions.