TANG CHIU MAN AND ANOTHER v. SECRETARY FOR JUSTICE FOR DIRECTOR OF LANDS

HCAL 68/2021

[2025] HKCFI 3253

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 68 OF 2021

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AND

HCAL 916/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 916 OF 2021

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(Consolidated pursuant to the Order of Honourable Mr Justice Coleman
dated 6^th December 2021)

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J U D G M E N T

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A.  Introduction

1.  At the core of the Applicants’ case is an allegation of bad faith, that the Respondent Director of Lands (“Director”) acted with an ulterior motive in his dealings with them and in the decision he made. The central question is whether the allegation of bad faith is enough to make the impugned decision amenable to this Court’s supervisory jurisdiction, when in ordinary circumstances it likely would not be.

2.  The 1^st Applicant (“Mr Tang”) is the husband of the 2^nd Applicant (“Ms Lam”), who was the former Assistant Director of Lands. Together, they are owners of two Lots of land in the New Territories (“Land”). On 10 October 2012, the Applicants made an application to the Lands Department (“LandsD”) for the rebuilding of 4 New Territories Exempted Houses (“NTEHs”) on the Land. There is no dispute that the NTEH application was an application for approval under a lease, being the Block Crown Lease (“BCL”). The NTEH application was not an application for modification of lease.

3.  The impugned decision (“May Decision”) was given by the Director on 21 May 2021, to impose 33 conditions on the Applicants’ application to build the 4 NTEHs. The May Decision is challenged in HCAL 916/2021 (“JR2”). The May Decision was itself a revision to an earlier decision (“February Decision”) which had imposed 38 conditions.

4.  But there is an earlier challenge made in HCAL 68/2021 (“JR1”). That came about because the Applicants waited a long time – around 8 years – for their application to be determined by the Director. Hence, they issued an application for leave to apply for judicial review in January 2021, targeting the Director’s failure to determine their application with due dispatch. It is notable that the February Decision came very quickly after JR1 was issued, and it would be easy to think it was triggered by it.

5.  By my Decision dated 11 October 2021, [2021] HKCFI 3016, I ordered that the hearing for leave to apply for judicial review in both proceedings be heard together before the same judge. By my Decision dated 6 December 2021, [2021] HKCFI 3518, I gave leave to apply for judicial review in both JR1 and JR2 (“Leave Decision”).

6.  The Applicants’ substantive applications for judicial review in respect of the delay and the May Decision were heard over two days. At the hearing, the Applicants were represented by Ms Audrey Eu SC, leading Mr Andrew Tse of Counsel. The Director was represented by Mr Abraham Chan SC, leading Mr Gary CC Lam of Counsel. At the end of my hearing, I reserved my decision.

7.  This is my Judgment.

B.  Factual Narrative

B.1  The Parties and the Land

8.  As stated, Ms Lam was formerly the Assistant Director of Lands, and the wife of Mr Tang. By way of an assignment dated 20 July 2012, the Applicants became owners of Lots 1504 and 1505 in DD 112, Yuen Long, New Territories (i.e. the Land). The Land is subject to a BCL.

9.  At the time of the purchase of the Land, it contained existing structures. The Applicants wished to rebuild these existing structures into 4 NTEHs, which would be let out.

10.  According to the BCL, the user descriptions of the Land were “padi” and “waste”, signifying the Land was to be regarded as “agricultural land”. At first glance, no “house” (for residential purposes) could be built on it. However, it is undisputed that, according to the Rent Roll Record administered by the District Lands Office, the government rent on part of Lot 1504 (0.04 acre) and the whole of Lot 1505 (0.02 acre) were charged on a “house” basis, indicating that it is housing land. For all intents and purposes, this means that at some point the Government had amended the use of the Land and permitted the building of houses on 0.04 acre of Lot 1504, and 0.02 acre of Lot 1505.

11.  The Land also fell within an area zoned ‘Agriculture’ on the Shek Kong Outline Zoning Plan No. S/YL-SK/9 (“OZP”). The remaining parts of the Land fall within an area zoned as a ‘Conservation Area’.

12.  Thus, to build the NTEHs, the Applicants had to make two relevant applications. The first was pursuant to section 16 of the Town Planning Ordinance Cap 131. The second was to apply to the LandsD for approval or permission to rebuild the NTEHs under the BCL. If the LandsD approves the rebuilding of the NTEHs, the Applicants would be invited to apply for Certificates of Exemption (“CoEs”) under the Buildings Ordinance (Application to The New Territories) Ordinance Cap 121 (“Cap 121”).

13.  For present purposes, the crux of the present proceedings concerns the second application. There are two further matters concerning this “second application” that are more conveniently dealt with here.

14.  First, it is not disputed that the Applicants could, instead of applying for CoEs from the LandsD, have chosen to proceed under the Buildings Ordinance Cap 123 (“Cap 123”), in which case approval would be dealt with and granted by the Buildings Department, rather than the LandsD. However, this route – as admitted by the Applicants – is less “convenient”. If the Applicants were to obtain CoEs, they would be exempt from certain requirements for constructing NTEHs under Cap 123, which would lower the cost of construction. Indeed, the evidence shows that the Applicants at all material times intended to apply for CoEs from the LandsD.

15.  Second, the Applicants and the Director hotly dispute whether the application involves “two” stages. According to the Applicants, the first stage is to apply for approval under the BCL, when the LandsD would consider (1) whether the Applicants are the owners of the Land, (2) whether the proposed NTEH(s) is/are within the boundary of the Land, (3) any applicable lease restrictions, and (4) the zoning of the land under the relevant Outline Zoning Plan (“Stage 1”). If the LandsD is satisfied of those matters, it moves onto the second stage: i.e. to consider the CoEs (“Stage 2”).

16.  The Applicants further contend that it is only under Stage 2 that the LandsD is required to consider more technical information. The Applicants thus contend that (amongst other things) the LandsD took into account irrelevant considerations when raising several queries before approving the Application, and in then imposing 33 conditions in the May Decision at Stage 1.

17.  I will come back to this later when discussing the substantive merits of the Applicants’ grounds of review.

B.2  The Application

18.  On 12 October 2012, the Applicants’ consultants, Lanbase Surveyors Limited (“Lanbase”), wrote to apply for a license to build the 4 NTEHs. A formal application was eventually submitted on 29 April 2013 (“Application”). The Application was handed over to the New Territories Action Team 1 (comprising the Assistant Director/Estate Management, Principal Land Executive, and Chief Land Executive), and later the Rebuilding Team of Village Improvement and Special Duties Section of the LandsD. Both teams operated independently within the LandsD.

19.  From 12 October 2012 to July 2014, it is undisputed that the Application was processed smoothly.

20.  During this period, the LandsD had asked the Applicants to submit various pieces of supplementary information, including a “setting out plan (1:1000) prepared by an Authorized Land Surveyor showing the dimensions and coordinates of the proposed houses, balconies and the septic tanks” and “Survey Record Plans” in respect of the Land.

21.  The Applicants also submitted two further proposals whereby the size, siting, and layout of the proposed NTEHs were different than the one submitted on 12 October 2012 as part of the Application. The first further proposal (“2^nd Housing Proposal”) was submitted to the LandsD on 25 September 2013. The second further proposal (“3^rd Housing Proposal”) was submitted to the Town Planning Board (“TPB”) on 21 May 2014 as part of the application under section 16 of the Town Planning Ordinance (“TPO”), which was eventually approved on 25 July 2014 (“1^st TPB Application”).

22.  The Applicants made the 3^rd Housing Proposal on the basis that they could build the NTEHs on any 0.06 acre of the Land. They thought this to be the prevailing approach to cases where the Government is unable to locate the documents which evidenced the change of use of the Land from “agricultural land” to “house”. They call this the “missing lease” approach or classification (“Missing Lease Approach”).

23.  The Applicants claims that the TPB accepted that the NTEHs could be built on any 0.06 acre of the Land. Further, they claim that this was also accepted by the LandsD as well by virtue of the latter’s comments in paragraph 8.1.1(a) RNTPC Paper No. A/YL-SK/201 dated 25 July 2014 (“RNTPC Paper”) under which the First TPB Application was accepted. The LandsD refutes this. I will come back to this later.

B.3  The Press Incident

24.  After the Applicants submitted the First TPB Application, their purchase of the Land became public knowledge, which prompted Ming Pao Daily (“Ming Pao”) to lodge several questions with the LandsD concerning the Applicants’ purchase.

25.  Ming Pao followed up on their inquiries. On 6 August 2014, it published a front-page story – headlined (“地政高官管轄範圍買巨地 – 毗鄰規劃中新市鎭 涉嚴重利益衝突”). Essentially, it alleged that Ms Lam had taken advantage of insider information (namely, that the Development Bureau had planned to develop Kam Tin, Yuen Long into a new town for 100,000 inhabitants) and could earn an estimated profit of HK$50 million by purchasing the Land (“Report”).

26.  After the Report was published, Ms Lam said that she had formed the impression during meetings that the then Director, Ms Bernadette Linn, believed she was in the wrong, and that her relationship with the LandsD had “deteriorated quickly”.

27.  The Independent Commission Against Corruption and the HKSAR Government commenced investigations against Ms Lam from August 2014 onwards. The detail need not be repeated here. It is important to note that she was eventually cleared by both entities of all allegations of misconduct, in March 2015 and in June 2017 respectively.

B.4  The Impact of the Report on the Application

28.  According to the Applicants, however, the Report still had a negative impact on their Application.

29.  The Applicants contend that after its publication, they were subject to unusual treatment. On 7 August 2014, they were asked to demolish all existing structures on the Land in the absence of any complaints. On 28 September 2014, the Applicants made an application for agricultural structures to be erected on the Land – but it was only approved after 6 months (rather than 1 or 2 months).

30.  According to the Applicants, the high point of the “unusual” treatment was when they were subject to various requisitions from the LandsD (“Requisitions”) across a span of 7 years. The Requisitions were made by the LandsD against the following background.

(1)  Requisition 1: On 26 November 2014, the LandsD sent a letter to the Applicants clarifying whether the 2^nd Housing Proposal or 3^rd Housing Proposal was to be used for the Application. On 16 February 2015, on behalf of the Applicants, Lanbase confirmed that they wished to use the 3^rd Housing Proposal.

(2)  Requisition 2: On 26 August 2015, the LandsD indicated that the Application had been referred to its Task Force (Land Control & Lease Enforcement) Section, Survey and Mapping Office (“SMO”), which required further land survey submissions, including a Survey Record Plan, Survey Report, and the supporting document for further comment, as it considered the 3^rd Housing Proposal to be “very close to the lots boundaries”. The LandsD requested the Applicants to submit the relevant documents within 2 months, which the Applicants duly did on 4 September 2015. I note that the Director says the SMO gives comments independently based on facts and relevant expertise, without any kind of influence or interference from the Action Team and Rebuilding Team of the LandsD.

(3)  Requisition 3: On 26 April 2016, the SMO commented that according to the 3^rd Housing Proposal, only “11.357 m² (about) of the four house proposals is on Lot 1505 while the remaining 231.359 m² (about) is set aside on Lot 1504. As such, the area of the four house proposals on Lot 1504 is larger than that entitled for rebuilding, and I have reservation on the rebuilding proposals in this regard”. In more layman’s terms, the SMO held that the NTEHs must be built on 0.04 acres on Lot 1504, and 0.02 acres on Lot 1505, and could not be lumped together (contrary to the Missing Lease Approach adopted by the Applicants).

(4)  On 27 October 2016, and after two extensions of time sought by them, the Applicants submitted a revised housing proposal (“4^th Housing Proposal”) to allay the LandsD’s concerns. It can be noted here that the 4^th Housing Proposal was only submitted after email correspondence between Ms Ivy Ng of Lanbase and the LandsD, where the latter pointed out that a Survey Plan as submitted by Lanbase on 23 September 2016 did not actually have a proposed septic tank, which should have been coloured pink.

(5)  Requisition 4: After the 4^th Housing Proposal was submitted, and in light of how it was “distinctively different” from the 3^rd Housing Proposal that was approved by the TPB as part of the First TPB Application, the LandsD sought further comments from the Planning Department (“PlanD”) as to whether another application under section 16 of the TPO was required and further consulted the SMO for comment on 9 November 2016.

(6)  Without any response, the LandsD sent further chasers to the SMO and PlanD on 29 December 2016. The LandsD only received substantive comments from the SMO on 16 February 2017, but did not immediately relay the comments to the Applicants, as it wished to wait for the PlanD’s comments as well.

(7)  But after letters from Mr Tang on 20 February 2017 and 9 March 2017 – incidentally showing Mr Tang’s growing dissatisfaction as to the progress of the Application, to the extent he threatened to make a complaint to the Ombudsman if the Application was not determined by 20 March 2017 – the LandsD evidently felt that it could not wait any longer. On 17 March 2017, it conveyed the SMO’s preliminary comment: “Please be informed that the revised proposal is considered unacceptable from the land boundary point of view because (i) The proposed balcony of the proposed New Territories Exempted House (“NTEH”) highlighted in PINK in plan No. SH15045-D will protrude over the adjoining Lot No. 1503, (ii) any projections on side B-C-D-E of the proposed NTEH highlighted in BLUE in plan No. SH15045-D will protrude over the adjoining Lot Nos. 1781 and 1786, (iii) any projections on side E-L of the proposed NTEH highlighted in GREEN in plan No. SH15045-D will protrude over the adjoining Lot No. 1786”. Thus, the LandsD “requested” the Applicants to take necessary corresponding action, so to “eliminate potential disputes between adjoining landowners”.

(8)  After (amongst other things) a meeting between Mr Tang, the Applicants’ Architect / Authorised Person – Eureka Limited – and the LandsD on 5 May 2017 to “clear the air”, the Applicants submitted a “5^th Housing Proposal” to the LandsD on 5 June 2017, which ultimately did not attract any adverse comment from the SMO.

(9)  Requisition 5: After multiple chasers from the LandsD to the PlanD on 29 December 2016, 23 February 2017, 23 May 2017, and 20 June 2017, the PlanD ultimately advised the Applicants that a fresh application under section 16 of the TPO had to be made, as the 5^th Housing Proposal encroached on the Conservation Area of the OZP on 29 August 2017. Accordingly, on 18 September 2017, the LandsD advised the Applicants to respond to the PlanD’s comment within 3 months. On 2 March 2018, the Applicants – through another consultancy firm Goldrich Planners & Surveyors Limited (“Goldrich”) – made a new planning application, which was approved on 7 September 2018 (“2^nd TPB Application”).

(10)  Requisition 6: After circulating the 5^th Housing Proposal to various governmental departments – including PlanD, the Home Affairs Department (“HAD”), the Drainage Services Department (“DSD”), and the Civil Engineering and Development Department (“CEDD”) – for comments on 20 June 2017, the LandsD conducted a site inspection of the Land on 6 September 2017, which ultimately yielded a Ground Features Report which revealed a slope of more than 1.5m in height within 10m from the site boundary.

(11)  Consequently, on 9 October 2017, the LandsD sought comments from the Geotechnical Engineering Office (“GEO”) of the CEDD to ascertain whether a CoE could be issued in such circumstances.

(12)  In turn, on 16 October 2017, the LandsD received comments from the GEO which advised that the proposed NTEHs were “immediately at the toe of a steep natural terrain overlooking the Lots and meet the alert criteria for a natural terrain hazard study (NTHS)”, and the GEO would consider this to be an “in-principle objection” unless the Applicants undertook the “NTHS Study” and provided “suitable hazard mitigation measures”. The GEO then advised that “the criteria for exemption of site formation works are not met and therefore Certificate of Exemption for Site Formation Works should not be issued at this stage for the captioned lot”.

(13)  On 27 October 2017, the GEO’s comments were relayed to the Applicants. After Mr Tang indicated that they would liaise with the GEO directly regarding the submission of an NTHS on 12 September 2018, the Applicants submitted their NTHS Study on 7 November 2018, which was conveyed to the GEO the next day by the LandsD. The LandsD also asked the GEO to comment on the NTHS Study within 1 month.

(14)  Requisition 7: On 31 January 2019, the LandsD asked for a proposed site formation level for the Land with a “spot level diagram prepared by the appointed Authorized Land Surveyor”. This was duly complied with by the Applicants on 4 March 2019. On 24 July 2019, the LandsD urged the Applicants to further revise the mean of the spot heights at the corners of the proposed NTEHs below the proposed site formation levels, but after the Applicants expressed their strong intention not to do on 21 August 2019 on the bases that (1) neither the BCL nor the TPB so required and (2) the Applicants’ proposed site formation level was to avoid flooding during heavy downpour, the LandsD withdrew their suggestion on 5 September 2019. The LandsD later explained this by saying this was a “general practice adopted by the New Territories District Lands Offices for control against arbitrary raising of the site levels for the approved NTEH developments”.

(15)  Requisition 8: After two chasers dated 23 May 2019 and 11 July 2019 from the LandsD, the GEO finally sent its comments on the NTHS on 23 July 2019. The GEO had a list of 5 comments in relation to the NTHS Study. On the same day and in light of the GEO’s comments, the LandsD invited the Applicants to submit a “Revised NTHS” within 6 months, including concerning ground investigations, tension cracks, and rock outcrops. This was duly completed on 11 September 2019. On 13 March 2020, the GEO indicated that it had no further comments as to the Revised NTHS.

(16)  Requisition 9: On 3 September 2019, the LandsD further asked the GEO whether a Geotechnical Assessment Report (“GAR”) was necessary. On the same day, the GEO stated that they considered a GAR necessary as “slopes with more than 1.5m in height are identified within 10m of the site boundary on site shown in” the Ground Features Report.

(17)  However, only on 25 October 2019 did the LandsD request the Applicants to appoint an Authorized Person or qualified geotechnical engineer to submit a GAR to the satisfaction of the GEO. On behalf of the Applicants, GeoRisk Solutions (“GeoRisk”) duly did so on 20 December 2019.

(18)  A revised GAR was submitted on 18 January 2020. On 13 March 2020, the GEO – and by extension – the LandsD stated that it had no further comments on the GAR. The GEO further indicated that if the Applicants were to apply for a CoE, the GEO would have no geotechnical objections. The GEO also advised the Applicants as to the conditions that would normally be affixed to the issue of the CoE.

31.  While the LandsD made the various Requisitions, it also consulted the public on 19 December 2018. On 10 July 2019, the LandsD informed the Applicants that it had dismissed 11 out of 12 public objections, except one relating to fung shui. On 11 October 2019, this was ultimately considered at the Yuen Long District Lands Office Conference (“YLDLOC”) and overruled.

32.  After (amongst other things) the Requisitions were satisfactorily answered and the LandsD obtained “all necessary information”, the LandsD submitted the Application to the YLDLOC for its deliberation on 20 May 2020. The YLDLOC recommended the approval for the rebuilding of the NTEHs, subject to (amongst other things) conditions concerning development, balconies, canopy and windows/openings and projections.

33.  Time marched on. The Applicants’ solicitors had written to the LandsD on 2 April 2020 and 30 July 2020 twice to “chase” the LandsD for the determination of the Application. But the LandsD had yet to approve the Application. According to the LandsD, the reason for this delay was because it had to seek legal advice from the Department of Justice as well as the Land Registrar during this time.

34.  On 20 January 2021, the Applicants decided that they had waited long enough. They took out an application for judicial review, i.e. JR1.

B.5  The 38 (and later 33) Conditions

35.  Coincidentally or otherwise, the Application was then determined. On 26 February 2021 – around 8 years after the Application was first lodged – the LandsD approved the Application, but with 38 conditions. Aggrieved, the Applicants wrote back on 7 April 2021, explaining why the conditions were not acceptable.

36.  On 21 May 2021, the LandsD wrote back and reduced the number of conditions from 38 to 33, i.e. the May Decision.

37.  Still dissatisfied, the Applicants commenced JR2 on 25 June 2021. The Applicants contend that the Decision, or at least some of the 33 conditions (“Conditions”) in the Decision, should be quashed due to various public law irregularities.

38.  The Applicants zero in on the following 22 Conditions (“Challenged Conditions”).

(1)  Condition 1: The roofed-over area of the NTEHs to be constructed on the Lots must not exceed 61.14 m² (House 1), 60.17 m² (House 2), 60.72 m² (House 3), and 60.72 m² (House 4). It further provided that each of the houses must be self-contained and have an exclusive access (i.e. a communal staircase which shall result in each of the houses being internally linked to and accessible from any house adjoining or adjacent thereto is not allowed). It further clarified that only an internal staircase that served the upper floors of each of the houses would be allowed.

(2)  Condition 2: This stipulated that the NTEHs could not be used for any purpose other than non-industrial purposes. Except for the building site of the Lots, the remainder of the Lots could not be built upon and could only continue to be used for agricultural or garden purposes.

(3)  Condition 3: It stipulated that the NTEHs could not be divided vertically.

(4)  Condition 5: It required that each of the NTEHs to be constructed would not contain more than three storeys nor exceed a height of 8.23 m (27 ft), excluding the height of a parapet not exceeding 1.22 m (4 ft) in height and a stair hood not exceeding 7.44 m² (80 sq ft) in area and 2.14 m (7 ft) in height. It further stipulated that the stair hood shall be used solely for the purpose of covering the staircase and gaining access to the roof. One water storage tank, not exceeding 2 m² in area and 1.22 m in height, may be installed at any point (other than on the stair hood) on the roof of each of the houses.

(5)  Condition 6: It provided that no more than two balconies and one canopy for each house will be permitted to project over and above the Lots. Further, it provided (1) that balconies and canopies could only be erected on certain sides of each NTEH and for a distance of not more than 1.20 m, and (2) each balcony must have a parapet or railing not exceeding 1.22 m not less than 0.92 m in height along the outer edges and shall not be enclosed.

(6)  Condition 7: Any air-conditioner hood to be constructed shall not project for a distance of more than 0.61 m from each of the houses within the Lots.

(7)  Condition 8: Any overhang to be constructed for the purpose of providing protection from rain or sun shall not carry any floor load and shall not project for a distance of more than 0.23 m from any wall of each of the houses within the Lots.

(8)  Condition 13: This stated particular site formation requirements as advised by the GEO, including that the sites of Houses 1 and 2 shall be formed at +48.33mPD or such other levels as may be approved, and the sites of Houses 3 and 4 shall be formed at +47.35mPD or such other levels as may be approved.

(9)  Condition 14: It relates to various windows, openings and projection requirements for the NTEHs. Amongst other things it was stipulated that no outward opening windows, openings, or projections would be allowed on certain sides of the NTEHs.

(10)  Condition 15: This required the Applicants to construct septic tanks and soakage pits on certain sides of the NTEHs (inter alia) underneath the balconies and at the south-eastern corner of Lot 1504.

(11)  Condition 16: This required submission and implementation of a tree preservation and landscape proposal to the satisfaction of the Director of Planning or TPB. A “No Objection to Occupy” Letter would not be issued unless the approval proposals are implemented to the Director’s or TPB’s satisfaction.

(12)  Condition 17: This required the Applicants to implement a Natural Terrain Hazardous Study to the satisfaction of the GEO, CEDD, or the TPB, failing which a “No Objection to Occupy” Letter would not be issued.

(13)  Condition 18: This required the Applicants to implement the drainage facilities on site in accordance with the approved drainage proposal to the satisfaction of the Director of Drainage Services or the TPB. A similar requirement would be incorporated in the CoE. Again, a “No Objection to Occupy” Letter would not be issued unless this proposal was implemented to the satisfaction of the Director or TPB.

(14)  Condition 19: This stipulated further advice from the Drainage Services Department. For example, the Applicants were required to have adequate storm-water drainage collection and disposal facilities to deal with surface runoff of the sites. If the facilities would be connected to existing drainage facilities, the consent of the relevant owners or parties who are responsible for their maintenance would have to be obtained.

(15)  Condition 20: This required the Applicants to follow various requirements imposed by the Environmental Protection Department, including the Practice Note for Professional person (ProPECC) PN 5/93, and adopt appropriate pollution control measures.

(16)  Condition 21 required the Applicants to follow from GEO, CEDD in respect of the site formation works, including an (1) adequate temporary surface drainage system connected to a proper discharge point during construction works, (2) adequate permanent drainage system connected to a proper discharge point shall be provided, and (3) record plans with surveyed spot-levels and photographs showing satisfactory completion of the site formation works shall be submitted to the District Survey Office / Yuen Long (“DSO/YL”) for record.

(17)  Condition 22: This required the Applicants to demolish the existing structure(s) within the Lots at their own expense before any issue of a “No Objection to Occupy Letter”.

(18)  Condition 24: This required the Applicants, upon completion of works, to submit as-built record plan prepared by their Authorized Land Surveyor indicating the locations of the 4 NTEHs, the position of balconies, and site formation level to the satisfaction of DSO/YL prior to the issue of a “No Objection to Occupy Letter”.

(19)  Condition 25: This stipulated that no grave or columbarium could be erected or made in the NTEHs on the Lots. Nor could any human remains, animal remains, whether in earthenware jars, cinerary urns or otherwise be interred or deposited on the Lots.

(20)  Condition 27: This required the NTEHs to be built on the Land according to the provisions of all ordinances, byelaws and regulations relating to building, town planning and sanitation which are or may be in force in the New Territories in all respects.

(21)  Condition 31: This required the Applicants to apply for issue of CoEs under Cap 121 in respect of Building Works, Site Formation Works and Drainage Works before they could commence construction. An application form was attached.

(22)  Condition 33: This required the Applicants to inform the DLO Yuen Long in writing with a construction completion report (Form CE/4) within 2 weeks of the completion of the NTEHs for inspection. The District Lands Officer may then issue a “No Objection to Occupy” Letter upon request, provided she is satisfied that (inter alia) the above conditions were complied with.

39.  Further, the Applicants were required to provide an undertaking and signify their understanding as per Appendices II and III of the letter that contained the May Decision.

C.  Grounds of Review

40.  In their Form 86 for JR1, the Applicants advance 3 grounds of review in light of the LandsD’s failure to determine the Application prior to 26 February 2021:

(1)  First, that the Director was wrongly motivated by ulterior purposes, i.e. political or other extraneous considerations. The Applicants contend that the failure to determine the Application was due to the Director’s fear of further media coverage and political outcry, or alternatively, to penalise Ms Lam for causing the LandsD “trouble or inconvenience”. Not only do they point to the unusual nature of the Requisitions and other surrounding circumstances – such as the demand from LandsD to demolish all existing structures on 7 August 2014 – they also point to how the Application had been processed for nearly 8 years.

(2)  Second, that the Director took into account irrelevant considerations when failing to determine the Application. In particular, they contend that the Application at Stage 1 is solely governed by a section of the LandsD internal guidelines: namely, Land Administration Office Instruction, Section D-31, Applications for Rebuilding of New Territories Exempted Houses dated 15 April 2013 (“LID-31”). It is the Applicants’ case that “technical” matters – such as the positioning of the septic tanks, the natural terrain hazard study, or geotechnical assessments – are not to be considered at Stage 1, but rather at Stage 2 when CoEs are to be applied for.

(3)  Third, the Respondent’s failure to determine the Application constituted inordinate delay. Such delay was caused by (inter alia) the contents of the Requisitions – which were irrelevant to the determination of the Application – and the piecemeal manner in which they were raised. In particular, they say that the Application could have been determined by 30 June 2015. The delay is calculated as follows: on 16 February 2015, after the Applicants confirmed they wished to use the 3^rd Housing Proposal as the basis for their Application, it should have taken the LandsD 3 months to refer the Application to the District Lands Office Conference for approval, which would take about a month. Even assuming a margin for error of about 2 weeks, the Application should have been approved by 30 June 2015. The margin of error is likely derived from paragraph 3.5 of LID-31, which states that “The Approval Letter should be issued to the applicant(s) within 2 weeks from approval for cases approved by CLE and 1.5 months from approval for cases approved by DLOC”.

41.  In their Form 86 for JR2, the Applicants advance no less than 9 grounds of review. They are as follows:

(1)  By imposing Conditions 2 to 3, 13 to 22, and 24 to 25, the LandsD failed to adhere to standard practice. Under LID-31, there is a “standard approval letter” to be adopted for the Application, which does not contain these Conditions and does not require an applicant to provide an undertaking. The Applicants contend there was no reason – certainly no good one – to depart from this “standard practice”. Indeed, the Applicants say the failure to adhere to standard practice is motivated by the “political and extraneous” considerations referred to above.

(2)  By imposing the Challenged Conditions, the same irrelevant considerations were taken into account.

(3)  The imposition of the Challenged Conditions was motivated by ulterior purposes, as evidenced by (1) the delay, (2) the raising of purportedly irrelevant Requisitions, and (3) the piecemeal manner in which they were made.

(4)  Conditions 1 and 13 are so unreasonable that they involve an oppressive or gratuitous interference with the Applicants’ rights. This is because the specifications were too precise, such that any deviation – irrespective of whether it was de minimis or accidental – would result in the non-issue a “No Objection to Occupy Letter” under Condition 33.

(5)  The imposition of the Challenged Conditions amount to abuse of power, as this – in effect – constitutes a “unilateral variation” of the BCL. The Applicants point to Conditions 2 and 25 in particular, which they say are not existing restrictions in the BCL. Condition 2 stipulates the NTEHs can only be used for non-industrial purposes. Condition 25 stipulates that no grave or columbarium can be erected on the Land.

(6)  The Challenged Conditions breached the Applicants’ legitimate expectations, which are (1) that LandsD would deal with the Application under the BCL (rather than its variant), and (2) that LandsD would adhere to standard practice in determining its Application.

(7)  The LandsD cut down or restricted the Applicants’ rights in law by imposing Conditions 6, 13, 18 and 31.

(8)  Condition 22 is unreasonable as its wording is insufficiently precise.

(9)  The Challenged Conditions breach the Applicants’ property rights under Articles 6 and 105 of the Basic Law (“BL 6” and “BL 105”).

42.  For JR1, the Applicants seek an order of mandamus for the Director to determine the Application. In contrast, for JR2, the Applicants seek to quash the May Decision and an order of mandamus for the reconsideration of the Application.

43.  In both JR1 and JR2, the Applicants seek damages pursuant to section 21K of the High Court Ordinance Cap 4 and Order 53, rules 1 and 7 of the Rules of the High Court Cap 4A for imposing the Challenged Conditions for a breach of an implied term of the BCL, as derived from Braganza v BP Shipping Ltd [2015] 1 WLR 1661 at §18 – namely, that contractual discretions must be exercised in a non-arbitrary, non-capricious, and rational manner (“Implied Term”).

44.  Before I address JRs 1 and 2, I must first address the two preliminary points, which could render consideration of the grounds unnecessary.

D.  Is JR1 Academic?

45.  There was originally an issue as to whether JR1 was commenced in time, but that ceased to be an issue by the time of the substantive hearing. I can therefore run instead to the question of whether JR1 became academic.

46.  In my Leave Decision, I said that I did not think that JR1 is necessarily academic, following the February Decision and the May Decision and the commencement of JR2. I referred to (1) the point that JR1 and JR2 can arguably be said to claim different aspects of damages for different periods on different bases, and (2) that it could be argued that the duties of a public body fall to be exercised on a continuing basis, and the underlying aspects of challenge in JR1 relate to that kind of point.

47.  However, after full argument, I agree with Mr Chan, for the Director, that JR1 is or has become academic.

48.  The gravamen of the Applicants’ complaint in JR1 was that the Application had not been determined yet and the Applicants could not proceed. But – after JR1 was issued – the Application was determined, albeit with addition of the Challenged Conditions. First, there was the February Decision, then the May Decision which revised it. The Applicants know what they have to do to rebuild the NTEHs – they either comply with the Conditions or they successfully contend that they are improper, such that the Director will drop those Conditions – which is the target in JR2. As such, the “real dispute that drove the parties to the litigation” simply was no longer in existence from the time of the May Decision (and probably even the February Decision): see Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20(2).

49.  My view is fortified by how the primary public law remedy sought by the Applicants in JR1 – the order of mandamus to compel the Director to determine the Application – would be of no practical utility.

50.  I was initially impressed by the point made by Ms Eu, that because the two JRs target two different alleged wrongs – JR1 targets the delay, JR2 targets the Challenged Conditions – the Applicants may be entitled to damages across two periods. JR1 claims damages for breach of the Implied Term from 1 July 2015, and JR2 claims damages from 26 February 2021 until the Application is ‘properly approved’. Hence, it was said that it might be of some utility for JR1 to be heard as the Applicants may be entitled to more damages as a result. But ultimately, I do not think that argument should succeed.

51.  An application for an award of damages must be made together with the remedies as specified in Order 53, rule 1(1) and rule 1(2) of the RHC. The corollary is that the applicant cannot seek damages alone: see my decision in Tong Wai Yee Winnie v Secretary for Education [2023] 1 HKLRD 410 at §15. Thus, if the “primary remedy” is or has become academic, I do not think – as a matter of principle – the Applicants can rely on the ancillary remedy of “damages” so to keep JR1 “alive”.

52.  I also do not think there is good reason in the public interest for JR1 to be continued through to a full conclusion. The grounds of review in JR1 are fact-specific. I cannot imagine that there might be a “large number of similar cases” where the Respondent is accused of failing to determine his or her NTEH rebuilding application because it allegedly wished to minimise political outcry or penalise the applicant – the facts of this case are apparently unique: see Chit Fai Motors at §20(3) (citing R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450).

53.  In any event, according to the Respondent’s evidence, only 18 out of 2,561 NTEH rebuilding applications from 2016 to 2020 took 8 or more years for determination. Indeed, if delay was a common feature across most NTEH rebuilding applications, it is difficult to see how the Applicants’ core allegation – namely, that it was motivated by bad faith – has any foundation.

54.  I also think that the real concerns underlying JR1 can be ventilated as relevant to the grounds made and relief sought in JR2 (see below).

E.  Are the JRs Amenable to Judicial Review?

E.1  Grant of Leave

55.  In my Leave Decision, I declined to refuse leave on the question of amenability to judicial review.

56.  It seemed to me that this particular case on its facts (as asserted by the Applicants, and for the purposes of the leave application assumed in their favour) reached the arguability threshold for the grant of leave to apply for judicial review. I thought that the fact-sensitive matters might themselves be relevant to an ultimate resolution of the question of amenability, as well as to other questions as would arise on the substantive application for judicial review. Further, the degree or extent of the impact that allegations or findings of ulterior motive or bad faith might have on amenability seemed to me to be a potentially important point worthy of full exploration at a substantive hearing.

57.  Nevertheless, I acknowledged the weight of prior authority which strongly supports the stance taken for the Director: see Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215 (“Anderson Asphalt (CFI)”)at §57; King Prosper Trading Ltd v Urban Renewal Authority (unreported, HCAL 56/2009, 17 December 2010), at §§26-31; and the cases referred to in those decisions – and see, further, below. I accepted that it is authoritatively settled that a Government lease is a private lease, and ordinarily in relation to steps taken on the lease the Government is acting in a private capacity and thus not subject to judicial review.

58.  I return to the question of amenability on the substantive application.

E.2  Established Authorities

59.  Not every decision made by a public body is amenable to judicial review. It is trite that if the role performed by the public official is an essentially private and purely commercial one – one which is no different in substance from one made by an ordinary citizen – then the decision is not reviewable under public law: see Anderson Asphalt (CFI) at §§40-41.

60.  The critical question for determining whether a decision by a public body is amenable to judicial review is also settled. The source of the power is undoubtedly an important factor to take into account. But, the source of the power so exercised is not dispositive of whether a decision is amenable to judicial review: see R (Mullins) v Jockey Club [2005] EWHC 2197 (Admin) at §29; and Mauritius v CT Power Ltd [2019] UKPC 27 at §§43-45.

61.  It is similarly – if not more – important to consider whether the nature of the power and the function being exercised mean the decision had a “sufficient, public element, flavour or character to bring it within the purview of public law”: Anderson Asphalt Ltd v Secretary of Justice (“Anderson Asphalt (CA)”) [2010] 5 HKLRD 490 at §§57-61.

62.  What amounts to a sufficiency of public elements to render the decision-making process amenable to judicial review is a matter of fact and degree, depending very much on individual cases. Questions of amenability, like all questions of law, also depend on the relevant practical and legal context in which they arise. No hard and fast rule can be laid down. It is, in a borderline case, very much a matter of overall impression and one of degree.

63.  In Anderson Asphalt (CA), where the Court of Appeal decided that the Director of Lands’ refusal to terminate short-term waivers granted to entities erecting and operating asphalt production plant on agricultural land was not amenable to judicial review by the competitors of those entities, it drew upon Hunter J’s remarks in Shun Shing Hing Investment Co Ltd v Attorney-General [1983] HKLR 432, 434 in the following terms:

A peculiar, if not unique, feature of life in Hong Kong is that the Government is the sole ground landlord. It is the provider of land and can combine the functions of landlord and planning authority. Thus Hong Kong Government can do what many planning officers in the UK would give their eye-teeth to be able to do. They can charge developers a premium for the benefit of the permission they are giving them.

64.  In light of these unique advantages that the Hong Kong Government enjoys – including the financial benefit of charging premiums, its ability to dictate the pace and quality of development, and the enforcement of its terms via forfeiture – the Court of Appeal in Anderson Asphalt (CA) remarked (at §37) that the Court should examine the evidence carefully to see if the applicants have made out their case that the Government has decided to abdicate its traditional role of private landlord and has taken upon itself the role of a non-statutory planning authority, such as to expose itself to the risk of judicial review.

65.  Further, it held (at §39) that precisely because the Hong Kong Government inherently combines the functions of landlord and planning authority, the mere element of planning does not turn the acts of the Director from those of a private landlord into ones within the public domain. Otherwise the Government loses its unique advantages in this jurisdiction. This was also discussed in Anderson Asphalt (CFI) at §§62, 76-78, including by reference to R (Molinari) v Kensington and Chelsea Royal LBC [2001] EWHC Admin 896 at §§58-72, a case relied on by Ms Eu and in which it was held that a decision under a lease to refuse to consent to change of user was amenable to judicial review because the authorities were exercising a statutory function by giving effect to planning policy through the contract. The point in effect leads back to the sufficiency of the public element:

62.  As I have analysed, the mere presence of an element of planning control in the decision-making process is not in itself sufficient to turn a decision on lease modification into a public law one, amenable to judicial review, according to the authorities discussed above – many of which are directly binding on this Court. And as has been pointed out in most if not all of these lease modification cases, the user restriction in question must have been inserted into the relevant title document not only for a commercial or economic interest, but also for planning considerations. Hartmann J expressly recognised this self-evident reality in Rank Profit, supra, at p 187 (para 75).

…

76.  Molinaro has been specifically distinguished by the Court of Appeal in Rank Profit, which is of course binding on this Court. In any event, it is not an authority for saying that whenever a decision is motivated by some planning considerations, it must be a public law decision amenable to judicial review. That sort of proposition has no currency in Hong Kong based on the authorities already described.

77.  Molinaro was distinguished by Tang VP in Rank Profit on the ground that what was involved in the English case was the exercise of statutory powers to perform statutory functions, whereas in a typical lease modification case, no statutory power would be involved. Mr Litton has criticised the distinction drawn by the learned judge as unsustainable. However, it should be noted that in Molinaro itself (in paras 74 and 75), Elias J himself distinguished an earlier English case, R v The Lord Chancellor, ex parte Hibbit and Saunders [1993] COD 326 (concerning an unsuccessful complaint against a Government tendering process) by pointing out that the power to contract there was not conferred by statute and the Lord Chancellor’s Department was exercising a common law power. The judge observed that the courts had traditionally shown greater caution towards reviewing the common law powers of the Crown compared with statutory powers.

78.  Free from authority, again, the fallacy of the argument lies in assuming that whenever some element of public interest or benefit or some published public policy is involved, the decision in question must be a public law one. No, the true question is whether some public element(s) of sufficient weight is/are present in a particular case so as to render the function performed a public one, and the decision made a public law decision amenable to judicial review.

66.  In any event, “enlightened landlords” may also incorporate an element of planning to preserve the value of the estate: Rank Profit Industries Ltd v Director of Lands [2009] 1 HKLRD 177 at 190. In other words, planning is not an inherently “public” matter.

67.  Further, it has been authoritatively determined that Government leases are private agreements. When modifying leases – or choosing whether to grant or withhold its consent to the modification of the terms of a lease – the Government acts in a private capacity. Their decisions are thus not subject to judicial review: see Hang Wah Chong Investment Co Ltd v AG of Hong Kong [1981] HKLR 336 at 341-342C; and Director of Lands v Yin Shuen Enterprises Ltd (2003) 6 HKCFAR 1 at §19.

68.  The line that the Government acts in its private capacity in respect of matters concerning the governance of its own land – no matter in relation to the price and the terms offered for modifying leases, irrespective of whether the terms are “extraneous” or not (as in Rank Profit) or in rejecting proposals to develop land further for being inconsistent with a master layout plan set by the Government (as in Canadian Overseas Development Co Ltd v Attorney-General [1991] HKC 288) – is to be jealously guarded and not to be easily disturbed. This is because of policy concerns that are intrinsic and extrinsic to the law – intrinsic, because this relatively hard-edged rule promotes certainty within our system of law as to which decisions of Government are reviewable; extrinsic, because it ensures the Government is not “fettered” in its contracting powers and can use them to dictate (inter alia) the pace and quality of development. In Molinaro at §69, it was emphasised that sometimes the application of public law principles will cut across the private law relationship and, in those circumstances, the Court may hold that the public law complaint cannot be advanced because it would undermine the applicable private law principles.

69.  Indeed, it is not right that a claimant suing a public body for breach of contract, who is dissatisfied with the remedy afforded him by private law, should be able to invoke public law simply because of his dissatisfaction, understandable though it may be. If he could do so, it would place a party who contracts with a public body in an unjustifiably more privileged position than a party who contracts with anyone else, and correspondingly put the public body in an unjustifiably less favourable position than any other contracting party.

70.  In such circumstances – and subject to the question of bad faith or ulterior motive, to which I shall return below – JR2 is not (and, if necessary for consideration, JR1 is not) amenable to judicial review for a host of reasons:

(1)  It is not disputed by Ms Eu that the Application was made under the BCL. The BCL is a “private instrument”.

(2)  Any (conditional) approval of the Application by the Respondent is also made pursuant to the BCL: see Anderson Asphalt (CA) at §58.

(3)  To my mind, it is significant that the Applicants are seeking damages for breach of the Implied Term, which of course, is essentially based on the law of contract, rather than public law.

(4)  The function exercised by the Director in determining the Application and/or imposing the Conditions was in his capacity as land agent for the Government, which in turn acts as landlord.

(5)  In this regard, I reject the submission made by Ms Eu that the LandsD exercised a “statutory” function just because the Applicants also had to make two TPB Applications. Planning permission would be granted by the TPB, not the LandsD.

(6)  I also unhesitatingly reject the submission that the May Decision is subject to judicial review just because it “gives effect to the government’s planning policy” through the Application. As stated above, just because there is a “planning” element in the Director’s acts does not render them “public”.

(7)  I would also reject the submission that the LandsD has in fact exercised a statutory function under Cap 121. As a matter of fact, the Applicants have not applied for CoEs yet – that is why they accuse the Director of taking into account irrelevant considerations. So logically, the Respondent could not have exercised a statutory function under Cap 121.

(8)  The Applicants cannot say that the May Decision should be subject to judicial review because the Respondent considered matters which may be relevant to the grant of CoEs, but not the grant of the Application with reference to the LID-31. In Rank Profit, the appellant contended that the terms for modifying the lease for the relevant lot of land were extraneous, in the sense they could not be justified by “published” Government policy. But the Court of Appeal still held that the decision to offer such terms not to be amenable to judicial review.

(9)  Even if the Director did take into account matters relevant to the potential or eventual grant of CoEs under Cap 121 when imposing the Conditions, that still does not mean LandsD was exercising a function under or pursuant to Cap 121.

(10)  Most straightforwardly, private landlords are allowed to impose conditions on and dictate the use of their land as well, which demonstrates the May Decision may just be “essentially private, purely commercial” in nature.

(11)  All this aligns with the previous and authoritative observations made that most decisions made by the Director should not be subject to judicial review, as there is a need to promote certainty in this area of law.

71.  Ms Eu submitted that the Government “should not be able to hide behind the public law element”. But I think that begs the question as to whether there is a sufficiency of public law elements to render the decision amenable. If not, there is no hiding behind it.

72.  Mr Chan also referred me to a number of authorities which show that a private law action can be commenced against the Government for breach of the Implied Term under the BCL: see Dairy Farm Co Ltd v Secretary of Justice [2022] HKCA 1902 at §§1 and 24; Regal Shining Ltd v Secretary for Justice [2014] 5 HKLRD 832 at §§16-20, 24. There is no suggestion from Ms Eu that the Applicants could not have sued upon the Implied Term in a private law action (though I say nothing about the merits of any such claim). Thus, I accept Mr Chan’s submission that in these circumstances, allowing the Applicants’ judicial review would ‘cut across’ the contractual relationship which exists between the Applicants and the Government, or at least significantly make inroads into the Government’s contractual powers. It might unjustifiably improve the Applicants’ contractual position vis-à-vis public law.

73.  All that aside, I have been urged by Ms Eu to consider that there are elements in the May Decision which render it amenable to judicial review: (1) the delay and the unusual handling of the Application – of the kind which is the ‘bread-and-butter’ of the LandsD – which she said was the result of the adverse publicity surrounding the Report, and (2) Ms Lam’s position as the previous Assistant Director of Lands. As such, it was said the May Decision was made “with a view to public opinion”.

74.  However, I am not convinced that the authorities that I was taken to by Ms Eu demonstrate that a decision – even if made to avoid further public criticism – renders it subject to judicial review.

75.  Hong Kong and China Gas Co Ltd v The Director of Lands [1997] HKLRD 1291 concerned the Government’s refusal to extend a special purpose lease beyond 1997. The special purpose lease was originally granted in 1963 for the storage and supply of liquid petroleum gas to inhabitants in Tsuen Wan, as the gas mains system – at the time – did not serve them. By 1975, however, the gas mains system was extended to Tsuen Wan – there was no longer any need for liquid petroleum gas. Since 1979, the land itself had been used as an emergency and maintenance depot for the applicant’s Customer Maintenance Department and Distribution Department for the Tsuen Wan and Kwai Chung areas, which consisted of car-parking spaces and storage of tools, equipment, fittings, spare parts and cylinders of nitrogen. As such, the Regrant Unit of the Lands Department in January 1996 – pursuant to a policy statement made by the Government in 1987 that special purpose leases in the New Territories would usually be extended unless inter alia it was “no longer being used for the purpose for which it was originally granted” – refused to extend it. Keith J held that the refusal to extend the lease clearly fell within the terms of the 1987 policy statement, and the Director of Lands had regard to a “host of competing interests” – including the interests of the community in having an emergency and maintenance gas depot, and the current site being unavailable to other potential lessees at a significant premium in the event of the lease being extended.

76.  Wong Wai Hing Christopher v Director of Lands (HCAL 95/2010, 24 September 2010) concerned the villagers of Tsz Tin Tsuen in Tuen Mun Area 54. The applicants were previous owners of plots of land at Tsz Tin Tsuen, who held the relevant lots under a Block Crown Lease as agricultural land. However, structures had been built on the land for residential purposes. The Government tolerated those illegal structures for a long time. But in 2009, the Government decided to develop Tuen Mun Area 54 and so an order of resumption was made in April 2009. Handsome ex gratia payments were offered to the applicants, but they were considered by the applicants to be too low. Though the Government made offers for interim housing, the applicants considered this was not enough – indeed, they wanted to purchase another private property of “comparable character, size, and location in the market”. As such, the applicants refused to vacate. So the Director of Lands issued notices under section 6(1) of the Land (Miscellaneous Provisions) Ordinance Cap 28 (“LMPO”) to evict them. The applicants challenged the eviction. Lam J (as Lam PJ then was) held that the recovery of possession of land (as opposed to the decision to resume the land, which was not amenable) was amenable to judicial review for several reasons, including: (1) the Government was recovering possession unlike any “ordinary private landlord” – the Clearance Notice so issued was pursuant to the LMPO, in relation to Government land, (2) the Clearance Notice gave the Director a full-blown “remedy of self-help” – which in the private law context would be heavily restricted and of last resort, (3) the property so taken would become the Government’s property, and (4) there were criminal offences for persons who continued to occupy the land without reasonable excuse (§§48-59).

77.  The impugned decision in Hong Kong and China Gas Co Ltd was considered to be sufficiently “public” in nature because (1) the Director of Lands was acting as the protector of the public interest by balancing competing considerations (see Anderson Asphalt (CFI) at §51), and (2) the decision was made pursuant a 1987 policy statement that applied to public utility companies. The impugned decision in Wong Wai Hing Christopher was subject to review because the Director of Lands would be entitled to some extraordinary powers and remedies that would not be conferred on an ordinary landlord if he decided to evict his tenant. It is easy to see why both Keith J and Lam J (as he then was) found there to be the requisite “public” element. Neither of them stands for the proposition that a decision by the Director to avoid further public criticism would make it amenable to judicial review.

78.  R (Mullins) v Jockey Club Appeal Board (No. 1) [2005] EWHC 2197 concerned the Appeal Board’s decision to disqualify a racehorse after its urine sample was found to contain morphine, which breached Rule 53 of the Orders and Rules of Racing. It was not disputed the Rules of Racing were incorporated as part of the applicant’s contract with the Jockey Club. Stanley Burton J held (§§25-31) that the mere fact that inter alia the Rules of Racing include provisions which purport to apply to the world at large, or that its decision is important and has an impact on the livelihood of considerable number of people did not make the disqualification decision a “public” one.

79.  Mauritius v CT Power Ltd [2019] UKPC 27 at §§43-45 did not rule on what a “sufficient public element” was or could be. Further, although I was not referred to it by either party, I also take into account Kam Lan Koon v Secretary for Justice [1999] 3 HKC 591 at 600B-G. There, the Court of Appeal held that a decision not to extend a special purpose lease was amenable to judicial review because the decision was taken pursuant to a policy statement.

80.  I think the factors that Ms Eu relied on are actually best analysed as part of the Applicants’ “core allegation” in JR2 – namely, that the Director acted in bad faith or with an ulterior motive.

E.3  Bad faith / Ulterior Motive

81.  It is trite that decisions which are normally not amenable to judicial review may be if there is fraud, corruption, or bad faith: see Mercury Energy Ltd v Electricity Corp of New Zealand [1994] 1 WLR 521 at 529, where Lord Templeman – after rejecting the claim on the facts, finding that there was nothing to show that the defendant was acting irrationally or in bad faith or for improper or ulterior motives – said:

It does not seem likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services will ever be the subject of judicial review in the absence of fraud, corruption or bad faith.

…

The causes of action based on breach of statutory duty, abuse of a monopoly position and administrative impropriety are only relevant if the causes of action based on contract are rejected. If the causes of action based on contract are rejected, the other causes of action will only constitute attempts to obtain, by the declaration sought, specific performance of a non-existing contract. The exploitation and extension of remedies such as judicial review beyond their proper sphere should not be encouraged.

82.  Similarly, in Lee Shing Yue Construction Co Ltd v Director of Architectural Services [2001] 1 HKLRD 715 at 730H-731C, it was said:

In his recent decision in Ngo Kee Construction Co Ltd v Hong Kong Housing Authority (unrep., HCAL No 1927 of 2000, [2001] HKEC 16), Cheung J, in considering the same issue of amenability to judicial review, sort guidelines from a comprehensive review of the authorities. In so doing, he identified three instances in which the decisions of a public authority are not amenable to judicial review; namely, in instances where:

(1)  The decision is commercial in nature, such as the purchase of goods or services or a tendering process, so the public body is acting like a private body.

(2)  There is no statutory underpinning of the decision and the public body is left to decide on the substance and procedure of the decision-making process.

(3)  There is no allegation of fraud, corruption or bad faith.

As to the third instance identified by Cheung J, when there are allegations of fraud, corruption or bad faith made against a public authority, what is being suggested is that the decision of the authority is not a “purely commercial” one founded on bona fide commercial considerations but goes beyond that into matters indicating ulterior motives, abuse of power and the like.

83.  Ms Eu referred to R (Trafford) v Blackpool Borough Council [2014] PTSR 989, where in reaching conclusions in relation to amenability it was held, at §§54-55 and 59-60:

54.  Finally, I should note the distinction between an improper and an irrelevant purpose, identified in de Smith’s Judicial Review, 7^th ed (2013), paras 5-082 to 5-090 where the authors consider that an allegation of improper motive or improper purpose, with the connotation of knowing pursuit of an improper purpose, is more akin to an allegation of bad faith than to the other cases of illegality. …

55.  Having considered these authorities my conclusions are:

(1)  In a case such as the present, involving a challenge to a decision of a public body in relation to a contract, it is necessary to consider: (a) by reference to the contract in question, to the relevant statutory power, to the statutory framework (if relevant), and to all other relevant matters, whether or not, and if so to what extent, the defendant is exercising a public function in making the decision complained of; (b) whether, and if so to what extent, the grounds of challenge involve genuine and substantial public law challenges to the decision complained of, or whether, and if so to what extent, they are in reality private law challenges to decisions made under and by reference to the terms of the relevant contract.

(2)  In a case involving a challenge to a decision of a public body acting under a statutory power but in relation to a contract and in the absence of a substantial public function element, a claimant will none the less normally be entitled to raise genuine and substantial challenges based on fraud, corruption, bad faith, and improper motive (in the sense identified by de Smith of the knowing pursuit of an improper purpose).

(3)  The extent to which a claimant will be entitled to raise genuine and substantial public law challenges beyond those limited classes will depend on a careful analysis of all of the relevant circumstances so as to see whether or not there is a relevant and sufficient nexus between the decision in relation to the contract which is challenged and the grounds complained of.

…

59.  In that context, the claimant is contending that the decision is vitiated: (1) because it was taken for an improper or an unauthorised purpose, namely “that of penalising and victimising the claimant precisely and solely because some of her clients have sued the defendant”; (2) because it was irrational, in that if taken on financial grounds, it “does not achieve any reduction of such claims” and, as per the claimant’s skeleton argument, it is capricious, vindictive and seeks to punish or cause detriment to someone who has acted lawfully; (3) because it was procedurally unfair, in that where the defendant was considering deciding that any request for a new tenancy should be determined other than by reference to its published tenant selection criteria, and instead solely by reference to its assessment of the claimant’s alleged activities, the claimant was entitled to be afforded the opportunity to make representations before that decision was made.

60.  In my judgment all of these challenges are genuine and substantial. There is in my judgment a sufficient public law element or connection to render the decision amenable to judicial review on all such grounds. At the very least there is a sufficient public law element or connection to render the decision amenable to judicial review on the ground of abuse of power, whether categorised as improper or unauthorised power.

84.  It is likely that the exception to non-reviewability exists because public bodies (even when exercising their private functions) are expected to act with minimum standards of reasonableness. Alternatively, this might be conceptualised as the sufficient “public element” that would be necessary to render a non-reviewable decision reviewable.

85.  There is a rather sterile debate in the authorities as to whether an “abuse of power” – in the sense that an authority should not be permitted to act unfairly – is another reason to turn a non-reviewable decision into a reviewable one. However, I do not have to deal with this because I understand Ms Eu’s submission to have been that the “abuse of power” she refers to stems from LandsD’s “ulterior motive” or bad faith.

86.  As to what is bad faith, I would draw on the following principles:

(1)  “Bad faith” is not the test. It is the conclusion at the end of the analysis.

(2)  What an applicant must show is that the public body’s conduct (here, the delay and/or imposition of the Challenged Conditions) was so unreasonable or so perverse that it is akin to bad faith. Mere faulty administration, or even administration which fails to take into account certain factors which should be taken into account, is not sufficient to show bad faith: see Lee Shing Yue at 731H-I.

(3)  In that regard, a non-reviewable decision does not become reviewable even if the Government takes into account extraneous considerations (for example, that are not expressed in published Government policy), and is accused of behaving unreasonably: see Rank Profit at 180-181. That must be right – otherwise most non-reviewable decisions would be prima facie reviewable.

(4)  An ulterior motive may be indicative of bad faith, and the Court is allowed to examine those motives: see the passage quoted above from Trafford at §54; and Lee Shing Yue, 731A.

(5)  But again, an ulterior motive is not the same as merely failing to take into account relevant considerations. The former must carry some sort of moral impropriety in that the decision-maker either knowingly pursues a purpose that is different from that being openly pursued (i.e. a sham); knowledge that the decision was for extra-legal purposes; the motive behind the decision was based on personal factors such as financial gain, revenge or prejudice; or the decision involves a degree of personal malice, vindictiveness, or animosity against a particular group or individual: see, for example, de Smith’s Judicial Review (9^th ed) at 5-080.

(6)  It is thus no surprise that allegations of bad faith attract a very heavy standard of proof: see, for example, SCAS v Minister of Immigration [2002] FCAFC 397 at §19.

(7)  A heavy burden of proof is also commensurate with the general position that serious allegations require cogent evidence. To allow too readily some non-reviewable decisions to become reviewable would risk defeating the certainty that previous authorities have sought to promote.

87.  The heavy burden of proof also seems to me to be evident from the cases cited for the Applicants, where the Courts have considered making a finding of bad faith by a public body:

(1)  In Lee Shing Yue, the applicant construction company tendered for a three-year contract from the Architectural Services Department to carry out maintenance and repair works to public buildings. Its performance was subject to the supervision of the Department, in line with a monitoring system maintained by the Works Bureau. Unfortunately, the Department found the applicant to have been persistently guilty of delays in completing work through seven adverse reports, which ultimately led to the applicant being suspended from tendering for a period of 6 months. The reports suggested there were more than 1,000 work orders that were overdue or not completed on time. In response, the applicant complained the great majority of warning letters issued to it were unjustified because they were patently in error or dispatched without due care for the surrounding circumstances. Despite the applicant’s representations showing that the letters were not justified, the Department did not take steps to “amend or endorse their records” such that when the reports were issued, they included those that had been sent in error. If those “erroneous” letters were excluded, the “justified” warning letters represented an insignificant percentage of the total work done, such that there could be no material grounds for an adverse report at all. It was accepted by the Department that some letters might have been sent in error. But Hartmann J did not think the decision to suspend – which was the product of the monitoring system and the reports – constituted bad faith, even though he accepted it might have been Wednesbury unreasonable. He did not even think there was a “substantial” argument that the Department acted in bad faith. As such, he did not think the decision reviewable.

(2)  In Lee Ma Loi v Commissioner of Inland Revenue [1992] HKCA 311, HK$1.2m was confiscated from the applicant, a 21-year-old fisherman, by the police. The police then informed the Inland Revenue Department (“IRD”) of the incident. On the basis of that information, a senior assessor formed the view that the HK$1.2m was profit that could be subject to tax. At the same time, the IRD asked the police to hand over the money as a form of security, as the IRD thought that the applicant could quit Hong Kong without paying the tax. The Court of Appeal held that there had been an abuse of power given that the IRD was not bestowed with the power to require security, even though the Inland Revenue Ordinance Cap 112 at the time gave it wide powers of recovery. The relevant abuse was in acting ultra vires, and the Court of Appeal noted that the case appeared to arise out of an honest misunderstanding of the extent of the powers conferred. It may also be noted that the Court did not think the IRD was covertly cooperating with the police officers to “confiscate” the money – which might more readily be seen as an instance of bad faith.

(3)  The decision in R v Governor of Brixton Prison, ex parte Soblen [1963] 2 QB 243 can be dealt with swiftly. Essentially, an American citizen who was convicted in the United States for conspiring to obtain and deliver information to the Soviet Union escaped to the United Kingdom. The Home Secretary tried to deport him. The question was whether the deportation was lawful or whether it pursued an illegitimate purpose. The Court found that there was “no such evidence” that the deportation was for an improper purpose (i.e. that the Home Secretary sought to return the applicant just because the USA requested his return) and there was “reasonable ground” upon which he could consider that the applicant’s presence not to be conducive to the public good (i.e. the proper purpose).

(4)  In R v Secretary of State for Trade, ex parte Perestrello [1981] QB 19, the first applicant was the controller and managing director of the second applicant company. The first applicant had previously been a chairman of a similar company which had been wound up as a result of investigations by inspectors who had been authorised under section 109 of the Companies Act 1967. Some of those officers were re-instructed to investigate the second applicant company. The first applicant was asked to produce all accounting records and files of correspondences relating to the financial position of the second applicant company – which was in very wide terms. But this was not enough to show the inspection was biased or capricious in any way – it just showed that care may not have been exercised “in the drawing up of the notice” (36G).

88.  As such, the authorities cited by the Applicants do not really assist their case. None of them actually held the relevant public body to have acted on an improper motive / bad faith. As stated, rather they demonstrate the heavy burden of proof the Applicants bear in the present case.

89.  I can turn to whether that burden has been met.

E.4  Consideration on the Facts

90.  To support the allegation of bad faith in respect of JR2, Ms Eu relies on matters that primarily concern JR1, and the chronology leading to it. Although I have ruled JR1 to be academic, I accept the background leading to JR1 may be relevant to the question of whether the May Decision and the Challenged Conditions were reached and imposed respectively in bad faith. The logic is that there might have been a pattern of conduct whereby the LandsD repeatedly acted with animosity towards the Applicants, and the imposition of the Challenged Conditions might have been part of and the latest episode in that pattern of conduct.

91.  Ms Eu rightly accepted that there is a difference between (1) mere failure to adhere to standard practice, taking into account irrelevant considerations, negligence, ignorance or incompetence, and (2) abuse of power and bad faith. The focus in this challenge must be on the latter.

92.  It is perhaps apt to start from motive. Put at or near its highest, Ms Eu suggested that the overall circumstances identified the only explanation was that the LandsD wanted to delay the Application as long as possible. The delay and the later imposition of the Challenged Conditions were, she submitted, clearly deliberate. Ms Eu pointed to (1) the involvement of many senior and experienced land officers who processed the Application, (2) the long catalogue of deviations from standard practice, (3) the gross delay, not least when compared to the target time of eight months for similar applications, and (4) inconsistent allegations put forward in the Director’s evidence. She submitted that the clear inference to be drawn is that there was an abuse of power and bad faith on the part of the LandsD to delay the approval until after Ms Lam’s retirement, by reason of the fear of political outcry and to penalise Ms Lam for causing trouble and inconvenience.

93.  I do not think the underlying basis of the Applicants’ expressed concerns is inherently unlikely. The Report would have attracted some political or public outcry. If the news broke that the Applicants could build NTEHs, and thus could potentially reap the benefits of leasing the NTEHs for profit, then there might be public criticism that the Applicants had taken advantage of insider information as described in the Report, even though Ms Lam has been cleared of all wrongdoing. Any public outcry would be at least a distraction. Rightly or wrongly, the public might lose trust in the Government as a result. Any Government would wish to avoid that. Such public outcry could be avoided if ultimately the Applicants could never rebuild and thus lease the NTEHs on the purchased Land as a matter of practical reality – for example, by delaying the approval of the Application, or by imposing unrealistic and impossible Conditions. On the other hand, it is also fair to point out that the less any public outcry, the less plausible allegations of bad faith would be.

94.  Anyway, I consider it not unlikely that the Director had public perception in mind when processing the Application. That is essentially admitted in the evidence, which accepts that that due to “media attention”, a Deputy Director/Specialist at senior directorate level was assigned to determine the Application – even though it was said to be for the sake of ensuring “procedures would be strictly followed” and “no mistakes would be committed”. I note that Mr Tang, in an affirmation made after JR1 and JR2 were ordered to be heard together, stated that he was “invited” to withdraw the Application so to “avoid any embarrassment”. I do not need to resolve this matter, and in any event I do not think this would change the outcome of the present case. I also note that the Applicants’ written submissions describe this as the “escalation of the approving authority”. I do not think whether this is an “escalation” or not resolves the question of whether the LandsD acted in bad faith.

95.  As said, it is not difficult to think that the Director would have been cognizant of the political implications or public perception if the Application was seen to be approved, or approved too readily. But I also have to be satisfied that the steps taken after the Report was published – most importantly, steps of making requisitions and the imposition of the Challenged Conditions – were to further the alleged improper objectives.

96.  As stated, Ms Eu relied on the significant delay in approving the Application. Obviously, the length and circumstances of the delay are capable of providing real ‘colour’ against which the bad faith allegations can be considered. Though I do not think that the evidence points only one-way, there is considerable force in the reliance on delay.

97.  Various provisions of LID-31 – not least Appendix XIX – make clear that approval of similar applications do not normally take long. Section 3.1 states that the “way of processing the application by way of Approval Letter … should be determined at an early stage before the case is proceeded further”. Section 2.7 envisages that the applicant should be notified “within 5.5 months from the date of start processing”. It may also be significant that after the Application was processed, section 3.7 of the LID-31 was revised to provide that “Time frame for processing a case by way of Approval Letter should be within 8 months”. In that light, 8 years is a highly unusual amount of time for the Application to have been approved.

98.  Even if this is a “non-straightforward case” as asserted by the Director, only 18 out of 214 NTEH rebuilding applications from 2016 to 2020 have taken 8 years or more. The Director draws a distinction between “straightforward” cases – which can be completed within 8 months as per Appendix XIX of LID-31, and “non-straightforward cases”. Straightforward cases are those that apparently have (i) the title in order, (ii) land lease with an unambiguous house entitlement, (iii) documents submitted by the applicant are in order (such as house proposal), (iv) no objection from government departments and the local villagers; (v) planning approval is not required, and (vi) the application site does not affect any public project.

99.  This distinction is not found in LID-31. But the published performance pledge of 8 months for approval of straightforward rebuilding applications from the date of receipt describes non-straightforward cases as including those associated with land title or boundary problems or requirements imposed by other regulatory authorities, where the processing time will exceed the eight months depending on the nature and complexity of the problematic issues been encountered.

100.  Even if it was only on 5 June 2017 that the Applicants submitted the 5^th Housing Proposal (which finally did not attract any adverse comment) – which would have made the Application more straightforward – it still took the Application 3.5 years to be approved. In any event, there had been a gap of another 9 months between 20 May 2020 (when the YLDLOC had recommended the approval of the Application) and the eventual approval of the Application on 26 February 2021. The sole explanation for this delay was that the Director sought “legal advice” on various legal matters from the Department of Justice and the Land Registrar. There is room for some scepticism about what the purpose of such legal advice was, given the exhaustive Requisitions made by the LandsD and other government departments from 2014 to 2020.

101.  I also note that the LandsD delayed in relaying certain comments by different government departments without good reason. For example, as to Requisition 9, even though the GEO had communicated that a GAR was necessary on 3 September 2019, the LandsD only requested a GAR from the Applicants on 25 October 2019, almost 2 months later. The LandsD also delayed in telling the Applicants that the 4^th Housing Proposal was thought to be unacceptable by the SMO so to “wait” for the PlanD’s comments. Waiting for the PlanD’s comments was unnecessary – if the SMO found it objectionable, it was unlikely that the PlanD would have found it acceptable. Nor would the LandsD itself have (according to its conduct in this case) accepted any risk that the Application was objectionable in any way. Thus, the proper response would have been to inform the Applicants straight away, such that they could submit the 5^th Housing Proposal as soon as possible.

102.  I also accept that the LandsD did delay matters unnecessarily by allowing different departments to dictate the pace of the approval of the Application. That is objectionable in itself. In any event, Appendix VI of LID-31 – which is a standard “circulation memo” to other government departments which asks for comments on a NTEH rebuilding application – shows that the LandsD usually adopts a “cut-off point”: if the LandsD does not hear back in 4 weeks, the department whose opinion is sought will be deemed to have “no objection”.

103.  I also consider the sudden approval of the Application a mere month after JR1 had been commenced to be a bit too convenient.

104.  On the other hand, I accept that the LandsD had sent multiple chasers reminding other government departments for Requisitions 4, 5, and 8. This would militate against the accusation of bad faith. I also accept that the LandsD had set various deadlines for the relevant government departments to adhere to.

105.  I accept the Director’s submission that part of the delay can be attributed to the Applicants’ delay in submitting the requested documents, most prominently, the 4^th Housing Proposal.

106.  I also accept that the LandsD never adopted what the Applicants refers to as the Missing Lease Approach at any point of the Application. In fact, in the RNTPC Paper, the LandsD clearly stated that the relevant rent roll records show that 0.04 acre of Lot 1504 and 0.02 acre of Lot 1505 were of “house” status. I also do not find support – either in Part B of LID-31 or otherwise – for the idea that the LandsD would “normally” allow NTEHs to be erected on any part of the Land if the documents permitting a change from “agricultural land” to “house” could not be found. So any delay there was not caused by an inexplicable volte-face.

107.  Ms Eu contends that the Requisitions were all irrelevant, such that it caused unnecessary delay. The reason why the Requisitions are irrelevant is because they were not prescribed considerations under LID-31, as a matter of proper construction, and so (it is argued) the reason why these irrelevant Requisitions were raised was because the Director was motivated by bad faith.

108.  I consider this submission to be fraught with difficulty, for various reasons:

(1)  First, just because irrelevant considerations may have been taken into account when the Director raised the Requisitions does not automatically indicate “bad faith”, even if it departs from “published” Government policy.

(2)  Second, even if the Requisitions were irrelevant and/or unnecessary, that does not mean the Director took into account irrelevant considerations when imposing the Challenged Conditions.

(3)  Third, it is established that absent a code of compulsory considerations, prescriptions, or proscriptions, it is for the authority invested with a statutory discretion to consider what matters to take into account, and their weight, subject only to interference on Wednesbury irrationality grounds.

(4)  I accept Mr Chan’s submission that, a fortiori, the latitude due to the Director here would be the same, if not wider, given that the discretionary power to approve the Application or not is not controlled or governed by statute. So unless the Requisitions were Wednesbury unreasonable, I would not conclude them to be irrelevant, let alone indicative of bad faith.

(5)  Fourth, political considerations are often irrelevant: see my decision in Loh Ming Yin v Hong Kong Examinations and Assessment Authority [2020] HKCFI 1135 at §248. However, if the Director was entitled to raise the Requisitions as part of approving the Application, irrespective of whether they were motivated by political matters or not, they can hardly then be said to be irrelevant.

109.  Bearing those principles in mind, I now turn to Part A of LID-31 to examine whether – as Ms Eu suggests – that technical or other considerations should not have been taken into account. For the avoidance of doubt, I accept LID-31 §2.6 – at the time the Application was processed – did not refer to “geotechnical problems”.

(1)  Section 1 is titled “Immediate Actions upon Receipt of an Application”.

(2)  Section 1.3 provides that, upon receiving plans from the Geospatial Information Hub (GIH) and ownership records from the Integrated Registration Information System (IRIS), the LandsD will check (i) whether the contents of the application are completed, (ii) whether necessary documents are submitted, (iii) whether ownership is in order, (iv) whether the application form is signed by all the owners, if the land is co-owned, (v) whether the proposed house would be affected by any resumption / clearance limit; (vi) whether the proposed rebuilding would be affected by any archaeological or historical interest, and (vii) the zoning of the proposed site.

(3)  According to section 1.4, if the application does not meet the basic criteria as listed above, then the application will be rejected.

(4)  Section 2 is titled “Further processing”.

(5)  Paragraph 2.1 states that a site inspection will be carried out for the preparation of a “detailed site plan and identification of any site constraints”. A Ground Features Report will then be completed.

(6)  Section 2.2 states that the “rebuilding proposal will be circulated to relevant departments (including DPO, DO, DSD, etc.) and DSO for comments within 4 weeks”.

(7)  Section 2.3 provides that a letter to the applicant will be sent to the applicant for an interview, if necessary.

(8)  Section 2.4 provides inter alia that “Unless there is land boundary problem or case warrants, the applicant should not be requested to provide land survey reports at the initial processing stage”.

(9)  Section 2.5 provides that the LandsD will arrange for the “posting of notice giving 14 days for local villagers, who will be affected by the proposed rebuilding, to offer comments”. The Notes to paragraph 2.5 also state that “As the registered owner of the house lot usually has the contractual right to rebuild the house, the application would generally be approved if the rebuilding proposal is within the lot boundary and complies with the lease conditions as well as the requirements imposed by other regulatory departments”.

(10)  Section 2.6 states that “After assessing the nature of unresolved problems such as boundary dispute, title defect, area discrepancy, missing lease, absentee owner, drainage… unidentified location of application lot(s), etc., the cases will be submitted to SLE (Appendix XIII) for rejection”.

(11)  Appendix XIII provides that the application can be rejected for ‘other’ reasons beyond those stated in section 2.6.

(12)  Section 3 is titled “Submission for Approval”.

(13)  Section 3.5 relevantly provides that “Upon issue of Approval Letter, a letter (Appendix XVII(A)) should also be sent reminding the applicant(s) to apply for Certificates of Exemption prior to commencement of any building works of the village house and the related site formation and drainage works unless the works are approved by Building Authority under the terms of the Buildings Ordinance Cap 123.

(14)  Section 5 is titled “Cases with Problem(s) Resolved by the Applicant can be Approved by CLE”.

(15)  Sections 5.1 to 5.7 provide for the different ways in which an application can be approved, including that: (1) the site under application is subject to “S. 16 planning permission and valid permission has been obtained”; (2) “the site has geotechnical constraints but there are no other unresolved issues. Relevant conditions will be imposed in the Approval Letter / Offer Letter requiring the applicant to submit geotechnical assessment report and/or structural safety report before applying for Certificates of Exemption”; (3) the applicant is required to submit a drainage proposal and it has been accepted by DSD; (4) the subject lot has lot boundary dispute/problem which is settled by parties concerned; (5) the subject lot has land title defect/problem and it has been rectified and accepted by LACO; (6) the subject lot is subject to area discrepancy problem and it has been rectified and accepted by SMO; or (7) “all objection has been withdrawn by the objector(s)”.

(16)  Section 9 titled “Objections and Appeals”.

(17)  Section 9.4 also states that “Objection pertaining to ‘fung shui’ is a sensitive issue. The LE shall consult District Office / Rural Committee / IIR in this regard before making recommendation to DLOC”. The same section makes reference to Appendix XXI in handling objections, which provides as follows: if the house is not close to a fung shui element, or the proposed house has the “same dimension” as the existing structure, then the objection can be overruled. If not, the matter will be sent to the DLOC (i.e. the YLDLOC).

110.  I think it is also relevant to consider other appendices to the LID-31:

(1)  Condition 10 of the Appendix VIII, which provides for the standard letter approving an application for rebuilding NTEHs (“Standard Letter”) states that “Any septic tank to be constructed in Government land will be permitted only at _____ side of the lot(s).” This is marked with an asterisk (delete as appropriate).

(2)  Further, as the Applicants admit, when filling out the Application, they have to roughly describe the “location of septic tank” in “Part C – Proposal for the House to be Rebuilt”.

(3)  Appendix XII – which is the Notice given to persons who may be affected by any rebuilding application – also indicates the location of the septic tank. This must be so persons affected can comment on the positioning of the septic tank.

(4)  Paragraph 2 of Appendix J states that an application may not be processed if the “applicant fails to address / resolve some relevant matters including but not limited to the appropriate matters such as the submission of a geotechnical report”.

111.  I think it is also necessary to take into account Section J-5 of the Lands Administration Office Instruction (“LIJ-5”), which governs the grant of CoEs under Cap 121.

(1)  Relevantly, section 5D indicates that CoEs should be issued within 4 weeks from the date of receiving the completed forms.

(2)  It also indicates that if there are “specific requirements for drainage and slope” before CoEs in respect of drainage works and site formation works are to be obtained, the DSD and CEDD might have to be consulted.

(3)  Section 5D also indicates that the Director of Lands may issue CoEs subject to conditions relating to safety and health or such other reasonable conditions under section 9 of Cap 121.

112.  In such circumstances, it is difficult to see how “technical and other considerations” can be said to be “irrelevant”.

(1)  The positioning of the septic tank is plainly a relevant consideration (see inter alia Condition 10 of the Standard Letter). The Applicants’ complaint is that they should not have to describe the positioning with exactitude. But that is far from saying that the positioning of the septic tank is categorically irrelevant.

(2)  Public objections and fung shui are again clearly relevant by reason of sections 9 and specifically 9.4 above.

(3)  As to geotechnical issues, it is not enough that LID-31 §2.6 might have removed reference to “geotechnical problems”. Inter alia, section 5.2 of LID-31 provides that the applicant can resolve problems associated with “geotechnical constraints” is to submit a geotechnical assessment report – like the revised GAR – “before” CoEs are applied for. A fortiori, geotechnical matters are relevant to the approval of the Application.

(4)  As to the Revised NTHS and site formation concerns, I cannot accept that they are completely irrelevant. If an application may be refused for geotechnical concerns – and the Applicants accept that NTHSs and site formation level and spot level diagrams are “relevant” to resolving geotechnical concerns – then it would logically follow that the Requisitions 6 to 8 for natural terrain hazard studies and spot level diagrams were not irrelevant. Certainly they cannot be said to be in bad faith.

(5)  I am not entirely sure that Ms Eu’s submission that there is “no provision under L.I.D-31 requiring consideration of site formation level and spot level diagrams” is correct. Certainly, the LandsD is not directed to take them into account. But that does not mean they are irrelevant considerations.

(6)  I would also think section 3.5 of LID-31 clearly envisages that the LandsD would know about the particulars of site formation works that an applicant had to undertake before he or she applied for CoEs. This further suggests “site formation” concerns are relevant considerations.

(7)  Ms Eu contended that – at the very least – the LandsD should only request any NTHS or consider site formation matters if and when the Applicants applied for the grant of CoEs. There is some force in this submission. I take into account inter alia the LandsD’s memo dated 9 October 2017, which asked whether a CoE could be issued in light of the Ground Features Report. But I am not convinced that the LandsD were not entitled to take into account site formation or geotechnical concerns. It is perfectly plausible that these concerns can be addressed before an application is approved, and before a CoE is granted – particularly if a CoE is expected to be granted within 4 weeks (see LIJ-5, section 5D).

(8)  Section 5D of LIJ-5 states that if there are specific requirements in respect of inter alia site formation works, then the DSD or CEDD might have to be further consulted. This seems to envisage that there are preliminary considerations concerning site formation works which can be taken into account at an earlier stage.

113.  I am thus not convinced that the LandsD took into account irrelevant considerations when raising its Requisitions.

114.  What I really think Ms Eu was saying was that the Requisitions were arbitrary, as they were either uncommon, or had never asked before. Indeed, according to a letter dated 5 December 2019 from the LandsD, no previous applicant wishing to rebuild NTEHs had been required to submit an NTHS. Further, only about 80 previous applicants had been required to provide a proposed site formation level. Ms Eu also pointed to how the LandsD proactively asked the GEO as to whether a GAR was necessary on 3 September 2019. Plainly – she contended – the LandsD was conjuring matters out of thin air to further delay the approval of the Application.

115.  I see the force in Ms Eu’s first point. But, I do not think I can read too much into it. Ultimately, it was the GEO which ultimately recommended the need for a NTHS. It was for an irrefutable reason, namely that the small house was at the “toe of a steep natural terrain overlooking the captioned lot”. I do not think Ms Eu’s second point has the same force. Ultimately, if the LandsD was entitled to have regard to geotechnical and site formation concerns – as I have found – then it was also entitled to ask or confirm from the GEO that a GAR might be necessary.

116.  That said, I do think it is rather strange that the LandsD retracted Requisition 8 after the Applicants flatly refused to entertain it. Nevertheless, I do not think I can infer bad faith from this factor alone.

117.  I turn now to the Challenged Conditions. Ms Eu contended the Challenged Conditions demonstrate bad faith in two ways: (1) Conditions 2, 3, 13 to 22, and 24 to 25 are not found in the Standard Letter, and thus there was a failure to adhere to “standard practice”, (2) most of them were imposed without good reason whatsoever, or they take into account “irrelevant considerations”.

118.  I do not consider the first point to be a good one. I accept Mr Chan’s submission that LID-31 and the Standard Letter provide internal guidelines and templates for adaptation where appropriate. That is why the Standard Letter says that an officer can “delete as appropriate” certain conditions. Thus one cannot infer a standard “practice” by the Director. I certainly cannot infer bad faith from a failure to follow a template.

119.  In any event, I accept there are at least rational reasons for the Challenged Conditions to have been imposed.

(1)  The Condition 1 specifications were adopted from the 5^th House Proposal as submitted by Mr Tang. In any event, Condition 1 only stipulates a maximum roof-over area. Any figure less than this would comply with Condition 1. I accept Mr Chan’s submission that the idea that this would readily lead to breach is an exaggeration.

(2)  Conditions 2, 5-6, 7, to 8, 14, 15, 27, 31 and 33 simply regurgitate or are adopted from conditions within the Standard Letter. Conditions 5, 6, 16, and 18 were also conditions for approval under the 2^nd TPB Application.

(3)  Condition 24 was imposed because the clearance distance between the proposed balconies of one of the NTEHs and the adjoining lot is only 0.05m.

(4)  I find Condition 13 to be reasonable as the Director was entitled to take into account “site formation” issues when approving the Application.

(5)  With regard to Conditions 19 to 21, I also accept that the Applicants indicated they would proceed under Cap 121, instead of Cap 123.

(6)  Condition 25 was essentially imposed to strike a balance between the public concerns over the Land being used to build columbaria. In any event, I accept that – with the enactment of the Private Columbaria Ordinance Cap 630 on 30 June 2017 – the Applicants must in any event obtain a specified instrument, namely, a licence, an exemption or a temporary suspension of liability before they could operate a private columbarium on the Land.

(7)  The object of Condition 22 is a water sump – which was discovered after a site inspection in May 2020 – and no more.

120.  I have considerable sympathy for the Applicants. It is easy to see why the Applicants might reach the subjective conclusion that the Application was treated differently by the LandsD because of the political outcry following the Report and/or the way in which Ms Lam defended herself during the external and internal investigations which cleared her name.

121.  Indeed, it may not be unfair to think that the entire Application has been handled in a poor manner – in particular, through the delay in approving the Application, which must have been deeply frustrating for the Applicants. I also understand Mr Tang’s instinct to complain to the Ombudsman about possible maladministration.

122.  On the other hand, Ms Lam was herself fair enough in her evidence to express understanding that the Government had to be careful not to give any impression that she might receive favourable treatment because of her posting with the LandsD – though she also emphasised that she should not be subject to prejudicial treatment either. I agree with her, on both limbs. I think the need to take appropriate care so as at least to lessen the scope for criticism of favourable treatment explains some of the delay. It is also not hard to think that there may have been some element of reluctance among some individual officers to reach a decision which might attract more public comment, possibly public criticisms. That may perhaps have led to greater requisitions and perhaps to some of the conditions attached to the approval. But I do not think that translates into a deliberate decision not to make a decision at all, or to delay pending some long future date (whether tied to Ms Lam’s retirement or otherwise), or to penalise Ms Lam for the publicity previously generated.

123.  Indeed, there is also an inherent unlikelihood in the underlying assumption that would be necessary for the bad faith or ulterior motive to be set out. That is because any such motive as is to be attributed to the LandsD would actually require having been shared across a fair number of people (even within the LandsD, and even ignoring the involvement of other government bureaux or departments). To be established, the allegation in effect would require the bad faith or ulterior motive to have been shared, intentionally, and over a not insignificant period of time, by a number of people – including the “many senior and experienced land officers” to which the Applicants themselves make reference as having been involved in the various dealings with the Application. Quite simply, the more people involved and the longer the period over which activities took place, the less likely it is that they would have acted in bad faith and in concert with the necessary degree of homogeneity. Those matters seem to me to point against a deliberate and ill-motivated departure from normal dealings (even if it might be thought that there was some level of hesitation, incompetence or negligence on view). They also point against a deliberate and ill-motivated common intention to penalise Ms Lam.

124.  In conclusion after considering matters overall on balance – even when considering matters cumulatively and in the round, and not on a single point-by-point basis – I do not think the case of “bad faith / ulterior motive” on the part of the Director in imposing the Challenged Conditions has been made out.

125.  I thus hold that the May Decision is not amenable to judicial review. Had I not found JR1 to be academic, I would have found that the challenge in that was also not amenable to judicial review for similar reasons.

F.  Remaining Analysis on the Grounds

126.  Since I have found that the May Decision is not amenable to judicial review, I propose to deal with the substantive merits more economically, particularly when there is substantial overlap between my analysis on amenability and the substantive merits. Further, once the element of bad faith motive is removed, that necessarily weakens the individual grounds, which are significantly tied to that motivation.

127.  Broadly, I accept the submission made by Mr Chan that if there is no sustainable case on abuse or bad faith or ulterior motive on the facts, then the core of the substantive case collapses. Without acceptance of the “core allegation” of bad faith or ulterior motive, there is little left in the piecemeal complaints:

(1)  Grounds 1 to 3 have been analysed above. I would have held that they fail.

(2)  Grounds 4 and 5 essentially concern the reasonableness and fairness of the Challenged Conditions. Again, I do not think these grounds succeed for reasons stated above. As to Ground 5 in particular, I accept Mr Chan’s submission that there is nothing in the contention that Conditions 2 and 25 run with the Land – they are to run with the proposed NTEHs. There is no variation of the BCL as such.

(3)  Ground 6 similarly fails. Since I have concluded that the Respondent did not seek to “vary” the BCL, the Respondent could not be accused of failing to honour a legitimate expectation that the Applicants would be dealt with in accordance with the terms of the BCL. As to the second legitimate expectation, I do not accept that there was a “standard practice” – each application would have to be dealt with according to inter alia the unique features of the relevant Land.

(4)  As to Ground 7, I accept Mr Chan’s submission that Conditions 6, 13, 18, 31 were most likely imposed given that the Applicants had always indicated that they would opt for Cap 121, instead of Cap 123. In any event, for the avoidance of doubt, it must be possible for the Applicants to avail themselves of the Cap 123 route if they so wish – that much is clear.

(5)  Ground 8 is academic upon clarification from the LandsD that the structure to be removed is the water sump.

(6)  Ground 9 cannot succeed in light of my finding in Section E2 above.

G.  Result

128.  Albeit not without some hesitation, I dismiss the Applicants’ applications for judicial review.

129.  I currently see no reason why costs should not follow the event, so that the Applicants pay the Director’s costs with certificate for two Counsel. I will make this order on a nisi basis, which will become absolute after 14 days unless a prior application is made to vary this order. Any variation decision will be made on paper.