陳達聲 v. 地政署

HCAL 2122/2023

[2023] HKCFI 3146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2122 OF 2023

________________________

________________

_________________

D E C I S I O N

_________________

A.  Introduction

1.  By a Form 86 dated 27 November 2023, the Applicant seeks leave to apply for judicial review, naming the Lands Department as the proposed respondent.

2.  Though not entirely clear from the way in which the Form 86 is completed, the application apparently seeks leave to challenge a decision of the Lands Department (Sai Kung District Lands Office) setting a deadline for removal from the government land concerned of the vessel that the Applicant has been using as a means of transport and for emergency.

3.  In passing, I note that the Applicant’s address given on his Form 86 is in a landlocked public housing estate in central Kowloon, and it is not immediately clear why he would need a vessel – though it is, of course, apparently kept elsewhere on government land which he says is accessible only by boat.

4.  In any event, it seems that the Applicant wishes to be given an “exemption”, on the basis that a similar situation exists or is prevalent everywhere in Hong Kong with no action taken, and that it is an unfair policy against the public.

5.  Having considered the materials filed by the Applicant, I am of the view that this application can be dealt with on the papers.

6.  This is my Decision.

B.  No Merit in Application

7.  Order 53 rule 3(2) mandatorily requires an application for leave to apply for judicial review to be in the correct form, containing – amongst other things – a statement of the grounds upon which the relief is sought.

8.  In my view, the Form 86 filed by the Applicant does not comply with that requirement. A general assertion of unfairness is not sufficient properly to identify a proposed public law ground of review.

9.  Further, inherent in the application seems to be the acceptance that there is a proper and lawful basis for the Lands Department to have set a deadline to remove the vessel from government land, but the Applicant wishes to be ‘exempt’ from complying with that deadline simply because other persons have also improperly or unlawfully occupied government land without government action against them.

10.  That is not a proper basis upon which the Court exercising its supervisory jurisdiction in judicial review will intervene, absent any clear explanation as to why it might do so. There is no apparent irrationality or Wednesbury unreasonableness, or any other public law ground revealed.

11.  In short, the Applicant has failed to identify any reasonably arguable grounds of intended review with any reasonable prospect of success.

C.  Disposal

12.  In the circumstances, the Applicant’s application for leave to apply for judicial review is dismissed, with no order as to costs.