CHAN KA LAM v. THE COUNTRY AND MARINE PARKS AUTHORITY

HCAL 54/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 54 OF 2014

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J U D G M E N T

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A.   INTRODUCTION

1.  In around December 2013, the Country and Marine Parks Authority (“the Authority”) decided not to recommend designating the enclaves of Hoi Ha, Pak Lap, To Kwa Peng, Pak Tam Au, So Lo Pun and Tin Fu Tsai as country parks by incorporating them respectively into the surrounding existing country parks.[1]  For convenience, these six enclaves will be referred to collectively as “the 6 Enclaves” in this judgment.

2.  In this judicial review, the applicant effectively challenges the Authority’s above non-recommendation decision by challenging:

(1)   The Authority’s decision (“Decision 1”) not to seek and consider the advice of the Country and Marine Parks Board (“the Board”) before making the above decision not to recommend.

(2)   The Authority’s decision (“Decision 2”) to adopt or rely on the respective assessments of the Director of Agriculture, Fisheries and Conservation Department (“the Director”) of the 6 Enclaves as unsuitable for designation as parts of the surrounding country parks.

3.  Briefly, the applicant in this judicial review says:

(1)   Decision 1 is unlawful since the Authority is legally obliged, but he had failed, to seek the advice of the Board under the relevant provision of the Country Parks Ordinance (Cap 208) (“CPO”) in relation to his non-recommendation decision concerning the 6 Enclaves.

(2)   Decision 2 is unlawful as the assessments were prepared (a) not in accordance with the statutory purpose and the Authority’s duties under the CPO; (b) in breach of the relevant policy on designating areas, including the enclaves, as country parks and/or the applicant’s legitimate expectation that the 6 Enclaves would be assessed in accordance with the relevant policy; and (c) Wednesbury unreasonable.

4.  The applicant therefore asks for the reliefs of quashing Decisions 1 and 2, and an order of mandamus requiring the Authority to put before the Board for its consideration and advice an assessment of the suitability of incorporating each of the 6 Enclave, and to consider the Board’s advice in formulating his recommendations to the Chief Executive (“CE”) for designation of areas as country parks.

5.  Before I deal with the grounds of judicial review in detail, it is necessary to set out briefly the background leading to these decisions to put things in proper context.

B.   BACKGROUND

B1.   The Authority and the Board under the CPO

6.  Relevant for the present purposes, the CPO is enacted to provide for the designation, control and management of country parks.[2]

7.  Under the CPO:

(1)   The Authority is vested with the control and management of country parks, and the Director is designated as the Authority (section 3).  In other words, the Director is also the Authority.

(2)   It is the duty of the Authority to make recommendations to the CE for the designation of areas as country parks, to develop and manage country parks, to promote the use of the country parks for recreation and tourism purposes, and to protect their vegetation and wild life (section 4).

(3)   Upon the recommendation by the Authority and his submission of draft plan, and after the gazetting of the draft plan for public views, the CE in Council (“CEIC”) may approve the draft plan to formally designate an area as country park (sections 8 - 13).

(4)   The Board is established and, among others, acts as a consultative body to advise the Authority upon any matter referred to it by the Authority, and shall consider and advise the Authority on the policy and programmes prepared by the Authority in respect of country parks, including proposed country parks (section 5(1)(a) and (b)).

(5)   The Board shall consist of the Authority and not less than 10 other members (all to be appointed by the CE), of whom not less than five shall be public officers (section 5(2)).

B2.   Enclaves and the designation of country parks[3]

8.  Many of Hong Kong’s country parks were designated in the 1970s.  Over the years, the number of country parks has been increased to 24 and they now cover some 40% of Hong Kong’s land areas.

9.  Historically, the suitability of a site for designation as a country park follows established principles and criteria, which include among other things, landscape quality, recreational potential, conservation value, size, land status, and management effectiveness of the site.  Details of the then principles and criteria were set out in the paper endorsed by the Planning and Management Committee, Country Parks Board in 1989.  Under these formerly established criteria, considerations need to be given to the land status of the site proposed to be designated as a country park.

10.  It was the then prevailing policy that Government land is to be preferred when a country park is designated, as there may be traditional rights associated with private lots held by indigenous villagers within village environs and hence may create country park management problems.  Landowners may even object to designating these areas as country parks.  As a result, private land together with some surrounding government land is usually excluded from country park boundaries and it forms the country park enclave.  There are a total of 77 country park enclaves with a total area of 2,076 hectares.  Notwithstanding this, there are some pockets of private land within designated country park areas because no objection had been filed by their owners during the designation process.  About 460 ha of private land have been included in various country parks.

11.  In June 2010, unauthorised excavation works were detected on both private land and government land within the country park enclave of Sai Wan (“the Sai Wan Incident”).  This triggered significant public concerns on the protection of country park enclaves in Hong Kong.  At that time, 54 of the 77 country park enclaves had not been covered by Outline Zoning Plans (“OZPs”) under the Town Planning Ordinance (Cap 131) (“TPO”), meaning that developments on private land within the enclaves were not subject to any restrictions apart from any conditions in the land lease, which might in turn affect the natural environment and the country park contiguous to the enclave.

12.  As an urgent measure to protect Sai Wan from further development activities, on 26 July 2010, Sai Wan was designated as a Development Permission Area (“DPA”) under the TPO, which prohibited new development activities there unless with the approval of the Town Planning Board (“TPB”) or permitted as specified in the DPA plan.

13.  The unauthorised excavation works at Sai Wan were also discussed at the joint meeting of the Legislative Council (“LegCo”) Panel on Development and Panel on Environmental Affairs on 28 July 2010.  The Government made clear at that meeting that, notwithstanding the designation of Sai Wan as a DPA, it would “critically assess” as to the most appropriate measure to protect the natural environment of Sai Wan.

14.  In light of the Sai Wan Incident, the then CE in the 2010 Policy Address pledged to either include the enclaves into country parks, or determine their proper uses through statutory planning to meet conservation and social development needs as soon as possible (“the 2010 Policy”).[4]

15.  Pursuant to the 2010 Policy and in light of the Sai Wan Incident and the public’s increased awareness and demands for conservation of the nature landscape quality of the country parks and their surrounding areas, as well as expectation of the Government to safeguard against any development that would undermine public enjoyment of natural environment, the Authority (together with the Agriculture, Fisheries and Conservation Department (“AFCD”)) conducted a comprehensive review of the then existing principles and criteria for designating new country parks or extending existing country parks.

16.  In May 2011, they submitted a working paper (“the 2011 Working Paper”) to the Board seeking their views and advices on the proposed revised and updated principles and criteria (as set out in the paper) for designating new country parks or extending existing country parks.  In the 2011 Working Paper, the Authority set out the history and background of (a) the then existing guidelines and criteria for designating country parks; and (b) the existence of enclaves because of the presence of private lands.  It also referred to the Sai Wan Incident and the 2010 Policy as the underlying context and reasons for the need to update and revise those criteria and principles.

17.  The Board at its meeting on 24 May 2011 endorsed these proposed revised principles and criteria (“the 2011 Criteria”).

B3.   Consideration and designation of the 6 Enclaves

18.  Since then, the Authority has commenced the process of assessing the 54 enclaves with reference to the 2011 Criteria in batches.

19.  The first batch of three enclaves, ie, Sai Wan, Kam Shan and Yuen Tun, were assessed and considered to be suitable for inclusion in country parks.

20.  The second batch consisted of nine enclaves: Fan Kei Tok, Sai Lau Kong and the site near Nam Shan and the 6 Enclaves.  After assessments, the Authority considered Fan Kei Tok, Sai Lau Kong and the site near Nam Shan to be suitable for recommendation to be designated as country parks by incorporating them into the surrounding country parks for protection under the CPO.  The Authority thereafter gave detailed deliberation of these proposals at the Country Parks Committee (“CPC”)[5] and the Board meetings.

21.  As to the 6 Enclaves, the Authority’s assessments (carried out with the AFCD) were that they were unsuitable for incorporation into the surrounding country parks.  He therefore decided not to recommend them to be so designated as country parks.

22.  As mentioned above, the Authority had sought the view and advice of the Board on the Authority’s proposal and recommendation to designate Fan Kei Tok, Sai Lau Kong and the site near Nam Shan as country parks by incorporating them into the surrounding existing country parks.[6]

23.  On the other hand, for the 6 Enclaves not recommended for incorporation into country parks, the Authority did not seek to consult the views of the Board.  It is the Authority’s position that he is under no legal obligation under the CPO to consult the Board for a decision not to recommend an area to be designated as country park.  However, it is also the Authority’s case that he did provide on a voluntary basis a gist of considerations on each of the 6 Enclaves to the CPC members at a meeting on 12 February 2014 and agreed at the Board meeting on 24 February 2014 to provide the same to the Board for information.[7]

24.  In this respect, the Authority has emphasized that although he has decided not to recommend the 6 Enclaves to be designated as country parks by incorporation, these enclaves have since been subject to the respective draft OZPs, which would offer effective protection and conservation of these enclaves under the TPO.[8]

C.   THIS JUDICIAL REVIEW

25.  The applicant’s respective grounds for challenging Decision 1 and 2 are different.  I would look at them separately.

C1.   Decision 1

26.  Section 5(1) of the CPO relevantly provides as follows:

“5. Establishment of Country and Marine Parks Board

(1) There is hereby established a Country and Marine Parks Board which shall—

(a) act as a consultative body to advise the Authority upon any matter referred to it by the Authority;

(b) consider and to advise the Authority on, the policy and programmes prepared by the Authority in respect of country parks and special areas, including proposed country parks and special areas; and

(c) consider any objections that may be lodged under section 11 or section 17.

…”

27.  The applicant contends that the Authority is obliged under section 5(1)(b) of the CPO, when properly construed, to refer his assessments and proposed non-recommendation decision of the 6 Enclaves to the Board for advice.  This is so as these are in effect policy or programmes prepared by the Authority in respect of the existing country parks respectively surrounding the 6 Enclaves so as to protect those existing country parks.  The applicant therefore says in deciding not to so refer (ie, Decision 1), the Authority misdirected himself on the law or was in breach of this obligation.

28.  The Authority disagrees.  Mr Wong for the Authority submits that:

(1)   On its plain words, section 5(1)(b) only imposes a duty on the Board to consider and advise those policy or programmes that are prepared by the Authority, it does not seek to and cannot impose or create any obligation on the Authority to refer those policy or programmes in respect of country parks to the Board for advice.  This construction is consistent with and supported by the context that the entire section 5 deals only with the Board’s functions and duties but not the Authority’s.

(2)   Alternatively, even if there is an obligation imposed on the Authority under section 5(1)(b) to refer, it only relates to “policy and programmes” in respect of “country parks” or “proposed country parks” as expressly provided for.  However, the Authority’s assessments and decision not to designate the 6 Enclaves as country parks (a) do not fall within the meaning of “policy and programmes”; and (b) in any event are not matters in respect of “country parks” or “proposed country parks”.

29.  The Authority was therefore free not to refer the assessments and the proposed non-recommendation decision to the Board for advice.

30.  The contentions therefore raise the following two principal questions:

(1)   As a matter of construction, does section 5(1) impose an obligation on the Authority to refer his policy or programmes in respect of country parks and proposed country parks to the Board for consideration and advice.

(2)   If so, whether the assessments and the proposed decision not to designate the 6 Enclaves as country parks are “policy” or “programmes” in respect of “country parks” or “proposed country parks” intended under section 5(1)(b).

31.  In relation to the first question, on a proper and purposive construction in context,[9] I accept that section 5(1)(b) imposes an obligation on the Authority to refer his policy and programmes in respect of country parks (including proposed country parks) to the Board for consideration and advice.  My reasons are these.

32.  Under section 5(1)(a), the Board is required to advise the Authority on any matter that is “referred to it by the Authority”.  In other words, it is for the Authority on a voluntary basis to decide what matters he wishes to refer to the Board for consultation, and the Board must so consider those matters once they are referred to it by the Authority.

33.  If section 5(1)(b) is to be construed, as suggested by Mr Wong, to only provide that the Board must consider any policy and programmes that the Authority wishes, also on a voluntary basis, to refer to the Board for advice, this subsection would serve no useful purposes and is superfluous, since the Authority could already do so under section 5(1)(a) if and when he so wishes. Under section 5(1)(a), the Board also has a duty (and thus must) consider and advice any matters referred to it by the Authority.

34.  Therefore, when considered together with section 5(1)(a), and noting the absence of the use of the words “referred to it by the Authority” in section 5(1)(b) (which are expressly used in section 5(1)(a)), I am of the view that it is the objective implied intention of section 5(1)(b) that the Authority has a reciprocal obligation to refer his policy and programmes in respect of country parks and proposed country parks to the Board for consideration and advice.

35.  This construction is further supported and reinforced when considered in the following relevant context:

(1)   Notwithstanding the general provision under section 5(1)(a), the legislature has specifically further enacted section 5(1)(b) relating to the Authority’s policy and programmes in respect of country parks and proposed country parks.  It underlines the legislature’s objective specific intention to focus on the need for the Board to consider and advise the Authority on such policy and programmes as “prepared” by the Authority.

(2)   In the premises, it cannot be the objective intention of the legislature in enacting section 5(1)(b) that such specific focus it has identified could be easily bypassed by permitting at the same time the Authority to have a discretion to decide whether he wishes to so refer such policy and programmes to the Board for advice.

36.  I therefore conclude that as a matter of proper construction, the Authority has an obligation implied under section 5(1)(b) to refer to the Board for consideration and advice his proposed policy and programmes in respect of country parks and proposed country parks.

37.  However, in relation to the second question, I agree with Mr Wong that the Authority’s non-recommendation assessments and decision do not fall within the meaning of “policy and programmes” in respect of “country parks” or “proposed country parks” under section 5(1)(b).  I will explain why.

38.  First, I accept that the usual meaning of “policy” and “programme” refers to or denotes respectively a course or set of general principles to guide the conducts and plan or scheme that is of general and broad nature.  Such meaning is also consistent respectively with the usual meaning of the Chinese words “政策” and “計劃”. These words therefore are not intended to include or cover individual one-off decision made in respect of country parks.

39.  Understood as such, I would regard the 2011 Criteria, which represent a set of general principles and criteria to guide the assessment for designating an area as country park, could be regarded as a “policy” in respect of country parks or proposed country parks.  In this respect, the Authority did refer those proposed revised principles and criteria to the Board for advice, and the Board has endorsed them.

40.  However, the individual specific assessment conducted under the 2011 Criteria and decision made not to designate an area as country park are not and cannot be regarded as a “policy” or “programme”.

41.  Second, I agree that the assessment and decision not to designate an enclave as a country park cannot be a matter “in respect of country parks” or “in respect of proposed country parks”.  The assessment and decision do not involve a country park or a proposed country park as the enclave involved is by definition not a country park or a proposed park.[10]

42.  In this respect, Mr Kat argues that the assessment and decision not to designate an enclave to be part of the adjoining existing country park are indeed matters relating to that existing country park.  This is so since whether or not to incorporate the enclave into that existing country park affects and impacts on the “integrity, the aesthetic and landscape quality” of that existing country park, and thus such a decision is a matter which concerns the protection of the existing country park, and therefore “in respect of country parks”.  This, Mr Kat further submits, is in fact accepted by the Authority as set out in paragraph 2.2 of 2011 Working Paper (in proposing the 2011 Criteria), which reads as follows:

“2.2 Owing to the quickened pace of urbanization, some country park enclaves are facing increasing development pressure. The development in country park enclaves may however not be in tune with the nature environment and could degrade the integrity, the aesthetic and landscape quality of the country parks as a whole. On the other hand, in recent years, there has been increasing public awareness over conservation of natural landscape of the country parks and their surrounding areas, and expectation on the Government to safeguard against any development that would undermine public enjoyment of the natural environment. We consider that there is a need to review the principles and criteria for designating new country parks or extending existing country parks with a view to providing adequate protection to these sites from the nature conservation angle, including their landscape and aesthetic value, and assess the merits, justifications and implications of incorporating any of these sites into the boundaries of new or existing county parks.” (emphasis added)

43.  I am unable to agree with Mr Kat.

44.  Whether a matter is one which is in respect of country parks should be determined by looking at the underlying principal or primary purpose and objective of that matter.  It is clear from the background context (as set out above under section B2) that the principal purpose and objective for the Authority to assess and decide whether or not to incorporate any of the 54 enclaves (including the 6 Enclaves) into any surrounding existing country parks is to protect and preserve the subject enclaves themselves.  That is a matter in respect of whether to best protect the natural landscape of the enclave by designating it as a country park by incorporating it into the adjacent country park.  The fact that the assessment and decision made thereof (one way or the other) may have consequential corresponding effect on the surrounding existing country park (as observed in paragraph 2.2 of the 2011 Working Paper) does not then make those matters in respect of that country park.

45.  In further support of his contentions, Mr Kat has also referred this court to the statutory purpose (“Statutory Purpose”) of the CPO[11] to provide for country parks for public enjoyment as places of recreation and tourism, in which the vegetation and wildlife are protected, and buildings and sites of historical and cultural significance are preserved and maintained.  Leading counsel then submits that, to further the Statutory Purpose, the meaning of “policy or programmes” in respect of “country parks” or “proposed country parks” should be construed to include the Authority’s assessments (carried out under the guiding 2011 Criteria endorsed by the Board) and decisions on whether or not the enclaves are suitable or not for inclusion.

46.  With respect, I am unable to see how the reference to the Statutory Purpose could assist Mr Kat.  The construction the court has arrived at above is equally consistent with the furtherance of the Statutory Purpose.  The Board serves its consultative and advisory functions and duties under section 5(1)(b) by advising at a general level the Authority’s proposed policy and programmes so as to guide the Authority on how to assess and designate country parks under section 4(1), and further discharge his duties under section 4(2) once a country park has been designated.

47.  For these reasons, the Authority’s assessments and non-recommendation decision relating to the 6 Enclaves are not policy or programmes in respect of country parks, or proposed country parks.  He was therefore not obliged to refer these conclusions to the Board for consideration and advice.  The Authority had not misdirected himself on the law or was not in breach of any legal obligation in not referring them to the Board for advice.

48.  The applicant fails in her challenge against Decision 1.

C2.   Decision 2

49.  The applicant’s challenge against Decision 2 is premised on his complaints on the way the respective assessments of the 6 Enclaves were done.  The applicant argues that the assessments were unlawful as they were carried out not in accordance with the statutory duties or purposes of the CPO, they did not comply with the policy as reflected in the 2010 Policy and the 2011 Criteria, and they were Wednesbury unreasonable in that they failed to take into account relevant matters, took into account irrelevant matters (including mistakes of fact) and were in any event irrational.  These grounds therefore would require the court to look at and examine the contents and the reasoning set out in these assessments.

50.  However, before I can consider these grounds of challenge in detail, I have to first deal with the preliminary question as to what were the actual assessments that Authority had relied on in deciding not to recommend the designation of the 6 Enclaves as country parks.  This question arises in the following way.

C2.1  A preliminary question – which were the actual assessments relied on by the Authority

51.  The Authority prepared the Summary Report of the Country Parks Committee (Working Paper: WP/CMPB/2/2014) (“the Summary Report”) to inform members of the Board issues discussed at the CPC meeting held on 12 February 2014.  At paragraph 3.2 of this paper, it is stated that members of the CPC were briefed about the 6 Enclaves which “had been assessed to be not suitable for incorporating into country parks.  Members were also informed that these 6 enclaves had already been protected by statutory plans under the Town Planning Ordinance.”

52.  By a letter dated 10 April 2014, the applicant on behalf of the Save Our Country Parks wrote to the Authority and the Chairman of the Board seeking, among others, copies of the assessment of the 6 Enclaves referred to in paragraph 3.2 of the Summary Report and copies of the reasons for the decision not to incorporate the 6 Enclaves into surrounding country parks as revealed at the CPC meeting.

53.  In relation to the above requests for copies of the assessments and the reasons as revealed at the CPC meeting, the Board by a letter dated 30 April 2014 replied as follows:

“At the [CPC] meeting held in February 2014, the Authority had already provided members with assessments of [the 6 Enclaves]. Attached please see these assessments which have already set out why these six enclaves are considered not suitable for incorporation into country parks.”

54.  The six assessments attached to this letter have since been exhibited as “CKL-5” to the applicant’s 1^st affirmation.  I would collectively refer to these six assessments as the “CKL-5 Assessments”.

55.  Each of the CKL-5 Assessments is about two pages long (excluding the copies of the figures attached to it) with five to six paragraphs setting out the assessments and the reasons why the Director/Authority concluded that subject enclave was not compatible with the surrounding country park area and was not recommended for incorporation.

56.  In challenging Decision 2 for unlawfulness and unreasonableness in the Form 86 when the applicant applied for leave, the grounds of challenge were focused only on the reasons and assessments set out in the CKL-5 Assessments, since as far as the applicant was aware of, the assessments relied on by the Authority were the CKL-5 Assessments.

57.  However, when the Authority filed his evidence in opposition in these proceedings, at paragraph 47 of Sham Chun Hung’s affidavit dated 26 January 2015, Mr Sham explained the assessments of the 6 Enclaves carried out by the Director as follows:

“47. However, on a discretionary basis, for reference and goodwill purposes, a gist of considerations of each of the enclaves will be provided to CPC members. The gist of consideration comprises a summary of the assessment conducted in accordance with the 2011 Criteria and the said other considerations including the configurations and distribution of private land, site terrain, perception of the community, management difficulties, etc. The Authority was bound to, and did, take into account all relevant considerations, and not just the 2011 Criteria, in making his decision regarding the 6 enclaves. With regard to Hoi Ha and the other five enclaves at issue, the Authority provided the gist of consideration on each of the enclaves to the CPC members on 12 February 2014 and agreed at the Board meeting on 24 February 2014 to provide the same to the Board for information. In any event, on behalf of the Authority I now produce as exhibit ‘SCH-4’, copies of the assessments of those six enclaves. As can be seen, each of the assessments took into account fully the 2011 Criteria. I also produce exhibit ‘SCH-5’, copies of the CPC Working Paper 1/2014, which sets out a summary of the assessment results and the ‘other considerations’ taken into consideration by the Authority. For the avoidance of doubt, the Authority’s agreement to provide such information in the aforementioned or any other instances is a matter of discretion instead of any legal obligation.”

58.  Hence, Mr Sham has exhibited “SCH-4” as the actual assessments carried out for the 6 Enclaves.  For convenience, I would refer to these assessments as “SCH-4 Assessments”.  Each of the SCH-4 Assessments is of seven to eight pages long and with some 20 or more paragraphs together with tables. Each of them is therefore significantly longer than each of the CKL-5 Assessments and contains much fuller, more detailed, more comprehensive assessments and reasons than those as stated in the CKL-5 Assessments leading to the conclusion that the subject enclave was not suitable for incorporation into country parks.

59.  The effect of Mr Sham’s above evidence is thus that the CKL-5 Assessments are only the summaries of the actual assessments of the 6 Enclaves on the suitability of incorporating them as country parks.  The actual assessments carried out by the Director and relied on by the Authority were in fact the full assessments as shown in the SCH-4 Assessments.

60.  In light of how the evidence regarding the assessments has evolved as summarised above, at the applicant’s application, I gave leave to the applicant to cross-examine Mr Sham at the hearing on the limited scope as to whether the SCH-4 Assessments (but not the CKL-5 Assessments) reflect and represent the actual assessments relied on by the Authority at the material time to decide not to recommend the incorporation of the 6 Enclaves into the surrounding country parks.

61.  Mr Sham’s relevant evidence given under cross-examination and re-examination is in summary this:

(1)   He was at the material time the Assistant Director (Country & Marine Parks) of the AFCD.  He started his pre-retirement leave in August 2015 and has formally retired since 2016.  He was personally involved with his colleagues in the assessments of the suitability of the batch of nine enclaves (ie, the 6 Enclaves together with three others, namely Fan Kei Toi, Sai Lau Kong and the site near Nam Shan) to be designated as country parks by incorporating them into the surrounding country parks.  He had also attended various meetings with the Board and CPC concerning these nine enclaves.

(2)   He agreed that the assessments of the nine enclaves were carried out at around the same time as a batch.  The assessments of the nine enclaves were completed and an opinion or view was formed by December 2013[12] that the 6 Enclaves were not suitable to be so incorporated while the other three were.

(3)   The AFCD was very serious and concerned about these assessments.  The Director (also as the Authority) was in fact particularly concerned with the assessments.  Mr Sham and his colleagues at the AFCD (together with the Director and the Deputy Director) had had a number of internal meetings discussing how the assessments were to be carried out and the assessments themselves.  The Director himself had on a number of occasions at the meetings given opinions and guidance on how to move forward and carry on with the assessments.

(4)   He confirmed that none of these meetings were minuted, but he said that there should be various draft versions and working copies of these assessments before the final ones were produced.  There should also be internal emails reflecting the meeting themselves.

(5)   He said the SCH-4 Assessments represented and recorded the actual assessments carried out by the AFCD and relied on by the Authority in not recommending the incorporation of the 6 Enclaves.  The CKL-5 Assessments were only the summaries of the full assessments, and produced to the CPC for reference and information.  As the Authority was not required to consult the Board and the CPC for the non-recommended enclaves, it was sufficient to only give the summaries of the assessments to the CPC members. Since the applicant in the letter dated 10 April 2014 asked for the assessments and reasons as presented in the CPC meeting, it was therefore also sufficient to only provide her with the CKL-5 Assessments, as these were the assessments produced at the meeting and the reasons given there.

62.  With respect, for the following reasons, I am unable to accept Mr Sham’s evidence that the SCH-4 Assessments represent or reflect the contents of the respective assessments actually relied on by the Authority in making the non-recommendation decision.

63.  First, it is inherently incredible and illogical that the CKL-5 Assessments are summaries based on the SCH-4 Assessments.  The objective contemporaneous documents show that the CKL-5 Assessments were prepared before 7 February 2014 (see Mr Sham’s email dated 7 February 2014 to the Environmental Protection Department seeking comments on the CKL-5 Assessments).[13] At the same time, it is the Authority’s own case and evidence that the SCH-4 Assessments were only prepared and produced after 7 February 2014.[14]  The Authority’s own submissions through counsel also accept that the SCH-4 Assessments were prepared and produced after the CKL-5 Assessments.  As pointed out by Mr Kat to Mr Sham under cross-examination, it could not be correct that the summaries could be based on something which were only produced later.  In reply, Mr Sham simply disagreed with this proposition but could not offer any credible explanations as to how and why that could be case.  The illogicality of this chronology becomes even more significant when Mr Sham accepted in evidence (and Mr Wong in submissions also fairly accepted) that the Authority had reached a decision based on the assessments by December 2013 that the 6 Enclaves were not suitable to be incorporated into the surrounding country parks.  In other words, the actual assessments had already been completed before 13 December 2013 (see footnote 12 above).  As such, it is unexplainable as to why the fuller, more detailed and comprehensive SCH-4 Assessments were not and could not be prepared and produced well before the purported summaries recorded in the CKL-5 Assessments were produced sometime in February 2014.

64.  Second, it is Mr Sham’s own evidence that the AFCD and the Director (as the Authority) regarded the assessments of the nine enclaves of importance.  He even said that the Director himself had at various meetings given his opinions and guidance as to how the assessments should move forward and be carried on.  In the premises, it is also inherently incredible that there are no minutes or any contemporaneous records of all these high level meetings within the Government department as to what were discussed and even agreed upon in the meetings.  It is also important to note that none of the drafts and working papers or emails mentioned by Mr Sham have been produced in evidence.  Without copies of the records of the meetings, or these purported working draft papers or emails, the Authority has also failed to satisfy the court that the subsequently prepared but much fuller, more detailed and comprehensive SCH-4 Assessments accurately recorded and thus represent the actual assessments said to be carried out well before then.  It is simply not believable, if this is to be so suggested, that the detailed and comprehensive SCH-4 Assessments could be accurately prepared and produced purely by the drafter’s memory and recollection.

65.  Mr Wong for the Authority however submits that the fact that the AFCD had carried out the actual detailed assessments of the 6 Enclaves as recorded in the SCH-4 Assessments is credible as it is consistent with the objective and undisputable facts that:

(1) The assessments of the nine enclaves were carried out at the same time.  There are thus no reasons why only full assessments were carried out in accordance with the 2011 Criteria for the three enclaves but not the 6 Enclaves.

(2) It is also inherently credible that the AFCD needed to produce the full assessments for the three recommended enclaves first since they had to consult the Board for that recommendation and then to place the recommendations (with the full assessments) before the CEIC for approval. It is therefore perfectly rational for the AFCD to prepare and produce only the summaries first for the 6 Enclaves.

66.  With respect to Mr Wong, I do not think these matters could explain and answer the problems the court has identified in the above paragraphs regarding the Authority’s failure to prove on a balance of probabilities that the subsequently prepared and produced SCH-4 Assessments represent and reflect accurately the actual assessments of the 6 Enclaves that had been carried out by the AFCD.  If anything, I am of the view that the fact that all the nine enclave assessments were indeed carried out at the same time makes it even more puzzling as to why the AFCD did not prepare and produce the written full assessments for the three recommended enclaves at the same time with the assessment for the 6 Enclaves, but instead prepared and produced their “summaries” first.  It must be noted that there is no evidence to suggest that there was insufficient time to do so for all the nine assessments.

67.  For all the above reasons, the Authority has failed to prove that the SCH-4 Assessments reflect and represent accurately the actual assessments that were carried out at that time in respect of the 6 Enclaves. The Authority therefore also in turn fails to show that he in fact relied on the SCH-4 Assessments (but not the CKL-5 Assessments) to make the non-recommendation decision.

68.  In the premises, I would only proceed to consider the grounds of challenge raised against Decision 2 by looking at the CKL-5 Assessments.  This is what I would now turn to.

C2.2  The CKL-5 Assessments failed to consider the legislative purpose of the CPO or the Authority’s statutory duties under the CPO[15]

69.  To better understand the complaints raised under this ground, it is useful to quote in full say the assessment of “Hoi Ha” as an example of the CKL-5 Assessments below.

70.  The assessment of “Hoi Ha” is set out as follows:

“Assessment on the Suitability to Incorporate the Enclave of Hoi Ha into the Sai Kung West Country Park

1.1 Hoi Ha is an enclave located at the northern end of the Sai Kung West Country Park. It is fronted by the Hoi Ha Wan Marine Park to the north. The enclave has a total area of about 8.5 hectares (ha). A habitat map and an aerial photo of the enclave are shown in Figure 1 and 2respectively. The centre of the enclave is occupied by the Hoi Ha Village where small houses have been built. The periphery of the enclave comprises woodland, abandoned agricultural land, seasonal streams and coastal vegetation. The woodland habitat is made up of both relatively undisturbed, native woodland and young woodland that has developed from abandoned agricultural land. There is also a small stand of fung shui woodland located near the village area. Coastal vegetation can be found fringing the northern end which fronts the Hoi Ha Wan Marine Park. The young woodland and native woodland together form the greenery at the periphery of the enclave. The agricultural land has been abandoned for years and is now dominated by common species interspersed with shrubs or small trees. The relatively undisturbed, native woodland is natural in setting and comprises different native shrub and tree species. The fringe adjoining Hoi Ha Wan Marine Park is scattered with mangroves and coastal shrub and tree species.

1.2 Hoi Ha Village is a recognized indigenous village located in the central part of the enclave and is easily accessible by public transport via Hoi Ha Road. It has a village environ of about 2.9 ha (about 34%) inside the enclave. Hoi Ha Village currently accommodates some 30 village houses which are mostly 3-storey buildings. There are houses which are converted for business uses such as stores, restaurants, rental of water-sport gears etc. Most of these houses are inhabited and are maintained in good conditions. According to the Town Planning Board Paper (no. 9368) on the draft Hoi Ha Outline Zoning Plan dated June 2013, the outstanding demand and 10-year forecast (2013-2022) for small house need in Hoi Ha Village are said to be 15 and 84 based on District Lands Officer/Tai Po’s information. 5 of the 15 outstanding applications have already obtained planning approval from the Town Planning Board.

1.3 The enclave is popular to the general public for passive outdoor recreation, such as hiking, water-sport and nature appreciation. Nevertheless, the attractiveness of the enclave to the visitors is largely attributed to the attractions in the adjacent Hoi Ha Wan Marine Park and Sai Kung West (Wan Tsai Extension) Country Park. Though active in recreation uses, there is little room for expansion of recreation activities due to the distribution of private land in the enclave if it were to be incorporated into the Sai Kung West Country Park.

1.4 The enclave has about 2.1 ha (about 25% of the total area) of private land. A plan showing the private land distribution in the enclave is at Figure 3. The Hoi Ha village and the private land are localized to the flat land of the enclave which can make the provision of country park facilities and daily management difficult if the enclave were to be incorporated as part of the Sai Kung West Country Park. The extensive settlement and frequent villagers’ activities in Hoi Ha Village is not compatible with the country park settings.

1.5 According to the above assessments, the enclave is not compatible with the surrounding country park area owing to its existing land use and development potential. In fact, the Hoi Ha Village which occupies the core area of the enclave is already developed and easily accessible by public transport. The potential for recreation use is also limited due to the presence of private land and the thriving activities therein. In conclusion, the enclave is not recommended for incorporation into the Sai Kung West Country Park.”

71.  All the other assessments are set out in the similar way and fashion, and each of the CKL-5 Assessments proceeded in summary in the following way:

(1)   It started off by providing a general description about the concerned enclave’s size, locality, physical landscape, and a description of the types of vegetation in it in a very general way (for example, describing the types as native woodland, shrubs and trees) and the kinds of recreational activity that visitors of the enclave usually do there.

(2)   It then went on to set out the extent of the presence of privately owned land in the enclave and the extent that the privately owned land occupied the flat land in the enclave.  It also recorded the forecasted demand of the number of small houses to be built there by the villagers for the next 10 years or so made by the District Lands Office.

(3)   It gave the opinion that, by reasons of the extent of the privately owned land within the enclave, the forecasted demand of small houses to be built there within the next 10 years or so, the visitors’ purposes of visiting the enclave and/or the usual recreational activities carried out there, there would be management difficulties in managing the enclave as a country park if it was to be incorporated.

(4)   In light of the identified management difficulties, and the potential developmental demand and/or low recreational value of the enclave, it concluded that the enclave was not compatible with the surrounding country park, and thus was not suitable for incorporating it into that country park.

72.  Mr Kat contends that in relying on the assessment in way as set out above, the Authority had failed to consider his duties prescribed under section 4 of the CPO, which provides as follows:

“4. Duties of the Authority

It shall be the duty of the Authority—

(a) to make recommendations to the Chief Executive for the designation of areas as country parks or special areas;

(b) to develop and manage country parks and special areas;

(c) to take such measures in respect of country parks and special areas as he thinks necessary—

(i) to encourage their use and development for the purposes of recreation and tourism;

(ii) to protect the vegetation and wild life inside country parks and special areas;

(iii) to preserve and maintain buildings and sites of historic or cultural significance within country parks and special areas but without prejudice to the Antiquities and Monuments Ordinance (Cap. 53); and

(iv) to provide facilities and services for the public enjoyment of country parks and special areas;

(d) generally to administer this Ordinance.”

73.  Mr Kat submits that under section 4, it would be the statutory purpose and duties of the Authority to consider recommending the designation of country parks to develop and manage them by protecting the vegetation and wildlife within them, and to encourage their use and development of recreation and tourism.

74.  In the premises, Mr Kat further says, in deciding whether to recommend or not to incorporate the subject enclaves to become part of the surrounding parks (and thus in turn in deciding whether or not to recommend the designation of those enclaves as country parks), the Authority in discharging those duties, must assess the conservation and preservation value of the subject enclaves to decide whether it is worth recommending for designation.  In other words, in properly discharging his statutory duties and the Tameside duty, the Authority must carry out sufficient inquiries as to the conservation and preservation value of a potential site (such as an enclave) for designation in his assessment.  The scope of such sufficient inquiries is also informed by the criteria provided in the 2011 Criteria concerning the assessment of the conversation value and the landscape and aesthetic value of an area considered for designation.

75.  Mr Kat says the Authority had however failed to discharge these duties in relying on the CKL-5 Assessments.  This is so since in all those assessments, there are simply no or no proper assessments of the conservation and preservation values of the vegetation and wildlife in the subject enclaves.  There is also no conclusion one way or the other on these values of the subject enclave in each of these assessments.

76.  I agree.

77.  As demonstrated above, in each of the CKL-5 Assessments, there was only a very general description of the types of vegetation found in the enclaves, but there was no assessment and conclusion on the conservation and preservation value of the vegetation or wildlife in each of the 6 Enclaves.  Clearly, there was no assessment of these values to the extent as prescribed by sections IA and IB of the 2011 Criteria (see paragraph 80 below).  As such, I am not satisfied that the Authority had in discharge of his Tameside duty and statutory duties properly made sufficient inquires as to the conservation and preservation values of each of the 6 Enclaves before deciding not to recommend them to be designated as country parks.[16]

78.  For this reason, I agree that Decision 2 is unlawful as the Authority in relying on the CKL-5 Assessments to make the non-recommendation decision was in breach of his statutory duties and Tameside duty.

C2.3  The CKL-5 Assessments did not comply with or give effect to the relevant policy[17]

79.  In substance, the policy that the applicant refers to is the 2011 Criteria, which was formulated in light of and pursuant to the 2010 Policy.

80.  To properly consider this challenge, it is necessary to set out the 2011 Criteria in full as follows:

“Principles and Criteria for Designating New Country Parks or Extending Existing Country Parks

The following principles and criteria should be used in selecting areas for designating country parks or extending existing country parks.

I. Intrinsic Criteria

A. Conservation value

Areas with features of special biological, geological or historical interest or the presence of representative species or habitats of the territory have high conservation value, thus deserving special care and protection by designating them as country parks. For areas are of significant conservation value, relatively small in size and are on Government land, they may be designated as special areas under Section 24 of the Country Parks Ordinance. In these areas, emphasis will be put on conservation and education rather than on recreation. The conservation value of an area is determined by such factors as species diversity, degree of naturalness, rarity, fragility, representativeness, intrinsic appeal, historical records, position in an ecological or geographical unit and the potential value.

B. Landscape and aesthetic value

The landscape and aesthetic value of an area can be qualitatively assessed against the following criteria:

(a) degree of naturalness – the extent to which the natural landscape is being maintained, or the extent of influences caused by natural or artificial means;

(b) scenic quality – composition and combination of landscape components such as hills, water-bodies, terraces, vegetation, villages, buildings and other visually attractive features;

(c) the integrity, completeness, uniqueness of the topography, e.g. skylines, hill-slopes, coastlines, water-bodies, etc.;

(d) presence of distinctive, representative features of visual interest, e.g. waterfalls, cliffs, etc.; and

(e) effect of urban development and presence of eyesores.

Where the landscape and aesthetic value of a site would complement the natural beauty of the existing country park, it would be more suitable to designate the site as part of a country park.

C. Recreation potential

This is assessed in terms of the potential physical carrying capacity for countryside recreation activities compatible with the conservation objective. Usually, areas with potential to provide an optimal range of informal outdoor recreation for the general public are considered suitable as country parks. By this it refers to recreation of a kind that can be undertaken at any terms of time or cost, and which includes activities that can be engaged in without specific organization, e.g. barbecuing, picnicking, camping, hiking, nature studying, photography, etc. Areas with very high potential for active recreational use, currently under intensive active recreational use, or the existing recreational use incompatible with the conservation objective might be more suitable for recreation development of the urban style, such as urban parks and gardens or local open space rather than as country parks.

The conservation value, landscape and aesthetic value, and recreation potential are three key themes in considering whether a site is suitable for designation as a new country park or extension of an existing country park.

II. Demarcation Criteria

A. Size

A country park usually comprises an extensive area of land of a continuous nature. Small or fragmented pockets of land not contiguous to existing country parks may not be suitable to be developed as country parks. The average size of an existing country park is about 1800 hectares, whilst the average size of a special area is around 100 hectares.

B. Proximity to existing country parks

It is comparatively more difficult to manage isolated small pieces of land which are far from the-existing management system. It is comparatively easier to extend management services to land adjacent to the existing country parks. Where the landscape and aesthetic value of a site in proximity to an existing country park would complement the natural beauty of the country park, it would be more suitable to designate the site as part of the country park.

C. Land status

Government land is to be preferred when a country park is designated. Notwithstanding this, private land should be included in a country park if the use of the site is compatible with country park setting.

D. Land use compatibility

Most of the private lands in rural areas are mainly Old Schedule agricultural lots or Old Schedule building lots. They should be considered as part of country parks from the perspectives of landscape and aesthetic value, conservation value and function. The use of a site will be assessed if it is compatible with the country park setting. Where the site comprises mainly village houses and fallow agricultural land, it could be considered as forming an integral part of landscape of country parks and thus be in harmony with the entire country park setting. As such, it should be considered to be included in a country park to protect the overall scenic beauty and integrity of the country park. However, where there has been extensive and active human settlements, the site would be considered less suitable for designation as part of a country park.

III. Protection Measures

A. Country park or Special area under the Country Parks Ordinance

Country parks comprise both Government land and private land, and are designated for the purposes of nature conservation, countryside recreation and nature education. Special areas are areas of Government land with special interest and importance by reason of their flora, fauna, geological, cultural or archaeological features. They are designated mainly for the purpose of conservation, and hence intensive recreational facilities are not provided there. All new developments in country parks and special areas require consent from the Country and Marine Parks Authority.

B. Statutory plans under the Town Planning Ordinance

It is recognized that areas not meeting the designation criteria of country parks or special areas still need some kind of statutory control to prevent incompatible-development. The Town Planning Ordinance, Cap 131, empowers the Town Planning Board to prepare town plans with statutory land use zones for ‘Site of Special Scientific Interest’, ‘Conservation Area’, ‘Green Belt’, ‘Coastal Protection Area’ or ‘Other specified uses’ to promote conservation and protection of the environment.

The criteria listed above are simplified in a flowchart at Appendix. These criteria would be used in assessing the suitability of potential sites including country park enclaves for designation as a new country park or extension of an existing country park.”

81.  The 2011 Criteria therefore provide a set of detail guiding principles and criteria which the Authority must apply in assessing whether any of the 54 enclaves should be recommended for designation as country parks.

82.  The applicant under this ground raises a number of complaints to say why the CKL-5 Assessments were not in compliance with the policy reflected by the 2011 Criteria.

83.  The applicant’s first two complaints can be conveniently considered together.  The applicant submits that a principal policy change underlying the 2011 Criteria as compared with the hitherto principles and criteria is that it would include an enclave even containing private land in the country parks where the use of that land is compatible with that park.  See paragraph 3.2 of the 2011 Working Paper[18] and paragraphs 8 - 17 above.

84.  Mr Kat submits that the CKL-5 Assessments however did not comply with or were contrary to that policy change as:

(1) none of them considered or implemented that principal change in the assessment; and

(2) each of the assessments wrongly elevated the presence amount or distribution of private land in the enclave to a determining factor.

85.  With respect, I am unable to agree.

86.  Notwithstanding the change of policy as mentioned above, the 2011 Criteria provide clearly that the Authority should still take into account the land status of the enclave (ie, the existence of private land within the enclave) and management difficulties in the weighing and assessment exercise to decide whether or not the enclave is compatible with the surrounding country park and suitable for designation as country park by incorporation (see sections IIB, C and D).  Although the 2011 Criteria (reflecting the policy change) no longer recognise the presence of private land as a key factor for not recommending the enclave to be designated as country park (as was the position under the pre-2011 guiding principles and criteria), they also do not make the presence and the extent of the presence of private land a non-factor.  It is still a factor relevant for the Authority to consider the questions of compatibility and management difficulties in the assessment.

87.  In the CKL-5 Assessments, the Director (and hence also the Authority) took into account the presence of private land (together with the extent and location of their presence) as a factor to consider whether there would be significant management difficulties and compatibility concerns if the enclave was incorporated into the surrounding country parks.  For the above reasons, it is legitimate for him to so consider under the 2011 Criteria and the underlying policy.  In the premises, I am not persuaded that the Director and the Authority had failed to consider or implement the said policy change or wrongly elevated the presence of private land as a determining factor in the CKL-5 Assessments.

88.  I therefore reject these complaints.

89.  The applicant next complains that none of the CKL-5 Assessments specifically addressed “the conservation value” and “the landscape and aesthetic value” criteria as respectively set out under section IA and IB of the 2011 Criteria.  The assessments are therefore carried out not in compliance or consistent with the 2011 Criteria.

90.  I agree.

91.  As demonstrated in the example of the assessment of “Hoi Ha” above, although there was a description of the landscape and vegetation types in a general way in each of the CKL-5 Assessments, there was no or no proper assessment and conclusion as to the conversation value and aesthetic value of subject enclave’s vegetation, wildlife and landscape.

92.  In particular, section IA and IB of the 2011 Criteria have set out in great details the factors that the Authority shall assess respectively under each of these two criteria.  For example, for conversation value, it is specifically identified under section IA that the conservation value is to be determined by looking at factors such as species diversity, degree of naturalness, rarity, fragility, representativeness, intrinsic appeal, historical records, position in an ecological or geological unit and potential value.  Under section IB, again specific factors listed under subsections (a) to (e) have been set out for the Authority to assess qualitatively the landscape and aesthetic value of the subject enclave.  Most if not all of these factors and criteria have not been referred to or mentioned for assessment in the CKL-5 Assessments, and there was also no explanation in these assessments to say why it was not necessary to assess these or some of these factors in relation to the circumstances of each of the subject enclaves.

93.  In the premises, I agree that the CKL-5 Assessments were not carried out in accordance with sections IA and IB of the 2011 Criteria. It was therefore unlawful for the Authority to rely on them to decide not to recommend the designation of the 6 Enclaves as country parks.  Decision 2 is therefore unlawful and should be quashed.

94.  The applicant’s 4^th to 6^th complaints under this ground again can be considered together.  The complaints are these:

(1)   Each of the assessments wrongly took into account and gave priority to “development potential” over the Authority’s statutory duties to protect and conserve the country parks and his policy commitments urgently and properly to protect the enclaves from incompatible uses and unauthorised development. However, “development potential” was and is:

(a)   not a key criterion or demarcation criterion in the 2011 Criteria;

(b)   the substantive basis for the “development threat” which caused the country parks policy changed in 2011 so as to enable the inclusion of private land into the Parks; and

(c)   notestablished as an incompatible use at present nor as a real possibility in the immediate future in any of the 6 Enclaves.  “Potential” is inchoate by definition.  The “potential” relied upon was not substantiated on the material before the Authority (or investigated by the Director other than by a request of the relevant District Lands Officers, whose past and current forecasts were not supported by their own evidence of applications and permits).

(2)   None of the assessments considered or applied the policy in paragraph 5.2 of the 2011 Working Paper, reflecting the policy commitments to urgent and prompt action in the August 2010 Statement[19] and the 2010 Policy in order to protect those enclaves most urgently in need.  Paragraph 5.2 of the 2011 Working Paper committed the Authority to give priority to [taking effective steps to] protect those enclaves with higher accessibility and those enclaves subject to immediate development threat, as evidenced by applications for development or unauthorized or incompatible development or activities.

(3)   None of the assessments considered or applied the demarcation criteria at sections IIC and IIDof the 2011 Criteria as to how the Authority was to assess land status and land use compatibility.  In particular, none of the assessments considered whether the enclave in question “comprises mainly village house and fallow agricultural land” in which case, inclusion was to be considered to be appropriate to protect to the country park.

95.  With respect, there is nothing in these complaints. As I explained above, under the 2011 Criteria, even read in the context of the 2010 Policy and the August 2010 Statement, the Authority is entitled to and should take into account management difficulties and land use compatibility by considering the private land presence (and the extent of its presence) in the subject enclave to assess whether the enclave should be designated as country park to conserve and protect its natural landscape.  This was what the CKL-5 Assessments sought to do in looking at the factor of private land presence and development demand (under the factor of land use)[20] within the 6 Enclaves.

96.  In this respect, it should be noted that the 2011 Working Paper has at paragraph 4.1 set out three different measures of protecting the enclaves against incompatible uses, which included (a) incorporating them as part of country parks; or (b) statutory planning under the TPO to control the uses of the enclaves.  Paragraph 5.3 of the 2011 Working Paper also stated that the Authority would, in conjunction with departments concerned, “consider whether the enclave is suitable for designation as part of a country park according to the ‘2011 Criteria’, or is more suitable to be protected by including the area into DPA plan followed by an OZP under the TPO”.  This is consistent with the 2010 Policy, where the CE has expressly said that to meet conservation and social development needs, “we will either include them into country parks, or determine their proper uses through statutory planning” (emphasis added).  It is under this understanding and basis that the 2011 Criteria was prepared and endorsed.

97.  Thus, although I accept Mr Kat’s submissions that the 2011 Working Paper at paragraph 4.5[21] and the 2011 Criteria at paragraph IIIB when properly read may suggest that country park designation may offer a more comprehensive protection of the enclaves than by way of statutory planning under the TPO, it does not mean that as a matter of policy, country park designation is to be treated as the only means of protection envisaged by the Government.  The urgent needs to protect the enclaves from unauthorised works and activities have always and repeatedly been expressed in the public statements and policy to be addressed by protection through either country park designation or statutory planning under the TPO.  Clearly bearing these alternative protective measures and their relative pros and cons in mind, the Board endorsed the 2011 Criteria to guide the Authority to assess whether an enclave is suitable to be protected by way of country park designation or by way of statutory protection.  As rightly submitted by Mr Wong, it is not about whether there is or there is no protection for the enclaves, but a question of which is the more appropriate measures of protection in the circumstances of each of the subject enclaves.  It is a matter of professional judgment entrusted to the Authority to make by section 4 of the CPO in applying the 2011 Criteria.

98.  Hence, it cannot be said that once the Authority has come to the conclusion that a particular enclave is not suitable to be designated as a country park and should be protected by way of statutory planning, the Authority must have carried out the assessments not in accordance with the 2011 Criteria or the 2010 Policy as complained by the applicant above.

99.  I therefore reject the applicant’s 4^th to 6^th complaints.

100.  The applicant’s last complaint under this ground is that none of the CKL-5 Assessments took into account the requirements of the Convention on Biological Diversity (“the Convention”), which was extended to Hong Kong on 9 May 2011.  It is the applicant’s contention that it is Government policy to protect biodiversity in Hong Kong in ways consistent with the principles of the Convention.

101.  There is no merit in this complaint.  As far as I can see from the evidence and submissions, there is nothing to suggest that the Government must implement the Convention principles by way of designating areas as country parks.  As stated by Mr Sham at paragraphs 50 and 51 of his affidavit, parties to the Convention are required to adopt measures with regard to the Convention’s provisions as far as possible and as appropriate in the light of its special circumstances for protecting biological diversity, and the proper protection of land to meet conservation needs through either designation of country parks or conservation zonings of statutory plans are in line with the Convention principles.[22]

102.  In the premises, the mere fact that the CKL-5 Assessments do not recommend the designation of the 6 Enclaves does not mean there is contravention of the Convention principles.  As repeatedly pointed out by the Authority in this application, the 6 Enclaves are now protected by statutory planning under the TPO through the relevant OZPs.  I therefore also reject this complaint.

103.  For all the above reasons, the applicant is only successful under this ground in relation to the 3^rd complaint but not under the other complaints.

C2.4  Legitimate expectation[23]

104.  Under this ground, the applicant contends that there is a legitimate expectation that the Authority would comply with and act in accordance with the relevant policy and the 2011 Criteria in assessing the suitability of the enclaves to be incorporated as country parks.  This ground is in effect a flip side of the above ground.

105.  In light of the 2010 Policy, the August 2010 Statement and the Board’s endorsement of the 2011 Criteria, I accept that the applicant has a legitimate expectation that the Authority should comply with the 2011 Criteria when assessing the suitability of the 6 Enclaves for designation as country parks.

106.  In the premises, insofar as I have concluded above that the CKL-5 Assessments failed to comply with sections IA and IB of the 2011 Criteria in failing to assess or properly assess the conservation value and landscape and aesthetic value of the 6 Enclaves, there is a breach of the legitimate expectation and so I conclude.

107.  The applicant is therefore also successful under this ground to this limited extent.

C2.5  The CKL-5 Assessments are unlawful as they failed to take into account relevant consideration or they took into account irrelevant considerations, or they were irrational in public law sense[24]

108.  Before I consider the complaints under this ground, it is pertinent to set out the principles applicable to a relevancy challenge in judicial review.

C2.5.1 Relevant principles

109.  As this court has stated in Pagtama v Director of Immigration (HCAL 13, 45 and 56/2014, 12 January 2016) at paragraph 194,[25] it is now well established that when it is alleged that a decision-maker failed to take into account a relevant consideration in the exercise of a statutory discretion, it is important to distinguish between:

(1)   matters which are clearly identified in the relevant legislation (expressly or implied) as considerations to which regard must be had;

(2)   matters clearly identified by the relevant legislation as considerations to which regard must not be had; and

(3)   matters to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so (“discretionary considerations”) and the decision-maker’s choice in this regard is subject only to Wednesbury unreasonableness challenge in a judicial review.

110.  Further, in relation to the discretionary considerations to the extent that the decision-maker has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for him, not for the court, subject to Wednesbury irrationality: Fok Chun Wa (2012) 15 HKCFAR 409 at paragraph 97, per Ma CJ, citing with approval Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 at 780F - G; R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2008] QB at paragraph 131, per Laws LJ; BH, supra, at paragraph 65.

111.  The Court of Appeal in BI v Director of Immigration [2016] 2 HKLRD 520 at paragraph 47 has also approved these principles in agreeing with Chow J’s judgments in BH v Director of Immigration, supra, at first instance at paragraphs 64 and 65, which are as follows:

[64] Fourth, it is important to distinguish between three different categories of consideration: (i) those clearly (whether expressly or impliedly) identified by the relevant legislation as considerations to which regard must be had, (ii) those clearly identified by the relevant legislation as considerations to which regard must not be had, and (iii) those to which the decision maker may have regard if, in its judgment and discretion, it thinks it right to do so: see Wing On Co Ltd v Building Authority (1996) 6 HKPLR 432, at 439 per Godfrey JA, citing with approval the judgment of Simon Brown LJ in R v Somerset County Council, ex p Fewings [1995] 1 WLR 1037. In relation to the third category of consideration, what is and what is not a relevant consideration for a public decision-maker to have in mind is, absent a statutory code of compulsory considerations, for the decision-maker, not the court, to decide: R (AL Rawl) v Foreign Secretary [2008] QB 289, at para 131 per Laws JA.

[65] Fifth, in relation to the third category of consideration and to the extent that the Director has decided to take into account any particular factor as being relevant to the exercise of his discretion, the weight that should be given to that factor is likewise a matter for the Director, not for the court: see Qamar Zaman v Department of Immigration [2003] HKCU 1439, HCAL 145/2002 (13 June 2003), at paras 17 and 18 per Hartmann J (as he then was).”

112.  Hence, under these principles, save for what have been prescribed by statute, it is for the decision-maker to decide what are the relevant or irrelevant considerations subject only to Wednesbury unreasonableness challenge.

113.  Mr Kat however argues that these principles on relevancy are only limited to the immigration cases.  For other cases concerning administrative decision, such as the present one, especially in environmental contexts, it is for the court to decide what are and what are not relevant considerations.

114.  I disagree.

115.  It is clear that the principles set out at paragraphs 109 ‑ 112 above are not limited only to immigration cases.  The same principles have long been adopted by the courts in other administrative law case such Wing On v Building Authority and Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 cited above.  These authorities have also been relied on by Chow J in setting these principles, which in turn have been approved by the Court of Appeal in BI.

116.  In the premises, these principles are similarly applicable to the present case, and I would bear them in mind in dealing with the applicant’s complaints of the Authority’s failure to take into account relevant considerations and his taking into account irrelevant considerations in the CKL-5 Assessments.

C2.5.2   The assessments failed to take into account relevant considerations

117.  As pleaded at paragraph 106(1)(a) - (d) and (f) - (i) of the RRAF86,[26] the applicant says the CKL-5 Assessments failed to take into account the following relevant considerations:

(1)   The statutory purpose and duties and the policy statements.

(2)   The ineffectiveness for those purposes of control by statutory planning as recognised by the Authority in relation to the recommendation to incorporate Sai Wan.

(3)   That the existing recreational use of each of the enclaves is compatible with country park use and provided strong grounds of suitability for inclusion in accordance with the Ordinance, the various policy statements and the 2011 Criteria, properly understood.

(4)   The Hoi Ha assessment omitted the fact that AFCD is already active in the enclave.  It manages the Marine Park recreation facilities from existing Warden Post situated in that enclave.

(5)   The Pak Lap assessment omitted consideration of whether the evident unauthorised development or land formation activities in paragraph 1 of the assessment provided a reason for protection under the CPO.

(6)   The Pak Tam Au assessment took into account a “small house demand” which was entirely theoretical; it omitted that there was no evidence of any development or small house application or approval.

(7)   The So Lo Pun assessment failed to take into account the critical and urgent need to protect the special conservation value and landscape and aesthetic value of the enclave, the characteristics of which were briefly summarized in paragraph 1 of the assessment (key criteria IA and IB) and the compatibility of the existing recreational use that accords entirely with criterion IIA.

(8)   The Tin Fu Tsai assessment failed to take into account or give any effect in its recommendation to the recorded fact that the enclave has within it, a gazetted water gathering ground in which it is required by law and policy that development should be “strictly” controlled to avoid any possible water pollution; or to the fact that the existing form of recreational use (for war gaming) if found to be incompatible with the recreational purpose of the country park or its regulations, may be prevented or permitted by the Authority on application or objection under sections l6 and 17 of the CPO.

118.  For factor (1), for the reasons I have given above at paragraphs 77 - 78 in concluding that the Authority had failed to discharge his statutory duties in relying on the CKL-5 Assessments, I agree that it can also be said that he had therefore failed to take into account this factor in relying on the CKL-5 Assessments.  The applicant therefore is successful in this complaint.

119.  For factor (2), as I have explained above, the 2011 Criteria in their formulation have already taken into account the relevant pros and cons of the protection offered by country park designation and those offered by statutory planning.  There is no separate requirement under the 2011 Criteria to require the Authority to consider the “ineffectiveness” of the protection offered by statutory planning.  To that extent, and subject to my conclusion that the assessment failed to comply with sections IA and IB of the 2011 Criteria, there is no question that the CKL-5 Assessments failed to take into account this factor separately as a relevant factor.  I therefore reject this complaint.

120.  For factor (3), the assessments did look into the recreational use of each of the 6 Enclaves to determine whether it was compatible with the surrounding country park.  There is thus no question of failing to take that consideration into account.  As rightly submitted by Mr Wong, this complaint in substance is more an assertion of what the conclusion on compatibility the applicant said should have been reached by the Authority.  This is a question concerning what weight of this factor should be attached to in the relevant assessment, which was a multi-faceted and qualitative exercise.  In this context, it clearly cannot be said that it is Wednesbury unreasonable for the Authority to come to the view that the existing recreational uses of these 6 Enclaves, when considered in the context of all the other factors and qualities of the enclaves and the surrounding country parks, were incompatible with the surrounding country parks.  I would reject this complaint.

121.  For factor (4), the Authority considered that there would be management difficulties of the Hoi Ha enclave because of the extent of the existence of private land.  At the same time, there is nothing the applicant has shown or demonstrated by any evidence (let alone clear evidence) or otherwise that the fact that the AFCD is also managing the Marine Park would or should have rendered less so the prospective management difficulties as envisaged by the Authority.  In the premises, the applicant has failed to show that it was Wednesbury unreasonable for the Authority not to take that into account.  I similarly dismiss this complaint.

122.  For factor (5), it is in substance a complaint that the Authority in his assessment should have regarded the unauthorised development or land formation activities as supporting protection by country park designation.  The Authority noted this factor in paragraph 1 of the assessment[27] (as accepted by the applicant herself).  It is only that the Authority did not give this factor such weight as the applicant wished the Authority should have to support protection of the enclave by way of designation instead of statutory planning. This is not a complaint about the failure to take into account this factor, but a complaint of the weight the Authority attached to this in the assessment.  Given the multi-faceted and qualitative nature of the assessment exercise, in light of all the other factors identified by the Authority in the assessment pointing to the incompatibility of the enclave with the surrounding country park, it is clear to me that it cannot be said that it was Wednesbury unreasonable for the Authority not to give this factor an overwhelming weight to tip his assessment that the enclave was not suitable for incorporation for protection.  As it is repeatedly emphasized, the Authority’s non-recommendation does not mean that the enclave would not be protected.  It is only that it would be protected by way of statutory planning through the OZP.  I must therefore dismiss this complaint.

123.  For factor (6), again this is not a complaint about the failure to take into account relevant considerations.  It is a complaint that the Authority had no evidential basis to say there was a “small house demand” in the Pak Tam Au enclave.  The reference to the “small house demand” is at paragraph 1.2 of the Pak Tam Au assessment, which states as follows:

“Pak Tam Au Village is a recognized indigenous village. It has a village environ of about 3.7 ha (about 25%). The village is easily accessible by public transport along Pak Tam Road via a short restricted road. Pak Tam Au Village currently accommodates a cluster of about 12 village houses (one to three storeys) which are mostly maintained in good condition and inhabited. An ancestral hall and some ruins were also found. The total small house demand of 36 is adopted for the Pak Tam Au Village in Town Planning Board Paper (no. 9497) on the draft To Kwa Peng and Pak Tam Au Outline Zoning Plan dated December 2013.”

124.  The “small house demand” was thus based on the figure adopted in the relevant Town Planning Board Paper on the draft OZP.  There was clearly evidential basis for the Authority to refer to this.  This complaint is without merit and should be rejected.

125.  Factors (7) and (8) are again in substance the applicant’s disagreement with the Authority’s conclusion respectively in the So Lo Pun assessment and the Tin Fu Tsai assessment that, after looking at the all the factors, they were not compatible with the surrounding country park and thus should not be incorporated into them.  For the same reasons I have explained above, the court is far from satisfied that it can be said that the Authority’s said professional conclusion reached after a multi-faceted and qualitative assessment is Wednesbury unreasonable.  I would also dismiss these complaints.

C2.5.3   The CKL-5 Assessments took into account irrelevant considerations[28]

126.  Under this ground, the applicant complains that the CKL-5 Assessments took into account the irrelevant considerations of “development potential” and “management difficulties” said to be due to land use or distribution.  Mr Kat submits that these are irrelevant as neither of which was a criterion in the 2011 Criteria and neither of which was supported by any evidence.

127.  There is nothing in this complaint.

128.  Given the criteria set out at sections IIB, C and D in the 2011 Criteria, which expressly ask the Authority to take into account management difficulties, land status and private land use compatibility with country park uses in assessing the enclaves’ suitability for incorporation, it is clearly relevant for the Authority to take these factors into account.  In any event, it certainly cannot be said that it was Wednesbury unreasonable for him to do so.

129.  The contention that neither of these factors was supported by evidence is also without merits.  The Authority principally relied on the fact of the extent of the existence of the private land in each of these enclaves to come to the professional view that there would be management difficulties if the enclaves were incorporated.  The applicant has provided nothing to suggest that the description of the extent of the existence of private land within the 6 Enclaves in each of the assessments is factually wrong. Similarly, the Authority looked at the development potential factor by reference to the forecasted small house demand figures for the next 10 years provided by the relevant District Lands Office.  This is clearly relevant evidence to support the factor.

130.  I will dismiss this ground.

131.  Third, the applicant says the CKL-5 Assessments wrongly took into account the following error of facts:

(1)   Each of the Assessments rested wholly or in part on an error of fact, namely that “development potential” renders an enclave unsuitable for inclusion.

(2)   The Pak Tam Au assessment erred twice in fact as to the enclave’s recreational use firstly by hikers: the village is in fact very popular for hiking.  It lies at or adjacent not only to the Maclehose Trail but is also close to the junction of a number of other trails.  The assessment also erred in fact as to the frequent use of the enclave for passive countryside recreational uses, key criterion IC in the 2011 Enclave Policy.

132.  As submitted by Mr Wong, where “error of fact” is asserted, the law is that, for the court to properly intervene on the basis of an alleged mistake as to fact: (a) there must be shown a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; (b) the fact must have been “established” in the sense that it was uncontentious and objectively verifiable, ie, plainly wrong or established and unassailable; (c) the applicant must not have been responsible for the mistake; and (d) the mistake must have played a material (not necessarily decisive) part in the decision-maker’s reasoning.  Ultimately the touchstone is that of substantive unfairness as a result of the error.  See E v Secretary of State for the Home Department [2004] QB 1044 at paragraphs 61 - 67, per Carnwath LJ; Smart Gain at paragraphs 90 - 99, per A Cheung J.

133.  I agree with Mr Wong that the applicant has simply not adduced any evidence to show clearly that there are the above errors of fact as alleged.  This ground must also be dismissed.

134.  Lastly, at paragraph 106(4) of the RRAF86, the applicant also pleaded that as a complaint under this ground that “the So Lung Pun, Pak Lap, Pak Tam Au, Tin Fu Tsai and To Kwa Peng assessments were illogical in their reasoning and thus irrational in public law sense. Further particulars will be provided following the grant of leave”.  It is obviously inappropriate for an applicant to plead a ground of judicial review without providing the necessary particulars in support of that ground.  On the mere lack of particulars to support a case of irrationality in public law, this ground should be dismissed right away.  Insofar as the applicant is relying on all the other complaints previously relied on to say, as a catch all complaint, that the assessments were irrational, I would dismiss the same for the reasons I have explained above.

D.   WHETHER THE COURT SHOULD ALSO DETERMINE THE CHALLENGES MADE AGAINST THE SCH-4 ASSESSMENTS

135.  I have in the above concluded that the CKL-5 Assessments are defective as they did not provide the necessary assessments on the conversation and preservation values of the 6 Enclaves.  They are therefore also defective as they were not done in compliance with sections IA and B of the 2011 Criteria.

136.  However, it is Mr Wong’s submissions that, even if I do conclude that the Authority relied on the CKL-5 Assessments (instead of the SCH-4 Assessments) to make the non-recommendation decision, and that the CKL-5 Assessments were defective, I should still refuse to grant any reliefs under this judicial review.  This is so as he said the Authority has now provided the detailed SCH-4 Assessments, which he says would answer all the applicant’s complaints made against the assessments, including those that I have upheld in relation to the CKL-5 Assessments.  As such, there is no point in quashing Decision 2 and remitting the matters back to the Authority to re-assess since the Authority would inevitably come back with the same conclusion as now reflected in the SCH-4 Assessments.

137.  In response, Mr Kat of course also argues that the SCH-4 Assessments are also defective, and he has set out at paragraphs 106B(1)-(5) of the RRAF86 extensive further complaints against the SCH-4 Assessments (premised again on the conventional Wednesbury unreasonable ground and relevancy challenges).  These complaints are extensive and, as pleaded, spread over some four pages and comprise of some 13 paragraphs and subparagraphs.

138.  The parties therefore submit that I should also consider and determine on these multiple complaints made against the SCH-4 Assessments in this judicial review.

139.  With respect, I do not think it is either necessary or appropriate for me to go through this exercise.  I will explain why.

140.  I have already concluded above that I find as a matter of fact that the Authority proceeded and relied on the CKL-5 Assessments to make the non-recommendation decision.  I have also concluded that those assessments were defective in law. It is well established that in a judicial review, the court generally should not look at post justifications or reasons given after the challenged decision to determine whether the decision should be set aside.  The court should approach that very cautiously and should only do so in exceptional circumstances and where the subsequent reasons or justification could really be regarded as mere elucidation of the original reasons or justification.[29]

141.  Hutchison LJ in Westminster City Council, ex parte Ermakov [1996] 2 ALL ER 302 (CA) explained some of the policy reasons behind the court’s above cautious approach at p 316 c - e as follows:

“…

(3) There are, I consider, good policy reasons why this should be so. The cases emphasise that the purpose of reasons is to inform the parties why they have won or lost and enable them to assess whether they have any ground for challenging an adverse decision. To permit wholesale amendment or reversal of the stated reasons is inimical to this purpose. Moreover, not only does it encourage a sloppy approach by the decision-maker, but it gives rise to potential practical difficulties. In the present case it was not, but in many cases it might be, suggested that the alleged true reasons were in fact second thoughts designed to remedy an otherwise fatal error exposed by the judicial review proceedings. That would lead to applications to cross-examine and possibly for further discovery, both of which are, while permissible in judicial review proceedings, generally regarded as inappropriate. Hearings would be made longer and more expensive.” (emphasis added)

142.  In my view, these policy reasons apply a fortiori in the present consideration, where I have concluded that the CKL-5 Assessments were not compliant with the 2011 Criteria and it was wrong for the Authority to rely on them to make the non-recommendation decision.  It would thus be in principle wrong for me to allow the Authority to now rely on additional, post-decision-making assessments (which purport to assess those criteria found to have been left out in the CKL-5 Assessments) to meet and defeat the judicial review challenge.  If this is permitted, it would encourage, instead of discourage, sloppy decision making.

143.  In any event, given my conclusion that the SCH-4 Assessments do not represent and reflect the actual assessments made at the material time for the Authority to make the non-recommendation decision, there is a possibility that the subsequently produced SCH-4 Assessments were prepared with the objective (consciously or subconsciously) to justify and confirm the conclusions already made in the CKL-5 Assessments.  In other words, the court cannot be certain as to whether the SCH-4 Assessments represent actual, fair and properly conducted assessments of the 6 Enclaves.  As such, it would be entirely artificial for the court to proceed in this judicial review to examine these assessments against the complaints made against them.

144.  For the same reasons, I also do not accept Mr Wong’s submissions that, in light of the SCH-4 Assessments, the results would be inevitable if the court is to refer the matters back to the Authority for re-assessments.  On remittance, the court would expect the Authority and the Director to properly and fairly conduct the assessments again of the 6 Enclaves in accordance with the 2011 Criteria and the statutory duties under the CPO, with no reference in mind to the conclusion previously made under the CKL-5 Assessments.

145.  In the premises, I would not further consider the SCH-4 Assessments and the grounds of challenges proposed to be made against them.[30]

E.   CONCLUSION

146.  The applicant is successful in this judicial review in his challenge against Decision 2 only on the grounds explained at paragraphs 77 - 78, 91 - 93, 105 - 107, and 118 above.  On the other hand, I would dismiss the judicial review against Decision 1.

147.  I would therefore quash Decision 2 and remit the same to the Authority for reconsideration in light of my ruling above.

148.  The applicant is only successful in part in this application.  After considering the extent of her success, and the scope of the arguments raised therein, I think it is fair and just in all the circumstances to make order nisi that she should have half of her costs in this application, to be taxed if not agreed, with certificate for two counsel.  The applicant’s own costs be also taxed in accordance with legal aid regulations.