BULLEN, CHRISTIAN ANTHONY v. DIRECTOR OF LANDS

HCAL 25/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 25 OF 2013

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D E C I S I O N

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1.  In this judicial review, the applicant (“Mr Bullen”) seeks to quash 2 decisions made by the respondent (“the Director”).

(1) Decision 1 dated 27 October 2012 to take possession of 3 Items, namely, Mr Bullen’s boat, the contents therein, and the steel structures consisting of the steel rails and a cradle supporting the boat; and

(2) Decision 2 dated 6 December 2012 refusing to return the 3 Items to Mr Bullen.

Mr Bullen says that Decision 1 was ultra vires and Decision 2 was unlawful.  He seeks the return of the boat to him.

THE FACTS

2.  Mr Bullen’s boat sank.  He built the steel structures in July 2012 to protect his boat from the risk of typhoons pending repair work.  The steel structures were on unleased government land near Lot No. 337 in Demarcation District 4 LM, Lot Tik Wan, Lamma Island (“the Land”). 

3.  On 19 July 2012, the District Lands Office (“DLO”) posted 9 copies of a notice (“the 1^st notice”) on the steel structures pursuant to the Land (Miscellaneous Provisions) Ordinance, Cap 28 (“the Ordinance”), requiring occupiers of the Land to cease occupation before 3 August 2012, failing which there would be forfeiture of any structure over the land and any property therein.  No boat was seen at the time the 1^st notice was posted. 

4.  On 15 August 2012, DLO staff found the boat placed on the steel structures.  They cordoned off the steel structures with red and white tapes and posted a notice stating that the steel structures had been confiscated.

5.  I am satisfied from the photos produced by the Director that, on 21 September 2012, DLO posted up another notice (“the 2^nd notice”), this time on the boat. The deadline for occupation of the land was 28 September 2012 (“the deadline”).

6.  On 24 September 2012, Mr Leung Wai Pong (“Mr Leung”), (Land Executive of the DLO (Islands)) sent the 2^nd notice to Mr Bullen, both by setting it out in the body of an email and attaching a copy.

7.  One day before the deadline, Mr Bullen applied for a short term tenancy to use the area in front of his house and off the beach (“the STT application”).  Mr Leung informed Mr Bullen that the STT application had been forwarded to another colleague.  He told Mr Bullen that there should have been sufficient time to seek other options to store the boat and unlawful occupation of the Land would not be tolerated; and that a clearance operation would be carried out on the 28^th.

8.  On 28 September, Mr Bullen contacted one Mr Lo of the Marine Department, who allegedly confirmed that the jurisdiction of the Marine Department started below the high water mark (“Mr Lo’s representation”).  Mr Lo did not provide an affirmation.

9.  Mr Bullen in turn informed Mr Cheng Kwong Lok (“Mr Cheng”), Senior Land Executive of the DLO (Islands), about Mr Lo’s representation.  There is a dispute as to how Mr Cheng responded to Mr Bullen.  According to Mr Bullen, Mr Cheng said that they would not take any action if Mr Bullen moved the boat below the high water mark (“Mr Cheng’s representation”).  According to Mr Cheng, he said that the land control action below the high water mark would be withheld for the time being for DLO to seek clarification with the Marine Department.

10.  I am satisfied that in reliance on Mr Lo’s representation, Mr Bullen moved the boat and the steel structures about 4 metres down towards the sea thinking that that was below the high water mark. 

11.  On 28 September 2012, DLO failed to get any concrete reply from the Marine Department.  On the instructions of Mr Cheng, Mr Leung and his enforcement team cut off a small part of the steel structures that protruded above the high water mark in the presence of Mr Bullen.  There is a dispute as to what Mr Leung said to Mr Bullen at the scene. According to Mr Bullen, Mr Leung said, “we will not take any further action and we will forward the file to the Marine Department” (“Mr Leung’s representation”). This was denied by Mr Leung, who said he would seek clarification from the Marine Department as regards DLO’s jurisdiction to take enforcement action. 

12.  Anyway, Mr Bullen emailed Mr Leung on the same day (“the Bullen email”) stating,

“Your comment today; “I will forward the file to the Marine Department.  I was just wondering why you would do that if there was no legitimate complaint outstanding for the new location of the boat.” He heard nothing from the DLO until 25 October 2012.

13.  Subsequent to 28 September 2012, the Marine Department clarified that it only made reference to the high water mark when removing any vessel on a beach and when determining the boundary of waters along the coast line of Hong Kong for the purpose of shipping and port control.  The Marine Department would not get involved in cases like the present where a boat had been placed on a steel structure such that both were treated as a single structure on land.

14.  With that clarification, DLO informed Mr Bullen on 25 October 2012 that since the Land should be under the jurisdiction of the Lands Department, DLO would resume the land control action.  The 2^nd notice was once again attached to the email.

15.  Mr Bullen replied expressing his belief that the previous notice had been spent in view of Mr Leung’s representation.

16.  On 26 October 2012, Mr Bullen requested the DLO to serve a new notice.  It was declined by Mr Leung who stated that the question of jurisdiction had been clarified and that the enforcement action would continue.

17.  On 27 October 2012, DLO removed the 3 Items from the Land.  The court was informed at the hearing that the steel structures have since been disposed of but the boat and the items are with the DLO.

18.  A month later, on 29 November 2012, the tenancy team of the Lands Department informed Mr Bullen by email that his STT application could not proceed under the existing practice.

19.  On 6 December 2012, DLO declined Mr Bullen’s request for the return of the boat.

GROUNDS OF REVIEW

20.  The grounds of review can be summarized as follows:

A. Whether the 2^nd notice had been served on the Land as required by section 6(1) of the Ordinance;

B. Whether the 2^nd notice had been spent;

C. Whether DLO had failed to take into account relevant consideration, namely, Mr Bullen’s STT application before making the 2 Decisions;

D. Whether Mr Bullen had a legitimate expectation that the boat would not be confiscated.

21.  The 5^th ground of “singling out” for enforcement action has since been abandoned by Mr Bullen’s counsel in his submission.

THE LEGAL PRINCIPLES

22.  Section 6 of the the Ordinance provides as follows:

“(1) Subject to subsection (2A), if unleased land is occupied, otherwise than under a licence or a deed or memorandum of appropriation, the Authority may cause a notice, requiring the occupation of the land to cease before such date as may be specified in the notice, to be posted in one or more places-

(a) on or near the land; or

(b) on any property or structure on the land.

(2) If the occupation of unleased land does not cease as required by a notice under subsection (1), any public officer, or other person, acting on the direction of the Authority may, with the assistance of such other public officers or other persons as may be necessary-

(a) remove from the land the persons (if any) thereon; and

(b) take possession of any property or structure on the land.

(2A) Notwithstanding subsection (1), where-

(a) a structure is being erected on or over unleased land, otherwise than under a licence or a deed or memorandum of appropriation; or

(b) a structure has been erected on unleased land, otherwise than under a licence or a deed or memorandum of appropriation, and the Authority is reasonably satisfied that the structure is not being habitually and bona fide used,

any public officer, or other person, acting on the direction of the Authority may, with the assistance of such other public officers or other persons as may be necessary, and without giving any notice-

(i) remove from the structure any person or property therein;

(ii) demolish the structure; and

(iii) take possession of such property and of any property resulting from the demolition of the structure.

(3) Any property or structure of which possession is taken under subsection (2)(b) or subsection (2A)(iii) shall become the property of the Government free from the rights of any person and may be demolished or otherwise dealt with as the Authority thinks fit.”

23.  In this judgment, all references to sections shall be to those under the Ordinance, unless otherwise specified.

24.  The Ordinance created a civil “self-help remedy” to remove persons and take possession of government property.  See Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169 at §16 (CA). 

25.  Part II of the Ordinance was intended to provide the Government as land-owner with ‘extra-civil law’ remedies to enable it to manage its unleased land more effectively: Yip Alice v Wong Shun (No.2) [2003] 2 HKC 528, at §28 and 29, per Madam Justice Yuen.  They are much wider than the remedies enjoyed by a private landlord in dealing with unauthorised occupation of land: Chau Tam Yuet Ching v Director of Lands, HCAL66/2012, 18 July 2012, Au J, §39.   

A. Whether the 2^nd notice had been served on the Land as required by section 6(1) the Ordinance

26.  Mr Ross contends that the 1^st notice had to be regarded as spent so that the 2^nd notice had to be issued.  The 2^nd notice was not served as (1) it was not readable; and (2) that it had “expired” after a reasonable time.

27.  Mr Ross’ misconception has to be corrected.  The 2 notices were directed at different objects, the 1^st at the steel structures, the 2^nd at the boat.  The 2^nd notice was not issued as a result of the 1^st being “spent”. 

A1. That the 2^nd notice was not readable

28.  Mr Bullen claimed to have seen only a soaked piece of paper in a plastic cover hanging loosely from the boat on 21 September 2012.  The contents on that piece of paper were unreadable as a result of water damage.  It was only after receiving Mr Leung’s email dated the 24^th that Mr Bullen presumed that the soaked piece of paper was the 2^nd notice.

29.  A notice has to be clear and legible at the time of posting. However, Mr Ross has not been able to show authorities that require the DLO to ensure that the notice is in a readable form up till the deadline for ceasing occupation.  In my view, there cannot be such a requirement, otherwise DLO would be put under an impossible task of having to check round the clock to see if the notice was lost or has been damaged by weather or defaced. 

30.  The photo in exhibit CKL-5 to Mr Cheng’s affirmation shows that the 2^nd notice was legible on the day of posting.  Mr Bullen clearly knew of its existence latest by 24 September, which was more than a month before confiscation.  No interested party (including the mortgagee of his boat) was prejudiced by the notice being “unreadable”.

31.  Mr Ross also relies on the case of Collector of Customs (N.S.W.) v Traders’ Finance Corporation Ltd [1972] ALR 653, at 663, per Gibbs J, for the proposition that confiscation provisions should be strictly construed. With respect, it is not clear what stricter construction there can be to make out the case that the 2^nd notice was not properly posted.

A2. Expiry of the 2^nd notice after expiry of a reasonable time

32.  Mr Ross relies on section 70 of Cap 1 which provides that where no time is prescribed or allowed within which any thing shall be done, such thing shall be done without unreasonable delay, and as often as due occasion arises.  He submits that a notice under the Ordinance ought to be valid for one month, without specifying counting from when. 

33.  This ground was not raised in Form 86 and the applicant is not allowed to rely on it. 

34.  In any case, the legislature has not provided for a time limit for enforcement and Mr Ross has not cited authorities to the contrary.  Execution of a notice depends on a lot of factors like manpower, workload, or weather.  The civil self-help remedy will only be effective if the Director has discretion to decide how and when action is to be taken.  One month may be unduly restrictive of his powers. 

35.  Just as there is no minimum period of notice (eg because notice may need to be short when there are strong public safety concerns), there should not be an “expiry” date for enforcement.  I do not accept the proposition of Mr Ross as it will generate great uncertainty as to the legal status of a notice at any particular time. 

36.  In any case, the time for occupation under the 2^nd notice expired on 28 September 2012.  The execution on 27 October, within one month of the deadline, could not be said to be unreasonable having regard to the many exchanges between DLO and Mr Bullen.

37.  Ground A is unsustainable. 

B. Whether the 2^nd notice had been “spent”

38.  Mr Bullen contends that the 2^nd notice was “spent” for 2 reasons: (1) that it had been relied on to cut the portion of the steel structures above the high water mark; (2) that Mr Leung made a representation to the effect that the purpose of the 2^nd notice had been fully served.

B1. Reliance on the 2^nd notice to cut the portion of steel structures above the high water mark

39.  The object of the Ordinance is to recover government land which had been trespassed and not just confiscation of objects.  Once the notice period expires, the government is entitled as of right to recover the land.  To say that a notice is “spent” means that it loses legal force and is not enforceable.  It is unimaginable, in the absence of clear legislative provision, that the right to government land would automatically be lost after the government has dealt with some objects on the land, in this case, by cutting away of a portion of the steel structures.

B2. Mr Leung’s representation to the effect that the purpose of the 2^nd notice had been fully served

40.  Mr Leung’s representation is disputed.  According to Mr Leung, he told Mr Bullen at the scene that they would remove the slipway above the high water mark and withhold the enforcement action in respect of the rest of the Steel Structures and the Boat on that day.  Mr Leung also said that they would forward the relevant information to the Marine Department and seek clarification from it as regards DLO’s jurisdiction to take enforcement action.  DLO would continue with the enforcement action if it was clarified that DLO had jurisdiction. 

41.  The parties are content for me to resolve the dispute without the need to cross-examine the witnesses. 

42.  Mr Bullen’s act of moving his boat below the high water mark was consistent with the message he got from Mr Lo and his consistent move in trying to delay enforcement action.  The Bullen email and the fact that it was not replied to until about a month later lend weight to the existence of Mr Leung’s remark that he would “pass the file to the Marine Department”, which I find to have been probably made.

43.  However, I have doubts as to whether Mr Leung’s representation was taken out of context.  Mr Cheng and Mr Leung were aware of the issue of jurisdiction and were keen to resolve it with the Marine Department.  Both of them had been on telephone exchanges during the whole process of enforcement on that day.  Both of them have not hidden the fact that they could not get a concrete reply from the Marine Department on 28 September 2012.  It would be very surprising that in that state of keenness, they would have hastily given up the enforcement without waiting for an affirmative answer from the Marine Department.  It would also be surprising for Mr Leung to have ignored his senior’s view and decided to abandon enforcement action.  I am more inclined to find that both of them had used words like “for the time being” to show that the enforcement process would be suspended and that Mr Leung’s version in paragraph 40 to be true.  The lack of reference in the Bullen email meant that it was improbable for Mr Leung to have said that DLO “will not take any further action”.

44.  Even assuming Mr Leung’s representation was truly made at the scene, it must be seen in the light of the pressing circumstances on 28 September 2012.  The government was indisputably entitled to the Land regardless of which department had jurisdiction.  Mr Cheng was faced with a sudden question of jurisdiction on the very day when enforcement was to proceed, which he was unable to answer.  Passing the file to the Marine Department was an act consistent with DLO’s firm resolve to terminate Mr Bullen’s unlawful occupation of the land.  I find that Mr Cheng’s version in paragraph 9 to be true.  Mr Leung’s representation was consistent with Mr Cheng’s earlier message to Mr Bullen. It could not have meant that the purpose of the 2^nd notice had been fully served.

45.  In any case, all the arguments under Ground B do not apply to the steel structures as the government has already taken possession of them on 15 August 2012 even before the 2^nd notice was issued.  There was the clearest intention to and factual possession of the steel structures by the cordoning off and posting of a notice of confiscation: JA Pye (Oxford) Ltd v Graham [2003] 1 AC 419, at §40-41, House of Lords. 

46.  Ground B is not substantiated.

C. Whether DLO had failed to take into account relevant consideration

47.  Mr Bullen contends that the Director has taken no or no adequate consideration of his STT application in making the 2 Decisions.

48.  Firstly, I agree with Mr Young, counsel for the Director, that the STT application was an irrelevant consideration.  Section 6(1) applies to unleased land “otherwise than under a license …”.  The words in quote do not cover “a pending applicationfor a lease or license”.

49.  Secondly, it will open the door to abuse if a trespasser can hold up the enforcement process simply by asking for a STT on the eve of enforcement and continue to use unleased land for free.

50.  Thirdly, if I am wrong, Mr Cheng’s affirmation shows that DLO had actually considered Mr Bullen’s application for a STT. Alert to the urgency, Mr Leung forwarded the STT application to a colleague of the tenancy team for consideration on the same day with this message:

“In view of the occupier’s application, please advise if it is applicable or my team should withdraw the operation.”

He highlighted that the area under application was on the beach, away from the occupier’s premises. 

51.  Mr Cheung of the tenancy team replied on the following day,

“gAccording to Land Instructions, there is no category of direct grant of STT for parking of yacht. As you may be aware, any available GL should be disposed of by either open tender or auction unless there is policy support from relevant bureau not to do so.

As you have scheduled to take out land control action against the subject unauthorized occupation, please go ahead as tenancy team cannot process such application.”

52.  That was a clear determination on the STT application as a result of the expeditious efforts of both the land control and tenancy teams.  It mattered not that the determination was not communicated to Mr Bullen before confiscation of the boat. 

53.  Mr Ross submits that there was no evidence that Mr Cheung had ever sought policy support from the relevant bureau not to have an open tender or auction.  With respect, it is absurd even to suggest that the Lands Department with clear policy guidelines has to consult other government bureaus for “policy support” every time there is an STT application, regardless of its merits.

54.  I find that, if relevant at all, there had been a determination on the STT application and the DLO had taken it into account when coming to the 2 Decisions.  Ground C is not substantiated.

D. Legitimate expectation that the boat would not be confiscated

55.  In Ng Siu Tung & ors v Director of Immigration (2002) 5 HKCFAR 1, it was held that,

“94. … First, the law requires that a legitimate expectation arising from a promise or representation, the expectation being that the promise or representation would be honoured, be properly taken into account in the decision-making process so long as to do so falls within the power, statutory or otherwise, of the decision-maker.

…

98. … But once the court is satisfied that the outcome would not have been different had the relevant consideration been taken into account, the decision will not be quashed.

…

101. In making out a case for relief in accordance with the principles stated above, the applicants must first establish the existence of a legitimate expectation on their part. Though the concept of "legitimate expectation" is somewhat lacking in precision, it is now firmly established that to be legitimate, the expectation must be reasonable (Attorney-General of Hong Kong v. Ng Yuen Shiu [1983] 2 AC 629 at 636, per Lord Fraser of Tullybelton), that is, reasonable in the light of the official conduct which is said to have given rise to the expectation. Whether an expectation is legitimate in this sense depends, at least in part, upon the conduct of the relevant public authority and what it has committed itself to. Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect. The requirement of legitimacy means that judicial decisions "must be founded not only on what the claimant factually expected, but also on what the claimant, bearing in mind any relevant considerations of policy and principle, was entitled to expect. ... It follows that, to the extent that an expectation of a benefit which cannot legally be accorded, it is not a legitimate expectation.

…

104. While we accept that, generally speaking, a representation relied upon to support a legitimate expectation must be clear and unambiguous, we recognise that there will be cases where a representation is reasonably susceptible of competing constructions. In such a case, far from adopting the construction which is most favourable to the person asserting the legitimate expectation, the correct approach is to accept the interpretation applied by the public authority, subject to the application of the Wednesbury unreasonableness test.”

56.  Mr Ross submits that Mr Leung’s representation and lack of reply to the Bullen’s email until a month later gave rise to Mr Bullen’s legitimate expectation that the boat would not be confiscated.  Mr Leung’s representation and Mr Bullen’s comment that “no legitimate complaint [was] outstanding” had not been taken into account when Mr Leung decided to continue with the enforcement action.

57.  I have found against Mr Bullen on Mr Leung’s representation.  Even if I am wrong, I still reject the submission.

58.  Firstly, Mr Cheng and Mr Leung have given their interpretation of Mr Leung’s representation, which could not be said to be Wednesbury unreasonable.  Applying Ng Siu Tung, this court accepts the interpretation applied by the DLO.

59.  Secondly, the deadline was 28 September 2012. Any occupation beyond that date would have been unlawful: Yip Alice v Wong Shun (No.2), at §16.  Mr Bullen was not entitled to expect that there would be no enforcement action.

60.  Thirdly, the only “reasonable expectation” that Mr Bullen could have when Mr Leung’s representation was made, was that it would be the Marine Department and not the DLO who would take enforcement action.

61.  Fourthly, the expectation of Mr Bullen was not “reasonable”:

(i) There had been complaints about the steel structures and the boat occupying unleased land, which were substantiated.

(ii) Insofar as the steel structures were concerned, Mr Bullen’s “expectation” had arisen after their confiscation on 15 August 2012. 

(iii) Mr Bullen was nowhere near honouring his prior representations that the boat could be repaired and refloated within 14 days or 21 days.  The continued trespass of government land was indefinite.

(iv) Having inspected the location, posted notices, cut off part of the steel structures, it was simply unreasonable to expect that the DLO would have condoned the trespass, be in dereliction of its statutory duties and leave the complaint unanswered.

62.  If I am wrong, the DLO has taken into account the “reasonable expectation” of Mr Bullen by consulting the Marine Department and suspending the enforcement action in the interim.  Apparently, the Marine Department made a clear distinction between removal of a vessel and recovery of land and has not asserted jurisdiction to remove the boat. It was perfectly open to the DLO to restore the enforcement action having clarified with the Marine Department.  According to Mr Cheng, the Marine Department also provided assistance to the DLO by sending its staff to participate in the resumed action.

63.  Ground D is not substantiated.

Decision 2

64.  Mr Ross has not dealt with Decision 2 but the answer is clear.  The Director’s refusal to return the boat was on the ground that anything that has become the property of the government pursuant to section 6(3) would be disposed of in accordance with its prevailing procedures, which did not include returning the property to its original owner.  That was a correct view under section 6(3): Wong Wai Hing Christopher v Director of Lands, HCAL 95/2010, 24.9.2010, at §54 and 58, Lam J (as he then was).  Decision 2 was not unlawful.

CONCLUSION

65.  The 2^nd notice was validly issued and posted in legible form.  Mr Bullen was in no doubt about its contents.  No one was prejudiced by the 2^nd notice being unreadable.  The 2^nd notice remained valid after expiry of the deadline.  DLO has merely suspended but not terminated the land control action pending clarification from the Marine Department.  Mr Bullen was not entitled to expect that there would be no enforcement.  His expectation that the boat would not be confiscated was not reasonable.  In any case, DLO had taken into account his expectation. None of the grounds for judicial review have been made out.  Decision 1 was not ultra vires.  Decision 2 was lawful.  I therefore dismiss the application. 

66.  I make an order nisi that costs should follow the event and be to the Director, summarily assessed and allowed at $160,000.

67.  I thank Mr Ross and Mr Young for their assistance.

(Queeny Au-Yeung) Judge of the Court of First Instance High Court