余靜華 v. 地政總署署長

HCAL 1578/2023

[2024] HKCFI 1143

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1578 OF 2023

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AND

HCAL 1638/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1638 OF 2023

________________________

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AND

HCAL 1639/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1639 OF 2023

________________________

________________________

AND

HCAL 1867/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1867 OF 2023

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________________________

AND

HCAL 1868/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1868 OF 2023

________________________

________________________

AND

HCAL 1869/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1869 OF 2023

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(Heard together)

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D E C I S I O N

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A.  Introduction

1.  I am dealing with these six cases together, as they are materially identical. In fact, they appear to be part of a concerted effort aiming to delay certain enforcement actions by the Director of Lands (“Director”).

2.  The Applicant, and the date of the Form 86 and supporting affirmation, in each of the cases are as follows:

(1)  HCAL 1578/2023: Mr Yu Ching Wah, 5 September 2023;

(2)  HCAL 1638/2023: Mr Tang Oi Ming, 14 September 2023;

(3)  HCAL 1639/2023: Ms Pang Yan Yi, 14 September 2023;

(4)  HCAL 1867/2023: Mr Lam Pik Wah, 17 October 2023;

(5)  HCAL 1868/2023: Mr Lam Kwai Yung, 17 October 2023;

(6)  HCAL 1869/2023: Mr Cheung Bak Yu, 17 October 2023.

3.  I shall refer to the Applicants together as the “Applicants”, and insofar as necessary I shall refer to them individually by their family name.

4.  By their Forms 86 and Affirmations – naming the Director as putative respondent – the Applicants seek leave to apply for judicial review. However, instead of specifying a particular decision of which they are seeking a review, the Applicants seek to “overturn” the Director’s general exercise of power, by making use of the 1982 squatter survey records, in cancellation of squatter survey numbers.

5.  I gave directions for the Director to have leave to file an Initial Response to the applications, and for the Applicants to file a Reply to the Initial Response. The Initial Responses were filed on 31 October 2023 (three) and 14 November 2023 (the other three), signed by Ms Bethany Chu, Government Counsel, of the Department of Justice (“DOJ”). Mr Yu requested for an extension of time for filing of the Reply, which was filed on 5 December 2023 and supplemented on 18 March 2024. No Replies were filed by the other Applicants.

6.  Mr Yu also wrote to the Court on 20 October 2023 requesting the Court to issue directions to the Director for withholding enforcement action against the illegal occupation of Government land by reason of the fact that the applicants in two other judicial review applications had filed the Form 86.

7.  In her letter dated 8 November 2023 (“DOJ’s Letter”), Ms Chu, on behalf of the Director, stated that the Lands Department (“LandsD”) is unable to identify the squatter control cases at issue and is not in a position to comment on Mr Yu’s letter dated 20 October 2023 unless further details are provided.

8.  Mr Yu clarified that the two other judicial review applications to which he referred in his letter are HCAL 1638/2023 and HCAL 1639/2023. According to Mr Yu, Mr Tang and Ms Pang are occupiers of squatter structures at Lower Shing Mun Village of Shing Mun Reservoir. By letter dated 18 March 2024 to the Court (copied to the DOJ), Mr Yu gave his comments on DOJ’s Letter and again set out the same request for withholding enforcement action against illegal occupation of Government land.

9.  Having reviewed the materials, I am satisfied that it is appropriate to deal with these matters together on paper. This is my Decision.

B.  Background of the Squatter Control Policy

10.  The squatter control policy can be traced back to the 1970s. In 1976, the Housing Department (“HD”) conducted a survey on and registered all the then existing squatter structures. In 1982, the HD updated the squatter survey by conducting a territory-wide Squatter Control Freezing Survey (“SCFS”) of squatter structures built illegally on unleased and unallocated Government land and leased agricultural lots, which formed the basis of the squatter control policy (“Policy”). The SCFS registered those squatter structures detected at the time of the survey and recorded the locations, dimensions, building materials and use of the squatter structures. A squatter survey number (“SC Number”) was assigned to each of the surveyed structures in the SCFS (“SC Surveyed Structure”).

11.  According to the Policy, the existence of the SC Surveyed Structures, which are unauthorised temporary structures, are tolerated for the time being until the SC Surveyed Structures cease to exist or involve LandsD’s clearance action for development or environmental improvement reasons or for safety reasons, provided that their locations, dimensions, building materials and use remain the same as those stated in the SCFS records. LandsD may cancel the SC Number and demolish the SC Surveyed Structures, if there is non-compliance with the SCFS records.

12.  The squatter control work was previously undertaken by HD, and was later transferred to LandsD in two phases, being (1) 1 April 2002 in respect of urban area and Islands Districts, and (2) 1 April 2006 in respect of the remaining districts.

13.  Erection of new squatter structures or extension or enlargement to SC Surveyed Structures are prohibited under the Policy. In general, repair of SC Surveyed Structures may be permitted, if (1) LandsD’s approval is obtained and (2) there is no change to the SC Surveyed Structure’s location, dimensions, building materials and use as registered in the SCFS records. The SC Numbers of the SC Surveyed Structures will be deleted by LandsD and the status of the surveyed structure will be cancelled accordingly, once the SC Surveyed Structures have been cleared or rebuilt with permanent materials.

C.  Proposed Grounds of Review

14.  It is trite that in an application for leave to apply for judicial review, the applicant needs properly to identify a specific and proper ground of review, namely by the identification of an alleged public law wrong. This is a mandatory requirement of RHC Order 53 rule 3(2)(a), and a failure to comply with that rule is itself a reason to refuse leave to apply for judicial review. As has been stated on many previous occasions, it is not for the Court to seek to identify or devise potential grounds of review when none are identified by the applicant.

15.  However, although not clearly identified in the Forms 86 and the Affirmations, the Applicants’ allegations are apparently discernible and could be summarised as follows:

(1)  the Policy did not provide for the Director’s power to cancel squatter survey numbers and demolish unauthorised structures;

(2)  even if such power exists, the Director did not publish the Policy which remains inaccessible to the public; and

(3)  all enforcement actions against squatter structures should be taken through the Land (Miscellaneous Provisions) Ordinance Cap 28 (“LMPO”) or other applicable legislations.

16.  In his Reply, Mr Yu also contended that (in English translation, emphasis added):

[F]rom the evidence presently available, there is no factual basis for the putative respondent to say that the Policy concerned existed back in 1982. The earliest Squatter Control Handbook published by the Housing Department did not come into existence until January 1989. In other words, the Policy was probably formulated in 1989 and not before. The Housing Department tried to make use of it to plug the loophole relating to squatter structures. There were seven full years from 1982 to 1989. In respect of the Policy on squatter structures, the Housing Department has no material in support of the putative respondent’s allegation that the Policy had already existed in 1982.

D.  Relief sought

17.  The stated relief in the Form 86 is to prohibit the Director’s present actions and those having been taken after the records of the SC Survey Structures have been abolished on the basis of the records of the 1982 squatter survey until the present case is ultimately decided.

E.  Locus / Standing

18.  The relevant legal test as to standing is whether the Applicant has “sufficient interest in the matter to which the application relates” within the meaning of section 21K(3) of the High Court Ordinance Cap 4 and Order 53 rule 3(7) of the Rules of the High Court (“RHC”).

19.  In the Initial Responses, Ms Chu submitted that – except for Mr Cheung – the Applicants could not show standing in making the applications. No record from LandsD indicates that any Applicant (except Mr Cheung) is an occupier of any surveyed squatter structures. Those Applicants also failed to indicate the standing for making the application, nor how the decision affects him or her so as to render him or her an “interested party”.

20.  In his Reply, Mr Yu repeatedly emphasised that the issues in the application involve “grave public interest” as it would affect “over 300,000 squatter structures” and “interests of millions of citizens including all taxpayers in Hong Kong and also the core value of the rule of law”.

21.  With respect, I see no force in that submission. I do not think the Applicants (except Mr Cheung) have sufficient standing, and this is fatal to their applications.

F.  Whether Undue Delay in Making Application

22.  Further, the Applicants need an extension of time. In the Affirmations, the Applicants set out the following grounds for application for an extension of time:

(1)  Because LandsD failed to do all it could to publicize the related policy extensively.

(2)  LandsD did not do all it could disseminate the related squatter policy to the squatter inhabitants.

(3)  LandsD only made a brief announcement of the squatter policy in question.

(4)  In fact, LandsD could have used postal mail to notify the squatter inhabitants about the amended policy on squatters; however, it did not use every possible means to deliver the related information to the inhabitants.

(5)  Most of the time the squatter inhabitants came to know about the related squatter policy and the newly amended content when staff of LandsD came to conduct inspections.

(6)  LandsD mostly announces its squatter-related information on the internet. LandsD has not fully taken into account the fact that the squatter inhabitants do not have any experience using the internet and their old age.

23.  In my recent decision in Titan Petrochemicals Group Ltd v The Stock Exchange of Hong Kong Ltd [2023] HKCFI 2935 at §§50-58, I addressed the relevant principles relating to the question of promptness and delay. The starting point is that RHC Order 53 rule 4(1) – which rule is headed “Delay in applying for relief” – imposes an obligation on an applicant by requiring that the application for leave to apply for judicial review shall be:

made promptly and in any event within three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made.

24.  Filing an application within three months is not in and of itself sufficient to satisfy the requirement of promptitude. Absent an extension granted by the Court upon good reason, the three-month period is merely a long-stop period – or a quantified default time limit – applicable to all cases. But, public law decisions typically affect a broad range of parties, and there is a significant public interest in ensuring that any challenges to such decisions are brought expeditiously. Full weight must be given to all aspects of the public interest, including the respect which must be paid to the time limits laid down by the rules.

25.  But, in any event, an application made outside the three-month period will entail undue delay.

26.  The existence of good reason for any undue delay does not automatically lead to the grant of leave to apply, and is but one facet of the question whether leave to apply should be granted. Leave may also be refused on the basis that the granting of the relief sought would be likely to cause hardship or prejudice, or be detrimental to good administration – although this conclusion might be less likely to be reached at the leave stage.

27.  Hence, an applicant commencing judicial review proceedings who has been guilty of undue delay will require an extension of time in which to apply for leave to apply for judicial review. To justify an extension, the applicant must show “good reason” for extending the period.

28.  Where the Court considers that there is no good reason for extending the period, it will refuse leave to apply for judicial review. Even if leave to apply is granted, the issue of undue delay on the part of the applicant may be raised again at the substantive hearing of the judicial review application. The relevant consideration is whether, on the substantive hearing, relief might or should be refused on the basis that the Court thinks that relief would be likely to cause substantial hardship or prejudice to the rights of another or be detrimental to good administration.

29.  I see the great force in Ms Chu’s submissions that:

(1)  There was a delay of 41 years (since the Policy was adopted in 1982 to the date of filing of the applications).

(2)  The reasons relied upon by the Applicants are unfounded and the delay is not justifiable.

(3)  The applications are devoid of merit (see below).

(4)  The undue delay causes overwhelming prejudice to the Director and adversely affects the administration of land in Hong Kong, as the Policy has been applied consistently and regularly since 1982.

30.  I am of the view that the Applicants have not acted promptly in all the circumstances, and are not entitled to any extension of time to bring it, which is also fatal to the applications.

G.  No Merits in Application

31.  Anyway, there are indeed no merits in the applications. In short, the Applicants have failed to identify any public law grounds of review which are reasonably arguable with any realistic prospect of success. This is for a number of reasons which individually and cumulatively must result in the dismissal of the applications.

32.  First, it is trite that decisions made by the Director on the handling of suspected unlawful occupation of government land by unauthorised building works is not amenable to judicial review: see Chan Ka Man v Director of Lands [2022] HKCFI 2912 at §3 and Tang Man Ngok v Director of Lands [2024] HKCFI 573 at §15. Decisions by the Director to issue notices under section 6 of the LMPO demanding cessation of unlawful occupation of Government land are land administrative decisions made by the Director in the role of a landowner, therefore not amenable to judicial review. The public element involved is insufficient to render such decisions susceptible to public law challenge.

33.  Secondly, I agree with Ms Chu that there is no other merit in the applications in any event. In the Initial Responses, Ms Chu provided copies of five versions of the Squatter Control Handbooks dated January 1989, October 1991, March 1997, September 1999 and June 2003 (published by HD) and five pamphlets dated August 2016, June 2020, March 2021, December 2021 and April 2023 and a poster (prepared by LandsD). Copies of the Handbooks, pamphlets and poster, which set out the Policy, were available to the public in the public domain, including various Home Affairs Offices and Public Housing Estate Management Offices (before LandsD taking over the squatter control work) and Squatter Control Offices and the twelve District Land Offices of LandsD. The pamphlets and posters were made available to the public via LandsD’s webpages.

34.  In addition, Ms Chu stated that HD and LandsD have also been erecting and maintaining notice boards at squatter areas, setting out the latest Policy and information. The information about LandsD’s strengthened squatter control and improvement measures as announced in its press release dated 22 June 2016 was published in LandsD’s poster titled “Zero tolerance for unauthorised structures”, which was made available to the public for collection in the offices of the Government and also distributed to Heung Yee Kuk, Rural Committees, Village Offices and squatters through site visits, correspondences and interviews.

35.  I accept Ms Chu’s submissions that (1) the Policy and its subsequent changes have been published on multiple occasions and circulated through various means; (2) there are sufficient means of access to the Policy by the public, including squatters; and (3) the Director’s exercise of his general power and performance of duty (including cancellation of SC Numbers and demolition of SC Surveyed Structures) pursuant to the Policy is not affected or limited by the existence of the statutory power given to the Director under the LMPO for commencing enforcement actions.

36.  The allegation that there is no factual basis for the Director to say that the Policy existed back in 1982 is with respect simply a matter of speculation, without proper basis. There can be no reasonably arguable suggestion that the Director has acted unlawfully or procedurally improperly or irrationally or unreasonably in the public law sense.

H.  Result and Costs

37.  In the circumstances, the Applicants’ applications for leave to apply for judicial review are all dismissed.

38.  As to costs, I take the following matters into account in the broad discretionary exercise relating to costs orders:

(1)  As traversed above, Mr Yu sent two letters to request LandsD to withhold enforcement action against the illegal occupation of the government land by Mr Tang and Ms Pang by reason of the fact that they had each filed a Form 86.

(2)  During the enforcement steps taken in November 2023, Mr Chan Ka Man (i.e. the applicant in HCAL 90/2022) and Mr Tang and Ms Pang were present, apparently showing some attempt to obstruct the enforcement action, but to no avail: see my decision in HCAL 1942/2023 at §19(3).

(3)  Mr Tang and Ms Pang are applicants in two out of these six judicial review applications, which are materially identical and which appear connected.

(4)  It seems that the various judicial review applications are essentially a concerted effort which aims to delay LandsD’s enforcement action.

(5)  It should also be borne in mind that there is an extraordinary use of limited Court resources by the filing of the six identical judicial review applications.

39.  As to costs, on the basis of the matters I have canvassed above, and in particular giving significant weight to the last point, I order that the Director’s costs be payable by the Applicants, to be summarily assessed by me on paper. I see no need on a proper assessment to specify that it will be on the indemnity basis, despite Ms Chu’s request in three of the six cases. The Director should provide a Statement of Costs for Summary Assessment by 31 May 2024, and the Applicants have leave to file Objections to that Statement, if any, by 14 June 2024. I will then proceed to the summary assessment.

I.  Postscript

40.  Since drafting the main part of this Decision, I have received further correspondence from Ms Chu of the DOJ and Mr Yu.

41.  By letter dated 6 May 2024, Ms Chu referred to Mr Yu’s letter dated 18 March 2024 (see above), and indicated that – solely for the purpose of saving time and costs – the LandsD would agree to withhold any intended enforcement action against those squatter structure(s) currently occupied by the Applicant(s) of the present judicial review applications, pending determination by the Court. The letter also indicated that, for the avoidance of doubt, that agreement would not limit the right of the Director and LandsD in taking enforcement action against any other squatter control cases in accordance with the applicable law.

42.  By letter dated 13 May 2024, Mr Yu sought to remind the Court that the basis of the applications for leave to apply for judicial review related to the 1982 Squatter Control Policy and whether the Director had lawfully exercised the powers under that policy. As he put it, the issue raised in his application is basically directly related to all squatters in Hong Kong, rather than dealing with individual matters of personal interest. Hence, he said, the Court is dealing with controversial policy issues, not with the personal interests of individual squatters or individuals. Mr Yu also suggested that the stance taken in the DOJ’s letter of 6 May 2024 would give rise to more unnecessary lawsuits, a waste of court time and a waste of taxpayers’ money in contravention of the Civil Service’s functions.

43.  I mention this exchange of correspondence simply as a matter of completeness. However, in light of my ruling in this Decision, the discussion relates to matters which are now effectively moot. This Decision identifies that there should not be any more unnecessary lawsuits, or waste of court time.