KWAN KONG CO LTD v. TOWN PLANNING BOARD

Headnote

          Town Planning Ordinance - Objection to draft outline zoning plan under s6(1) - Application for judicial review - Whether Town Planning Board was "Wednesbury unreasonable" in refusing to amend the draft plan - Whether the Board has acted unfairly in dealing with the objection - Whether the constitution of the Town Planning Board, for the purposes of determining s6 objections to draft outline zoning plan is inconsistent with Article 10 of the Bill of Rights.

          Held (Court of Appeal):

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JUDGMENT

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Litton V-P:

Introduction

1. This appeal concerns an objection lodged by the appellant to a zoning proposal in the draft Kwun Tong (North) Outline Zoning Plan No. S/K14N/1. The draft plan, prepared by the Town Planning Board under Section 3(1)(a) of the Town Planning Ordinance, cap 131, was published on 21 May 1993. Pursuant to s6(1) of the Ordinance, persons affected by the draft plan had two months thereafter to send to the Board their written statements of objection. Section 6(2) states:

2. The appellant's land, designated as agricultural land in the block Crown lease, fell within an area zoned as "Other Specified Use" in the draft plan. The "Other Specified Use" zone covered 150.15ha, out of the 172ha (87%) brought under planning control by the draft plan.

3. In the Notes to the draft plan, under the heading "other specified uses" mining, quarrying and use for the purpose of a service reservoir were always permitted; use for the building of flats, houses, offices, residential institutions, shops etc might be permitted on application to the Town Planning Board.

4. The relevant parts of the Explanatory Statement, published together with the draft plan says:

5. Then, under the heading LAND USE ZONING there is the following:

6. The words underlined indicate the temporary nature of the "mining and quarrying" proposal. It is likely that there will be re-zoning in the future to residential and other use.

7. In the old Kwun Tong OZP No. S/K14/3, which the draft plan published on 21 May 1993 replaced, the appellant's land was designated "Green Belt", with severe restrictions on development. The effect of the change in zoning to "Other Specified Use" might, on one view, be thought to relax control on development. Be that as it may, detailed reasons for objections to the zoning were submitted by the appellant's consultants, based upon a variety of considerations, including environmental and traffic considerations. At the same time, the consultants indicated that the appellant would withdraw the objections if the Board agreed to alter the zoning as follows:(i) changing the designation of the appellant's land and the adjoining government land to Residential (Group B) use and (ii) zoning the remaining part of the appellant's land to "Green Belt".

8. On 8 October 1993 the Board gave preliminary consideration to the written statement of objections pursuant to s6(3) and decided not to amend the draft plan. The appellant was notified of this decision.

9. On 15 December 1993 the consultants asked that the appellant be heard at a meeting of the Board under s6(6) and advised that further written submissions would be forwarded by mid-January 1994. Accordingly a meeting was convened to be held on 25 February 1994. But the consultants failed to send the further submissions by mid-January 1994 as promised and asked for a postponement of the meeting. This request was granted, and the meeting was rescheduled for 11 March 1994. But this meeting had to be postponed as well because the consultants again failed to meet their promise to send their written submissions and finally the meeting was rescheduled to 29 April 1994.

10. On 26 April 1994 the appellant's solicitors wrote to the Secretary to the Town Planning Board a letter which, on its face, maintained the original objections, but in its final paragraph added:

"The Board would have already taken note of our preferred position but, should it be considered inappropriate, our client is prepared to take a less strong stance. As an alternative, we are prepared to agree to an alternative proposal to rezone the site into Other Specified Use (Comprehensive Development to include residential units and supporting GIC and open space with interim quarrying activities and other formation work). We consider that this will truly reflect the Board's intention and our client's right to redevelop its site to more beneficial use in accordance with the final plan will be safeguarded."

11. For my part I have difficulty in understanding what the so-called "Less strong stance" means, or what a public officer dealing with the draft plan would make of the proposed restrictions on development if the amendment as proposed by the solicitors were made.

12. This letter was tabled at the meeting held on 29 April 1994 which was attended by a team representing the appellant, comprising counsel, solicitors and the consultants. Much of Mr Martin Lee QC's arguments in this court focusses on this meeting. It will therefore be necessary for me to come back to it, to examine it in greater detail later.

13. Upon the conclusion of this meeting the Board decided not to amend the draft plan and the appellant was so informed by letter dated 1 June 1994 which said:

          "Dear Sirs,

          As required under section 8 of the Town Planning Ordinance, your objection will be included in the schedule of objections not withdrawn which will be submitted together with the draft plan to the Governor in Council.

The application for judicial review

14. On 1 July 1994 the appellant's solicitors took out an application under Order 53 r 3 of the Rules of the Supreme Court, Cap 4 for leave to issue proceedings for judicial review. The reliefs set out in the notice of application were subsequently amended. In its final amended form the orders sought were as follows:

15. Ex parte leave having been given, the application was eventually heard by Waung J, spanning the period 26 January to 8 March 1995 and by his judgment dated 31 July 1995 the application for judicial review was dismissed. Hence the appeal to this court.

Approval by the Governor-in -Council of the draft plan

16. An astonishing feature of this case, which appears not to have been brought to the judge's attention, is this: on 5 July 1994, the day after ex parte leave to issue proceedings for judicial review was given, the Governor-in-Council approved the draft plan under s9(3) of the Ordinance and this was subsequently published in the Gazette pursuant to s9(5). Thereafter it was the approved plan which was effective for all planning purposes: see s13. The draft plan ceased to have any force and effect. Whether the appellant could have sought leave to amend the proceedings by bringing in the Governor and seeking to impeach his approval of the draft plan is beside the point, because this was never done. Accordingly, the lengthy hearing before Waung J last year was largely an academic exercise. And when the point was put to counsel Mr Lee QC on Tuesday, and he was asked if this court's jurisdiction was, in effect, being invoked in vain, his answer was Yes. This sets the tone for this appeal.

The issues before Waung J

17. In the court below, the attack on the Town Planning Board's decision rested upon two main planks:(i) what the judge called the "Wednesbury unreasonableness" point, and (ii) the Bill of Rights point.

"Wednesbury" unreasonableness

18. "Wednesbury" principles, as Lord Scarman explained in R, v. Secretary of State for the Environment ex parte Nottinghamshire County Council [1986] AC 240 at 249, is a convenient legal shorthand used by lawyers to refer to the classical review by Lord Greene MR in the Wednesbury case [1948] 1 KB 223 of the circumstances in which the courts will intervene to quash as being illegal the exercise of administrative discretion. Lord Diplock preferred the term "irrationality" in referring to what is called "Wednesbury" unreasonableness: See Council of Civil Service Union v. Minister for the Civil Service [1985] AC 374 at 410. Sometimes the expression "arbitrary and capricious" is used, or "unreasonableness verging on absurdity". see Lord Scarman in R. v. Secretary of State for the Environment ex parte Nottinghamshire County Council at 247-8.

19. Whatever the precise formulation of the test, the question is whether the judge had erred when he concluded that the Board had not in any way failed to meet the standards of reasonableness in the Wednesbury sense in its decision-making process on 29 April 1994.

The 29 April 1994 meeting of the Board

20. What happened at the meeting was this: (i) After the background to the objection had been outlined by the planning department's representative, counsel for the appellant addressed the meeting and asked the Board to disregard the proposal to re-zone to Residential Group B and Green Belt, but added that the grounds of objection as set out in the letter of 26 April 1994 were still valid. Counsel then made a number of points, many of which were not directly relevant to the question of land use: for example, the possibility of government resuming at a later stage the appellant's land.

          (ii) A representative of the consultants then addressed the meeting on the technical aspects of the objection: for example, that quarrying was not the appropriate means to achieve the objectives of the rehabilitation scheme: that is, the formation of building platforms and the restoration of the degraded slopes by vegetation.

          (iii) The minutes then recorded as follows:

The relevant paragraphs of the minutes read:

Section 6(2) of the Town Planning Ordinance

21. In dealing with the Wednesbury unreasonableness point, the judge came to the view that the provisions of s6(2) of the Ordinance precluded the Board from considering the new proposal for re-zoning (whatever it might have meant) because any proposed alteration to the draft plan by an objector must be made within 2 months of the publication of the draft plan; the Board was therefore right in the end, as the judge found, to have disregarded that proposal. Did Waung J arrive at the correct conclusion, having regard to the statutory scheme for dealing with objections as a whole?

22. Section 6 provides a complete statutory regime for dealing with objections. This is a very important function of the Board. The draft plans, and any alterations to them, can potentially affect many people: not only objectors: As can be seen from ss(7), any amendment made by the Board to meet an objection must be notified to owners and tenants likely to be affected, who in turn would have a right to object.

23. In this case the Board could only have taken one of two views: (i) the new proposal was virtually meaningless, in which case the appellant could hardly have complained if it was disregarded, or (ii) it meant something and might have been workable, in which case it was an entirely different proposal from the original one; in which case it was an entirely different proposal from the original one; in other words, the appellant was seeking at the last minute to change the nature of the objection.

24. As it seems to me, the language of s6 is precise. It is only upon receipt of a written statement of objection in accordance with ss(1) that the Board has the power to give preliminary consideration to it. To be a written statement within the meaning of ss(1) there must be compliance with paras (a) and (b) of ss2. It may be that the language of the section should not be construed too literally, and failure by an objector to formulate an exact alteration to the zoning may not be fatal in every case, so long as the sense of it can be gleaned from the written statement itself Nothing of the kind occurred here.

25. In my judgment the requirements of s6(2) are imperative, not directory and the Board was right to disregard the new proposal put forward by counsel at the hearing. The judge's conclusion on this issue cannot be faulted.

26. Other subsidiary points on Wednesbury unreasonableness, of no discernible merit, were set out in the written submissions but not referred to in oral argument. They can be disregarded for this purposes of this appeal.

Fair hearing

27. Perhaps upon prompting by this court, counsel formulated his case before us on an alternative basis. It was this: fundamental fairness required that when the Board came to the view that the new proposal was out of time, the Board should have given the appellant a further opportunity to advance the old proposal. My difficulty in entertaining this submission is to know what precisely counsel was seeking to argue at the hearing before the Board. Having said that the Board should "disregard" the proposal to rezone to Residential Group Band Green Belt, counsel proceeded to make many points, some of which at least could be construed as abandoning the objection altogether. For instance point (j):

28. Is this in effect a tacit acceptance by the objector of the zoning for "quarry and mining" with the possibility that after rehabilitation of the slopes, there might be a change to residential use? In which case, what precisely was the appellant objecting to?

29. As can be seen from the minutes, it was only very late in the day, after inquiry from a member, that counsel referred specifically to the new proposal contained in the letter of 26 April 1994. And when the Vice-chairman said that the proposal was not received within the objection period, counsel gave no response.

30. As I view the position, the Board had bent over backwards to be fair to the appellant. The hearing was adjourned twice to suit its convenience. The appellant was given every opportunity to put forward its objection. The suggestion of unfairness has no foundation whatsoever.

"Systemic" bias

31. At the hearing before us, Mr Lee QC advanced arguments to this effect: s2(1) of the Town Planning Ordinance enables public officers to be appointed as members of the Town Planning Board and indeed at the 29 April 1994 hearing, the Director of Planning had presided; among the 19 members present, there were a number of public officers: the Director of Lands, representatives of the Secretary for Home Affairs, the Secretary for Transport, and the Director of Environmental Protection. A principal Government Planning Officer was also present. As the Board was entertaining an objection to a draft plan which was the product of the government's planning department the Board was, Mr Lee argues, affected by "systemic" bias. In other words, the Board was not a "competent, independent and impartial tribunal" in terms of Article 10 of the Hong Kong Bill of Rights.

32. Mr Lee did not formulate for us what the consequences in law might be if we acceded to his submission. Herein lies his first difficulty.

33. At the hearing he told us that, of the five orders sought in the amended application for judicial review only the first remained, namely:

"1. An Order that the decision of the Town Planning Board of 29th April, 1994 refusing to amend the draft Kwun Tong (North) Outline Zoning Plan No. S/K14N/1 ('the Plan') be quashed."

34. However broadly that proposed order may be construed, in no way can it be viewed as the foundation for an attack on the constitution of the Town Planning Board: far less can it be construed as seeking a declaration from this court to the effect that the provisions of the Ordinance setting up the Board have, since 8 June 1991, been repealed for Bill inconsistency. That should, in principle, be the end of the appeal on this issue before us, but as the point was dealt with elaborately by the judge and occupies a large segment of Mr Lee's written submissions, I will deal briefly with it.

Article 10 Bill of Rights, Cap. 383

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

35. The first question is: What is the nature of the s6 objection process which, it is said, fails to meet the minimum standards of independence and impartiality set out in Article 10? In other words, given the nature of the s6 process, is Article 10 engaged at all? It will be recalled that, even before the s6(6) hearing, there is a preliminary consideration of the written statement by the Board: the Board can, under s6(3), propose amendments to meet the objection and dispose of it that way. The s6(6) hearing is part of the same process.

36. In R. v. Town Planning Board ex parte The Real Estate Developers Association of Hong Kong MP 2457/95 (8/6/96, unreported) the same point was canvassed. The applicant there applied to the High Court to judicially review a decision of the Town Planning Board refusing to amend sixteen outline zoning plans to which the applicant had objected. There, too, the point was taken that the Board's constitution was inconsistent with Article 10 of the Bill of Rights.

At p59 Leonard J said:

" The Board did not make a final determination of the rights of any member of the Applicant, It was conducting an administrative consultative process, provided by statute, designed to enable it to take into account all shades of opinion before forming a view as to the final form of its recommendations to be made to the Governor in Council."

37. The function of the Board, as stated in s3(1), is to promote the "health, safety, convenience and general welfare of the community" by undertaking the systematic preparation of draft plans upon the directions of the Governor. It is difficult to see how that function can properly be discharged without the presence of at least some of the officials such as the Director of Planning, Secretary for Transport, Director of Environmental Protection etc, or their representatives.

38. And when a person affected by a draft plan lodges a written statement of objection, it is difficult to see how, on any view of the matter, he can be said to be entering into a "suit at law". or seeking the determination of his rights or obligations in terms of Article 10. There are no contesting parties before the Town Planning Board. All that the Board is empowered to do is to entertain the objection in accordance with the provisions of s6 and the under s8 to forward to the Governor-in-Council, with or without the amendments, the draft plan for approval, together with a schedule of the objections, Any final "determination"- if that be that right expression - is made by the Governor-in Council not by the Board.

39. As Leonard J said in ex parte The Real Estate Developers Association of Hong Kong at p54:

"The Board's decision is decisive on the question whether the draft plan should go to the Governor amended or unamended but it is not decisive of the question of the final form of the OZP. That decision which does determine rights is for the Governor in Council."

40. The Solicitor-General rightly concedes before us that the judge had adopted too narrow a construction of the expression "suit at law" in Article 10 by equating it with a "legal proceeding in a court of law". Plainly, it is wider than that: but not so wide as to embrace the administrative process under s6(6).

Proper construction of Article 10

41. The industry of counsel has resulted in two huge volumes of cases bearing upon the proper construction of Article 10 of the Bill of Rights being put before us. This was, as I understand it, largely because of some of Waung J's remarks concerning Silke V-P's broad approach to construction in R. v. Sin Yau Ming [1992] 1 HKCLR 127, It is said that Waung J's view is far too narrow: adopting (to use Lord Wilberforce's language in Minister for Home Affairs v. Fisher [1980] AC 319 at 328H) the "austerity of tabulated legalism", when a generous and purposive approach to the task of construction was needed.

42. In may judgment much of Mr Lee QC's written material, though well- intentioned, is academic: and, to do him credit, not time was spent in oral argument to advance the point further, There can be no doubt as to the proper approach in construing the Bill of Rights. Regard must be had to its international origin: see s2(3) of the Ordinance which reads:

"(3) In interpreting and applying this Ordinance, regard shall be had to the fact that the purpose of this Ordinance is to provide for the incorporation into the law of Hong Kong of provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong , and for ancillary and connected matters."

43. A generous and purposive approach to construction is plainly called for, in order to give effect to its true intent, meaning and spirit., Whether this is any different from the requirements of s19 of the Interpretation and General Clauses Ordinance, Cap 1 is academic there the words used are "fair, large and liberal construction"

44. Nor is it fruitful, in my judgment, to debate whether the Bill of Rights is a constitutional document or in the nature of a constitutional document: if that label has the effect of making a court avoid "the austerity of tabulated legalism", so much the better, As I said in ex parte Lee Kwok-hung [1993]2 HKLR 51 at 56: a narrow construction would render the Bill of Rights virtually self-defeating.

45. But, coming back to this case, and looking at Article 10 of the Bill of Rights, what do we see? It speaks of courts and tribunals. It speaks of the determination of a criminal charge and of rights and obligations in a suit at law It provides for the exclusion of press and public from a trial and refers to "any judgment rendered in a criminal case or in a suit at law?

46. However widely it may be construed, it cannot bring within its scope a s6(6) hearing, which it simply part of an administrative process in dealing with objections to draft plans.

47. In my judgment Waung J came to the right conclusion that Article 10 was not engaged.

Conclusion

48. Before concluding this judgment, I would echo something said by brother Godfrey JA in the course of argument:: looking at the reliefs sought in the original application and at the grounds set out, the application was in truth "half-baked". The declaratory reliefs sought were absurd. Paragraphs 2 and 3 of the reliefs (in their final amended form ) seek declarations in these terms:

49. From these slender hooks hang the argument that the entire statutory scheme for hearing objections to draft plans under the Town Planning Ordinance is "unconstitutional" that is to say. inconsistent with the Bill of Rights and therefore by the operation of s3(2) of the Bill of Rights Ordinance repealed as of 8 June 1991. If this argument be right, the consequences for this community would be catastrophic. In a territory like ours where land resources are so scarce and the proper control of development crucial for the general welfare of the community, to have the statutory scheme for the control of land use destroyed by one stroke of the pen is no laughing matter, And yet, willy-nilly, that was what the judge was being invited to do.

50. I would accordingly echo what Lord Brightman said in R. v. Hillingdon London B. C . ex parte Puhlhofer [1986] AC 486 at 518C:

          "Great restraint should be exercised in giving leave to proceed by judicial review."

51. This calls for a close scrutiny by the judge of the reliefs sought and of the written grounds for application at the ex parte stage mandatory requirements under Order 53 r3(2).

52. If that scrutiny had been given, I apprehend that the application would not have gone forward in the shape it did.

53. This appeal is wholly lacking in merit and in dismissing it I would invite submissions on the appropriate order for costs.

Godfrey, J, A. :

Introduction

54. Litton V-P has set out the background to this appeal. I do not need to repeat that exercise. But I do need to refer, again, to s. 6(6) of the Town Planning Ordinance., Cap. 131 ("the Ordinance"). This lies at the heart of the matter; for when, on 29 April 1994, the Town Planning Board ("the Board") met to consider the appellant's objection to the draft Outline Zoning Plan, and the appellant, by its authorised representatives, attended the meeting and pursuant to s. 6(^) expressed a desire to " be heard", the appellant's authorised representatives thereupon became entitled (1) to a fair hearing (2) before an impartial board. The appellant's case is that it received neither (1) nor (2); so it has really two complaints.

The appellant's first complaint

55. The appellant's first complaint, the, is that its objection did not receive a fair hearing.

56. The relevant facts are these, By a letter dated 26 1994, its solicitors, while maintaining the appellant's objection as formulated in its written statement of objection sent to the Board under s. 6(1) and (2), made a new proposal for alteration of the draft plan, the acceptance of which would result in the appellant's withdrawal of its objection At the hearing on 29 April 1994, the appellant's authorised representative, again while maintaining the validity of the appellant's grounds of objection, requested the Board to disregard the appellant's original proposal contained in its written statement of objection (because it was no longer the appellant's intention to develop the objection site), and to consider instead the new proposal contained in the letter of 26 April 1994, which he developed before the Board. When he had finished, a representative of the government's planning department. present at the hearing, expressed the opinion that the new proposal would not answer all the problems posed in the paper on the subject of the appellant's objection which had been submitted to the meeting; indicated that, without any detailed submission, it would be difficult to decide whether such a proposal could be accommodated; and remarked that, as the new proposal was only received by the Board on 27 April 1994, the relevant government departments had not had sufficient time to comment on it, It was further pointed out, by the Vice-Chairman, that the proposal was not received within the objection period (which was a period of two months from the date on which the draft plan was first exhibited : see s. 5 and s. 6(1) of the Ordinance). After further questions from members of the Board, to which I need not refer, the Vice-Chairman thanked the appellant's authorised representatives for their attendance at the hearing; and those authorised representatives left the meeting at that point, The members of the Board then discussed the whole matter, including the new proposal contained in the letter of 2d6 April 1994. They "considered that the proposal was received out of time and should be disregarded in the further consideration of the objection" (see the formal minutes of the hearing taken at the meeting of 29 April 1994). After further deliberation, the Board decided not to propose any amendment to the draft plan to meet the appellant's objection, The Board noted that the objection procedure was now complete and agreed that the draft plan could be submitted to the Governor-in- Council for approval under the Ordinance.

57. The appellant's complaint, on these facts, is that the Board acted unfairly by entertaining the appellant's submissions on the new proposal without indicating to the appellant at the outset that the Board was not prepared to consider the submissions because they were out of time; and that, by failing to do so, the Board had led the appellant to believe that its new proposal would be considered on its merits. Further, says the appellant, the Board erred in law, in holding, as the appellant suggests, that "the new proposal constituted a fresh objection which was out of time"

58. In my judgment, there is no substance in any of this, for these reasons S. 6(1) and (2) provide as follows:

"6(1) Any person affected by the draft plan exhibited [pursuant to s. 5] may within the said period of 2 months send to the Board a ?strong> written statement of his objections to anything appearing in the draft plan.

(2) Such written statement shall set out-

59. It will be observed that the written statement of objection has to set out, not only (1) the nature of and reasons for the objection, but also (2), if the objection would be removed by an alteration of the draft plan, any alteration proposed. This of course, is designed to give reasonable notice to the Board, both of the nature of and reasons for the objection, and of any alteration proposed the acceptance of which would remove the objection, Indeed, counsel for the appellant accepted before us that, if the Board had simply refused at the outset to entertain the new proposal, the appellant would have had no cause for complaint. However, it appears to be suggested that because the Board received the new proposal, as it were, de bene esse, its conclusion at the hearing (arrived at after the appellant's authorised representatives had withdrawn) not to entertain the new proposal at that late stage was somehow unfair to the appellant. I do not begin to understand this. If the Board had said something to encourage the appellant to think that it would consider the new proposal on its merits and, on the faith of such an indication from the Board, the appellant had changed its position in some way, there might have been something in this complaint. But nothing of that sort happened. All that happened was that the Board, having allowed the appellant to present the new proposal although it was out of time, decided that it "should be disregarded in the further consideration of the objection" (emphasis added). I cannot see how this was unfair to the appellant. The Board considered the objection itself, which is all it was obliged to do. At the most, it might be said that the appellant might, or would, if it had been made clear to it at an earlier stage that the new proposal, received out of time, would be disregarded in the further consideration of the objection, have asked in that case for leave to develop the original proposal which it had earlier asked the Board to disregard on the ground that it was no longer the appellant's intention to develop the objection site. That, however, would have been absurd, the substratum of the original proposal having gone. Alternatively, perhaps, the appellant might lave asked for an adjournment, on the ground that that would give the Board more time to deal with the new proposal; but the appellant did not ask for any such adjournment, and anyway it had no right to expect that such a request would be granted at that late stage and could not have complained if it had been refused. As it seems to me, it cannot possibly be said that the Board, in any way at all, treated the appellant unfairly; its first complaint simply does not get off the ground.

The appellant's second complaint

60. The appellant's second complaint is a much more fundamental complaint. It complains that its objection could not receive an impartial hearing, because the members of the Board who took part in the hearing on 29 April 1994 included one Dr. K.S. Pun, the government's director of planning (who is the Vice-Chairman of the Board and who chaired the meeting of 29 April 1994) and (although less importantly) a number of other public officers.

61. Counsel for the appellant accepts that since (1) the Ordinance enables the Governor to appoint "a Town Planning Board consisting of such official and unofficial members as he may nominate, and may appoint any member of the Board, either ex officio or personally, as Chairman of Vice-Chairman and any public officer as Secretary thereof" (see s.2(1) of the Ordinance), and since (2) no allegation of partiality can properly be made against any individual member of the Board which heard the appellant's objection on 29 April 1994, the composition of the Board can afford the appellant no ground for complaint under the general law. That is, of course, so. From time to time, complaints of "departmental bias" are made against bodies such as the Board here, As is correctly pointed out b the editors of Wade and Forsyth, Administrative Law, 7th ed. (1994) at p.489, no remedy for such complaints is "provided by the principles of natural justice ......". But, says the appellant, a remedy for such complaints is now to be found in Article 10 of the Bill of Rights, headed "Equality before courts and right to fair and public hearing", contained in Part 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383. Article 10 provides, among other things, that in "...... the determination ...... of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law".

62. The Bill of Rights in no doubt (pace the judge below, who seems to have thought otherwise) a constitutional document. It must be given a generous interpretation. The International Covenant on Civil and Political Rights from which Article 10 is derived:

"springs from a consensus of nations, many of whose legal systems adopt a less linguistic and analytical approach for the interpretation of instruments as is taken for granted in countries whose systems originated in the common law".

See per Lord Mustill in Chan Chi-hung v. the Queen [1996] 1 AC 442, at p. 452G. (I have preferred "generous" to "purposive". As Lord Mustill goes on to point out (at p. 452H):

"Quite often the benefits of a 'purposive' approach are illusory since the purpose which is used as a point of reference merely reflects the contention of one or other of the parties about what the words ought to mean.")

I have no doubt that to the proceedings of any court, or tribunal (by whatever name called) constituted here by law to settle disputes as to "the rights and obligations" of Hong Kong people, Article 10 applies, I have equally no doubt, even giving Article 10 the most generous interpretation. that Article 10 does not apply to the proceedings of the Board, which is not in any way concerned with the settlement of such "rights and obligations".

63. But there are other, wider, reasons why Article 10 is irrelevant in this case. What underlies Article 10 is a very simple concept; the concept of fairness. What engages Article 10 is a lack of fairness. Why it is said that the Board cannot be expected to give objectors a fair and impartial hearing, for no other reason but that its Chairman or Vice-Chairman is, or might be, the government's director of planning, and that its membership includes, or might include, other public officers, passes my comprehension, One must have regard to the nature of the exercise which the Board is called on to perform. As I have said, it is not called on to determine a dispute as to anybody's "rights and obligations", it is called on to approve or amend, in the context of the present case, a draft Outline Zoning Plan. after giving consideration to such objections to the draft as may be properly lodged. It is a positive advantage to the work of the Board that its membership should include such people as I have mentioned. The law must allow for the departmental bias which such people are expected an indeed required to have (as Wade & Forsyth (loc. cit.) point out at p. 490). The relevant question is whether, when the members of the Board come to make up their minds, they genuinely address themselves to the question with minds which are open to persuasion. There is no evidence in the present case to the contrary; nor would one expect there to be.

64. I might add that I would find it quite impossible anyway to hold that the proceedings before the Board. when it meets to consider an objection to an Outline Zoning Plan, can properly be characterised as a "suit at law", even giving that phrase, again, the most generous possible interpretation.

65. The fact is that Article 10 has, in this case as all too often before, been prayed in aid circumstances where it can never have been intended to be invoked, There is no substance in the appellant's second complaint, either,

Conclusion

66. For so long as the Bill Rights remains on the statute book, it will in suitable cases enable the judges to protect the people of Hong Kong against the abuse of their civil and political rights by the legislature or (in the rare case where the common law does not already do so ) by the executive. But its utility will be lessened, and its value cheapened, in direct proportion to the number of misguided attempts to invoke its provisions in situations with which it really has nothing to do. We are not really concerned, for example, in the instant case, with the protection of the appellant's civil and political rights at all; we are concerned only with an attempt by the owner of a piece of land in Hong Kong (aided and abetted by its professional advisers) to frustrate a law provided by the legislature (not before time) "with a view to the promotion of the health, safety, convenience and general welfare of the community" : see s. 3 (1) of the Ordinance.

The result

67. For my part, I would dismiss this appeal; and order that the costs of the respondent, both here and below, be taxed and paid by the appellant to the respondent.

Liu JA:

68. The questions to be considered in the round are whether the appellant was unfairly treated by reference to the composition of the Town Planning Board and whether it was unfairly treated by the Board's decision-making process.

69. It is to be borne in mind that Article 10 of the Hong Kong Bill of Rights ("BOR") is exclusively invoked for introducing the "systemic bias" argument in the sense that although section 2 of the Town Planning Ordinance (the "Ordinance") would allow the Director of Planning to be appointed Vice-Chairman to the Town Planning Board ("the Board") in this case, such an appointment is not consonant with the aims of Artice 10. The Board yearns for the expertise and experience of Departmental and other Establishment officials, It is inconceivable that the appointment of Dr K S Pun, the Director of Planning, as Vice-Chairman of the Board could, of itself, bring about systemic bias in breach of BOR or otherwise run counter to the fundamental human rights BOR seeks to protect. After all, the Board membership of Mr Edmund, C W Lo (Principal Government Town Planner, District) it not considered to be controversial, These sentiments aside, as a matter f act, Dr Pun's presiding over the session of the Board on 29 April 1994 was not objected to at the hearing The appellant was apparently content with Board's rejection on its objections to a previous Draft Plan on 24 August 1989 and the Board's paper decision on its present objections after preliminary consideration on 8 October 1993. The appellant merely wished to be heard. The maxim "nemo judex in causa sua" (no man should be a judge in his own case) stems from the common law principle that justice should not only be done, but should manifestly and undoubtedly be seen to be done See R v. Sussex Justices, ex parte McCarty, [1924] 1 KB 256 at p. 259, per Lord Hewart CJ. At the hearing on 29 April 1994, justice must also have been regarded by the appellant could have subsequently felt dissatisfied with the role Dr Pun played on such erudite concept as" systemic bias" How could it be said to be just if, aided by BOR, the appellant were now able to complain? In R v. Byles and Others; Ex parte Hallidge, (1912) 77 JP 40 , and objection on a similar ground made only after the proceedings was disallowed "The point" was held by Avory, J to have been waived. It is, therefore, quite unnecessary for me to deal with Article 10 which applies to a "suit at law", but I would be inclined to agree with Waung J that the consultative process before the Board could not be regarded as "a suit of law"

70. Was the decision-making process unfair? The appellant company had not, so it complains, been explicitly warned in the course of the hearing that its New Zoning Proposal in the same objections, on the same grounds was not to be considered. But there would seem to be no justification of the appellant's claim that it had been lulled into a false sense of security or into believing that its New Zoning Proposal was being entertained by the Board. On 29 April 1994. everyone before the Board was left in no doubt that the New Zoning Proposal was out of time. No one could have failed to appreciate what the law entailed. The appellant was legally and professionally assisted, In any case, by taking any steps to clarify the position, the appellant must take matters as they developed.

71. The statutory regime for the Board's consultative process would not be workable unless objections in the form of "a written statement" setting out the requisite particulars could be made to come in in time. However, time for the lodging of written submissions could be enlarged by the Board as it was in this case.

72. What is required by s. 6 to be sent to the Board is "a written statement of obejection(s)" to the draft plan, and "upon receipt of a written statement of objection". the Board shall consider " the written statement of objection" after preliminary consideration See s. 6 (3) & (6).

73. It is this written statement of objections and one with the specific contents that has to be dispatched, Such a " statement of the appellant's objection is essential to the consultation process for the draft plan and must be timeously sent. A blank notice of objection is not such "a written statement of objections", The matters required by s. 6(2) to be " set out" in the written statement are not, in effect, for facilitating the proper procedure of the objections. They must be set out in order to constitute a good written statement of objections under s.6 This is a "Tai Tung" situation rather than a "Howard" situation. Tai Tung Industrial Equipment Ltd. v. Director of Lands, [1995] 2 HKC 705 and Howard v. Secretary of State for the Environment, [1975] 1 QB 235. The Board was right in not considering the New Zoning Proposal.

74. Against a background of protracted delay, the appellant must have been aware that no further indulgence would ever be granted. In fact, no extension for admitting its New Zoning Proposal could be granted. In any event, by its failure to seek a clarification, the appellant should be the last to complain. The appellant was virtually forced feeding the Board with rejected material in a last-ditch effort which it wee knew to be futile. With knowledge that its belated New Zoning Proposal could never be introduced, and by electing to proceed with its case as it did, the appellant had only itself to blame for any misunderstanding, In fact, the appellant could not have failed to appreciate the situation it faced The New Zoning Proposal was late and the Board which had been rejected after preliminary consideration was categorically abandoned at the hearing and could not have been expected to be favourably received if it had been reventilated. In reality, the appellant had suffered no prejudice. The decision-making process of the Board was not amenable to review.

75. Come what may, no BOR challenge has been mounted against the validity of the provisions of the Town Planning Ordinance, nor indeed is its statutory regime for consultation on the Draft Plan questioned as being inconsistent with BOR. Pursuant to section 8 of the Town Planning Ordinance, the Draft Plan was submitted together, with, inter alia, "a schedule of objections made and not withdrawn" to the Governor in Council for approval. The Draft Plan has been approved by the Governor in Council as the Approved Plan which has since been gazetted. Section 9(2) of the Ordinance provides:

"The Governor in Council may approve a draft plan notwithstanding that any requirements of this Ordinance applicable thereto had not been complied with"

Clearly the Approved Plan is not reviewable for any alleged non-compliance, The Approved Plan had superseded the submitted Draft Plan. The proceedings before the Board are now inconsequential, This court should not be invited to embark on an academic exercise for, perhaps, the benefit of posterity.

76. I, too, would dismiss this appeal.