KWOK CHEUK KIN v. SECRETARY FOR TRANSPORT AND HOUSING AND OTHERS

HCAL 136/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 136 OF 2015

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D E C I S I O N

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Introduction

1. This is an application by the applicant for leave to apply for judicial review in relation to three alleged decisions of the Secretary for Transport and Housing, the Director of Water Supplies and the Hong Kong Housing Authority with respect to the plumbing installed in prefabricated elements in the construction of public housing developments. 

2. This challenge has come in the wake of the reported discovery of excessive and worrying levels of lead in water samples taken from a large number of public rental housing estates in Hong Kong.  It has understandably generated grave public disquiet over the safety and quality of drinking water in the estates concerned in view of the harmful and deleterious effects that excessive lead intake can have on people, in particular the young and persons susceptible to lead poisoning.  There is no question that this is a serious matter of paramount public importance and it has warranted the establishment of a Commission of Inquiry to conduct a wide ranging investigation into the problem. 

3. The Commission of Inquiry is to ascertain the full extent of the cause and effect of the problem and to review and evaluate the existing regulatory and monitoring regimes in respect of drinking water and to make recommendations to ensure generally the safety and quality of drinking water in Hong Kong.  This will necessarily involve identifying and examining any deficiencies or inadequacies in respect of the regimes regulating and monitoring the quality of drinking water in Hong Kong and making appropriate recommendations not only to ensure that the problem is not repeated, but that the safety and quality of drinking water for the people of Hong Kong is guaranteed now and in the future.  The seriousness of this problem cannot be understated as public health and safety are at risk. 

Procedural history

4. It is necessary to set out briefly the procedural history of this case as it reflects on the somewhat unsatisfactory manner in which the present proceedings were initiated and maintained. 

5. On 17 July 2015, as a result of public concern about possible lead contamination of drinking water in public housing estates, the Chief Executive announced the establishment of a Commission of Inquiry to investigate the matter. 

6. On 22 July 2015, the applicant filed a Form 86 (Notice of application for leave to apply for Judicial Review) with brief particulars and a brief affirmation in support both of which were hand written in Chinese.  It named the Secretary for Transport and Housing and the Director of Water Supplies as the proposed 1^st and 2^nd respondents respectively in the proceedings.  In the section in relation to relief sought, the English translation reads: “Law must be enforced and strictly enforced.  Prohibit unauthorized foreign plumbers to install water pipes in scheduled construct buildings.”  That was the sole basis for the application with no mention or particulars of the decisions under challenge or the grounds for judicial review.  The applicant’s affirmation in support was similarly expressed and brief.

7. On 30 September 2015, Lee Chan Cheng, solicitors, filed a notice to act for the applicant.  On the same day, a second affirmation was filed by the applicant where he sought leave to amend the Form 86 by setting out in greater detail the factual background of the application and the grounds for judicial review.  On 5 October 2015, the solicitors for the applicant issued an ex parte summons for leave to amend the Form 86.  In the proposed amended Form 86, a request was made for an oral hearing if leave was not granted on the papers pursuant to the rules of court.

8. By directions from the Court to the parties on 12 and 23 October 2015, the leave application was fixed for oral hearing on 16 December 2015.

9. On 26 November 2015, the solicitors for the applicant issued another ex parte summons for leave to further amend the Form 86 and to join the Housing Authority as the proposed 3^rd respondent in the proceedings.  On the same day, a third affirmation was filed by the applicant in support of the application.

10. On 9 December 2015, the parties were directed by the Court to address the issue of alternative remedy in relation to the subject of the leave application.

11. On 15 December 2015, on the eve of the oral hearing, counsel for the applicant filed written submissions in reply which contained new arguments in relation to the leave application.  I will say more about this later in my decision. 

12. Against this backdrop, it is important to bear in mind that in the meantime the Chief Executive in Council formally appointed the Commission of Inquiry on 13 August 2015 and the Commission of Inquiry had conducted a preliminary hearing on 20 October 2015 and commenced substantive hearings on 2 November 2015. 

Participation in the proceedings

13. The Secretary for Transport and Housing has been named as the 1^st putative respondent in the proceedings in his separate capacity as Chairman of the Housing Authority.  The Secretary has advised that he does not intend to take an active part in these proceedings because the Housing Authority has also been named as the 3^rd putative respondent which will address the matters raised by the proposed judicial review. 

14. The 2^nd and 3^rd putative respondents have indicated that they will participate in the proceedings and are legally represented.  The Director of Water Supplies who is the 2^nd putative respondent is also the Water Authority under the Water Works Ordinance, Cap 102, (WO), and I will refer to the 2^nd putative respondent interchangeably as “the Director” or “the Water Authority”.  I will refer to the 3^rd putative respondent as “the Housing Authority”.

The challenged decisions

15. The applicant has mounted his challenge, as contained in the amended and re-amended Form 86, on the basis of three alleged decisions that he claims have been variously made by the three putative respondents which he has framed as follows:

Decision 1: The decisions to permit, procure and/or employ, and/or continue to permit, procure and/or employ person(s) other than a licensed plumber or a public officer authorised by the Water Authority to construct and/or install “fire service” and/or “inside service” in prefabricated elements in public housing developments.

Decision 2: The decisions to permit and/or approve and/or continue to permit and/or approve the local use and/or installation of “fire service” or “inside service” in prefabricated elements in public housing developments, constructed and/or installed by person(s) other than a licensed plumber or a public officer authorised by the Water Authority.

Decision 3: The decisions to permit and/or approve and/or continue to permit and/or approve the local use and/or installation of “fire service” or “inside service” in prefabricated elements in public housing developments without conducting proper inspections and/or examination thereof including inter alia lead content of water samples and water pipes to ensure the water supplies in public housing developments are safe for consumption.

16. As is apparent, the alleged decisions are concerned with “fire service” and “inside service” having been constructed or installed in “prefabricated elements” used in the construction of public housing developments.  The issue as crystallized in the series of proposed amendments to the Form 86 is whether the plumbing works in prefabricated elements in the construction of public housing developments have been done or will continue to be done by non-licensed plumbers without proper permission or approval to do such works.  It transpired that the only public housing development that used prefabricated elements was in the construction of Kai Ching Estate.

The relief sought by the application

17. The applicant invites the Court to intervene in the regulation of plumbing in public housing estates, specifically in relation to “fire service” and “inside service” under the WO by declaring illegal and quashing the alleged decisions of the putative respondents as regards the installation of plumbing in prefabricated elements found in the single public estate of Kai Ching Estate and prohibiting future decisions allowing such installation in other public housing developments.  

18. I will say more about the relief sought later but I should point out at this stage that the decision to use prefabricated elements with preinstalled plumbing in Kai Ching Estate had been made and implemented, as the development was constructed in 2013.  For reasons that will be apparent, the Housing Authority thereafter decided that prefabricated elements would not be used in any future public housing developments.  Furthermore, the preinstalled plumbing was only done in relation to “inside service” and not in relation to “fire service”.  This means that the only relief that is available if the application proceeds is a declaration in relation to the decision to use prefabricated elements with preinstalled plumbing for the “inside service” in the construction of Kai Ching Estate, if such a decision was made by the three putative respondents, either individually or collectively.  This subject, amongst others, is being investigated by the Commission of Inquiry which is appropriately equipped to ascertain the true factual situation in relation to and given its powers and terms of reference. 

19. I should also point out that in the reply written submissions and oral submissions at the leave hearing, the applicant changed the basis of his challenge.  The argument went along the lines that section 15 of the WO made it mandatory that no “fire service” or “inside service” could be constructed, installed, repaired or removed by other than a licensed plumber or authorized public officer and that the duty conferred on a licensed plumber is to conduct all plumbing works which did not permit any of the works to be performed by an unqualified worker under his supervision.  Therefore the Water Authority acted contrary to section 15 when it issued Circular Letter No 2/90 to all licensed plumbers on 4 September 1990 permitting them to employ workers who were not licensed plumbers to assist them in carrying out the work under their supervision.  What was actually stated in the circular was that under no circumstances should licensed plumbers use their licence to enable non-licensed persons to undertake plumbing work without involving themselves in the supervision of the work, but more will be said about that later.  

20. The applicant submits that the correct interpretation of section 15 and the position taken by the Water Authority in Circular Letter No 2/90 affects not only public housing projects with prefabricated elements from mainland China but all construction building projects in which water pipes are constructed, installed, repaired or removed, either in private or public housing estates, and either in Hong Kong or abroad and this warrants a declaration setting out the true meaning of section 15.  The relief sought has now been changed for an interpretation of the meaning of section 15 by reference to the circular which appears to be a matter under investigation by the Commission of Inquiry.  The difficulty I have with the present application is that it is made in a factual context that is currently being ascertained by the Commission of Inquiry and the basis of the issue now being raised in relation to section 15 is more a factual issue than a question of legal interpretation.

21. In the original, amended and re-amended Form 86 there is no reference to Circular Letter No 2/90. It is a completely new argument without notice to the parties or to the Court, except as contained in the applicant’s reply written submission dated 15 December 2015, a day before the leave hearing. 

22. It gave me the distinct impression that this was an attempt to salvage a judicial review challenge which was misconceived and inappropriate from the moment it began, and if there was any doubt about that then, it would have been made abundantly clear to the applicant and to those advising him once the Commission of Inquiry had got underway.  That is apparent from the changing face of the application and the reliance on material emerging from the Commission of Inquiry to support the changes sought.

23. I will say more about the basis of the application and the changing nature of it, but before I do, I will briefly discuss the relevant statutory provisions.

Relevant statutory provisions

24. The regulation of plumbing works is governed by the WO where under section 2 “inside service” and “fire service” are defined. 

25. “Inside service” means “the pipes and fittings in premises, and any pipes and fittings between the premises and a connection to the main, (other than the pipes and fittings forming part of a fire service) which are used or are intended to be used for the purposes of a supply”.  

26. “Fire service” means “the pipes and fittings in premises, and any pipes and fittings between the premises and a connection to the main, which are used or are intended to be used for a supply solely for the purposes of fire fighting”.

27. Also under section 2, a “licensed plumber” means “a person licensed under this Ordinance to construct, install, maintain, alter, repair or remove fire services or inside services”.

28. Pursuant to section 37(1)(m), the Chief Executive in Council may make regulations for the licensing of plumbers for the purposes of the Ordinance and control of licensed plumbers, which regulation is found in Waterworks Regulations, Cap 102A (the Regulations).

29. Part 5 of the Regulations regulates the licensing of plumbers.  Regulation 33 provides for the qualification and licence of plumbers; Regulation 34 stipulates the necessary requirements to be satisfied for the grant of a plumber’s licence; and Regulation 35 provides for a grade of licence indicating a certain type of work as a plumber. 

30. The “prefabricated elements” referred to by the applicant are precast concrete components used in the construction of buildings; and in the context of this case, they involved mainly “volumetric precast bathroom” and “volumetric precast kitchen” units, which had been precast in a sub-contractor’s factory in mainland China and then transported to the construction site for installation onto the main fabric of the buildings.

31. The applicant’s challenge is directed at the construction or installation of “fire service” and “inside service” in “prefabricated elements” by persons other than licensed plumbers, allegedly in breach of sections 14 and 15. 

32. Section 14 reads:

“(1) Subject to subsection (2), no person shall, except with the permission in writing of the Water Authority, construct, install, alter or remove a fire service or inside service.

(2) The Water Authority may waive the requirement of permission under subsection (1) in the case of alterations to a fire service or inside service which are, in his opinion, of a minor nature.

(3) The construction or installation of a fire service or inside service shall be carried out in such manner as may be prescribed and the nature, size and quality of the pipes and fittings of the fire service or inside service shall be as prescribed.

(4)  Any person who contravenes subsection (1) or (3) shall be guilty of an offence.”

33. Section 15 reads:

“(1) Subject to subsection (2), no fire service or inside service shall be constructed, installed, maintained, altered, repaired or removed by a person other than a licensed plumber or a public officer authorized by the Water Authority.

(2) Alterations or repairs to a fire service or inside service which are, in the opinion of the Water Authority, of a minor nature, or the rewashering of a tap, may be carried out by a person other than a licensed plumber or a public officer authorized by the Water Authority.

(3) Subject to subsection (2), any person who-

(a) contravenes subsection (1); or

(b) employs or permits a person other than a licensed plumber or a public officer authorized by the Water Authority to construct, install, maintain, alter, repair or remove a fire service or inside service,

shall be guilty of an offence.”

34. According to section 35, any person who is guilty of an offence under the Ordinance is liable on summary conviction to a fine at level 4. 

35. The Water Supplies Department has issued a Handbook on Plumbing Installation for Buildings where it provides:

“2.3 General Principles for Installing Plumbing Works

The followings are the general principles for installing plumbing works:-

(a) all water fittings and pipework shall comply with the relevant Waterworks Regulations;

(b) all plumbing works shall be carried out in accordance with the Hong Kong Waterworks Requirements;

(c)  all plumbing works shall be carried out by a licensed plumber.”

36. The Hong Kong Waterworks Standard Requirements For Plumbing Installation Buildings further provides that:

“Section 14(3) of the Waterworks ordinance (Chapter 102) empowers the Water Authority to prescribe the manner of construction or installation and the nature, size and quality of the pipes and fittings of an inside service or fire service for water supplies. All plumbing proposals for inside service and fire service are therefore subject to the approval of the Water Authority.”

Circular letters from the Water Supplies Department

37. The Water Supplies Department has issued Circular Letters from time to time giving instructions or directions in relation to plumbing works, and two have been referred to in the present application.

38. The first is Circular Letter No 2/90 dated 4 September 1990 which I have already mentioned.  It was addressed to all licenced plumbers and has been relied upon by the applicant to argue that the Water Authority had improperly, and contrary to law, permitted licensed plumbers to supervise unqualified plumbers to do plumbing work.  It is necessary to set out in full what was stated in the circular to fully appreciate what direction was given to licensed plumbers.  It reads:

“There has been instance where licence plumbers withdraw from the plumbing work of a project and ask other person to take over the work without notifying the Water Authority.

I like to remind you that you should not hand over the plumbing work for which you have signed Waterworks Form “G” to any other person so as to deem him to transfer the responsibility for supervising the work unless the person to take over is himself a licensed plumber and has obtained the approval of the Water Authority through submission of a fresh Waterworks Form “G”.

So long as you remain to be the licensed plumber of a particular job for which you have signed Waterworks Form “G”, you may employ workers who are not necessarily licensed plumbers to assist you in carrying out the work. But under no circumstances should you use your licence to enable non-licensed persons to undertake plumbing work without involving yourself in the supervision of the work.”

39. The second is Circular Letter No 4/2015 dated 25 August 2015, which was also addressed to all licenced plumbers, is entitled Soldering for Copper Pipe Connections.  It reads:

“For the avoidance of any doubt, all plumbing works using soldering for connecting copper pipes shall have the permission of the Water Authority and shall be carried out by a licensed plumber in accordance with section 14 and 15 of the Waterworks ordinance (Cap 102).”

The background facts

40. The brief facts giving rise to this application can be succinctly stated as follows. 

41. The Housing Authority is a statutory body established pursuant to the provisions of the Housing Ordinance, Cap 283, and has been and still is the housing developer of all public housing estates in Hong Kong.  It is therefore responsible, amongst other things, for ensuring that the development and construction of public housing estates fully comply with all relevant statutory and other regulatory requirements.

42. China State Construction Engineering (Hong Kong) Limited (China State) and others were the main contractors involved in the construction of the affected public housing estates. 

43. It is claimed by the applicant that the Housing Authority permitted and approved the use and installation of “fire service” or “inside service” in prefabricated elements in public housing developments. 

44. Kai Ching Estate is a public rental housing estate which was and is the only public housing development which used prefabricated elements with water pipes and fittings preinstalled within them in a factory in mainland China.  It was part of a pilot run.

45. The water pipes and fittings preinstalled in the prefabricated elements used in the construction of Kai Ching Estate were all for the “inside service”.  As I have already mentioned no pipes or fittings were installed in the prefabricated elements for “fire service”.  For its public housing developments, the Housing Authority has never used or decided to use prefabricated elements with “fire service” preinstalled.

46. The construction of Kai Ching Estate was completed in 2013, and as mentioned the inclusion of prefabricated elements in the construction was a pilot project.  As a result, the Housing Authority decided that for the future projects of public housing developments, water pipes and fittings would not be preinstalled in prefabricated elements, and instead they would all be installed on site.  It appears the reason for this was because many of the preinstalled water pipes and fittings were damaged during transportation or when idling on the site.

47. It is quite apparent that the argument that has been advanced on behalf of the applicant is based on a factual premise which is by no means certain for it is assumed by the applicant that the alleged decisions have been made by the parties.  These and other factual issues are to be determined by the Commission of Inquiry which it is currently exploring the problem in a broader context.  It would therefore not be appropriate for me to discuss the factual issues that have been presented to me in the course of this application in light of the ongoing Commission of Inquiry which is delving into these issues in far greater detail than so far presented to me and which will no doubt after a searching and probing inquiry make findings in relation to them.  That is why this application is misconceived and inappropriate; there is a fact-finding body in the process of determining what the true situation is in relation to the subject raised by the application which is a matter of critical importance for the purpose of the relief sought.

Commission of Inquiry

48. It is necessary therefore to ascertain the nature and structure of the Commission of Inquiry in order to determine whether it provides a far better forum to deal with the issue that has been raised in the present application and whether it provides an alternative remedy to judicial review. 

49. The Chief Executive announced the establishment of a formal Commission of Inquiry to investigate the possible contamination of lead in the water supplied to public housing estates on 17 July 2015 and soon thereafter on 13 August 2015, the Chief Executive in Council established a Commission of Inquiry into Excess Lead in Drinking Water (the Commission of Inquiry). 

50. The Commission of Inquiry Ordinance, Cap 86, empowers the Chief Executive in Council to appoint a Commission “to inquire into the conduct or management of any public body, the conduct of any public officer or into any matter whatsoever which is, in his opinion, of public importance”: section 2(1). 

51. The Chief Executive in Council can specify the subject of the inquiry and may direct when and where the inquiry is to be held, to whom and by what time a report in relation to it is to be rendered: section 3(a). 

52. Under section 11, every inquiry held under the Ordinance is deemed to be a judicial proceeding.  This, amongst others, is an important factor to be taken into account when ascertaining whether an inquiry established under the Ordinance provides an alternative remedy to judicial review.

53. A Commission of Inquiry has wide powers for the purpose of complying with the directions issued to it under section 3 and for conducting the inquiry generally: section 4.

54. A Commission of Inquiry has extensive contempt powers for any acts of disobedience in the exercise of its powers of inquiry against a person or body, and any contempt of a Commission of Inquiry is treated as contempt of the Court of First Instance: sections 8, 9 and 11.  To this end, under section 10 a Commission of Inquiry has the powers of a judge for the purposes of any enforcement of any penalty or action against a person or body and for other like purposes, and in the exercise of such powers, the Chairman may do all necessary acts in the name of the Commission of Inquiry.

55. As already mentioned, in the course of the present application, the parties have referred to evidence and transcripts of proceedings before the Commission of Inquiry. 

56. But it should be noted that evidence given by any person before the Commission is not admissible against him in any civil or criminal proceedings by or against him, except for any charge for perjury or contempt under the Ordinance: section 7.  Also, all evidence before a Commission is absolutely privileged, and no witness giving such evidence is liable to any suit or other civil proceeding in respect of it: section 12(2).  I have not heard argument from the parties on this issue but it is worth noting these provisions so as to ensure that appropriate consideration is given to them and the implications they may have in any future conduct that may be under contemplation.  There is an express provision under section 12(1) not to limit the power of the Court of First Instance to entertain a judicial review in relation to proceedings before a Commission of Inquiry but that is not the situation in the present case. 

57. It is worthwhile noting the Commission of Inquiry’s terms of reference which clearly include the subject of the present application.  The terms require it to:

(a)  ascertain the causes of excess lead found in drinking water in public rental housing developments;

(b)  review and evaluate the adequacy of the present regulatory monitoring system in respect of drinking water in Hong Kong; and

(c)  make recommendations with regard to the safety of drinking water in Hong Kong.

58. The Commission of Inquiry must report to the Chief Executive in Council within 9 months from its appointment, that is, by 13 May 2016.

59. The Commission of Inquiry is chaired by a sitting judge of the Court of First Instance.  It has been holding public hearings since 2 November 2015 and pursuing multiple lines of inquiry within its terms of reference. 

60. Evidence given for the Housing Authority before the Commission of Inquiry on 11 November 2015 specifically addressed the use of prefabricated, which is also referred to as precast elements, in Kai Ching Estate.  The Housing Authority confirmed that the prefabricated elements in Kai Ching Estate were used pursuant to the contractual specifications to its main contractor for the construction project and for the future, the Housing Authority had already “decided not to pre-install sanitary fitments and water pipes in volumetric precast units in subsequent projects”. 

61. The terms and scope of the Commission of Inquiry involved evidence and issues on (1) the construction and installation of the plumbing system in Kai Ching Estate (as one of the “Affected Estates”) involving the use of water pipes and fittings pre-installed on “prefabricated elements”, (2) the use of such plumbing system in Kai Ching Estate, and (3) the inspection or examination done to ensure the safety of the water supplied.  These are essentially the same issues intended to be raised in the intended judicial review. 

62. The Commission of Inquiry has requested that the relevant parties cover in their witness statements: (a) from the Chairman of the Housing Authority, evidence on (i) the relevant standards for drinking water, (ii) the measures in place to ensure compliance with such standards, etc; (b) from the Chief Architect and Chief Building Services Engineer of the Housing Authority, evidence on: (i) roles and responsibilities of various parties in the construction, installation and inspection of the plumbing system, and (ii) steps taken by all relevant parties to ensure that the construction and installation of the plumbing system was carried out by qualified persons; (c) from the main contractors, the sub-contractors and the licensed plumbers, evidence on (i) steps and procedure in the construction and installation of the plumbing system, (ii) role and responsibilities of the relevant parties in the construction, installation, supervision of work and inspection of the plumbing system, (iii) measures taken to ensure water quality and safety, (iv) the persons (and qualification of persons) involved in the construction, installation and inspection of the plumbing system, and steps taken by them to discharge such responsibilities and ensure water safety, (v) steps taken to ensure that the persons involved in the construction, installation and inspection were properly qualified, and (vi) supervision of the construction and installation of the plumbing system. 

63. Clearly, the Commission of Inquiry is examining comprehensively the issue of plumbing works in the construction of public housing developments and the general concern of water quality and safety.

64. This brief description of the powers and functions of a Commission of Inquiry has been given in order to show that it may provide an effective remedy in addressing a matter of public importance and in appropriate circumstances an alternative remedy to judicial review.  The examination of the terms and scope of the current Commission of Inquiry provides strong grounds as to why the present application is inappropriate and premature.  See Re Wong Chi Kin, CACV 80/2014, 26 September 2014, unreported.

The applicant’s challenge

65. It is argued by the applicant that the statutory and administrative framework that has been established to regulate and monitor plumbing works, requires that any “fire service” or “inside service” of any development must be constructed or installed by a licensed plumbers or authorized public officers and that prior written permission must be obtained from the Water Authority before the commencement of any construction or installation.  It is submitted that it is this requirement that has been violated in the three alleged decisions under challenge.

66. The alleged first and second decisions concern “fire service” and/or “inside service” in the “prefabricated elements” having been installed by “person(s) other than a licensed plumber” in public housing developments.  The alleged first decision concerns the permitting, procuring or employing persons other than a licensed plumber to do the installation. The alleged second decision concerns permitting the use and/or installation of the same. 

67. The alleged third decision concerns permitting the use and/or installation of “fire service” and/or “inside service” in the “prefabricated elements” without proper inspection or examination for water lead content to ensure water supplies in public housing developments are safe for consumption.

The application for amendments

68. The applicant seeks the leave of the Court to amend the Form 86 to expand the factual basis and grounds for review and to join the Authority as a respondent to the proceedings.  The respondents oppose the applications. 

69. The applications were heard de bene esse which in a legal context means they were heard on a conditional or provisional basis.

70. The applicant’s explanation for the amendments is that he had initiated these proceedings in person, and now that he has the benefit of legal representation, he wishes to more appropriately frame the basis of the application and also in the meantime more information about the matter has come to light in the public domain because of media attention and the Commission of Inquiry.  The latter point seems to go against the applicant because if he is relying on information from the Commission of Inquiry, as he clearly is, this would suggest that it would be a more appropriate forum to deal with the issue sought to be raised by the present application than by judicial review at this stage. 

71. The Commission of Inquiry is ongoing and has yet to make its findings in relation to the matters under investigation.  It is totally unsatisfactory to mount a judicial review challenge on a factual basis that has yet to be determined by a judicial body established for that task.  The very purpose of the Commission of Inquiry is to receive all relevant evidence within its terms of reference and make factual findings in an endeavour to ascertain all the surrounding facts and circumstances of the matter under inquiry in order to determine what has happened and who was responsible for it with appropriate recommendations for action and reform.

72. The Director in his submissions points out that the applicant is no stranger to judicial review proceedings for he has on several prior occasions unsuccessfully sought to challenge government decisions or actions, and therefore he would be fully aware of what was required to make a challenge of this type. 

73. Generally, when a person represents himself in a legal action, the courts within reasonable bounds will allow him a degree of leeway and assist him in order to ensure the fair and just disposal of the proceedings.  However, in the case of judicial review, given the nature and purpose of the proceedings, it is imperative that a party who launches such a challenge, does so on clear and precise grounds that are properly focused and based. 

74. Normally, a court when deciding whether to allow an amendment would need to be satisfied that no injustice would be caused by the amendment or that any injustice which might otherwise be caused by the amendment would be cured by appropriate remedial measures, such as costs or an adjournment or so on.  A court would usually look at the nature and timing of the application for an amendment, the reasons for and against granting the application, whether it would deny or impede the just resolution of the dispute if it was disallowed, and whether any prejudice would be caused to the other party if it was allowed. 

75. The answer as to whether or not to grant the applications to amend the Form 86 and to join the Housing Authority as a respondent rest principally on whether there is any merit or utility in the proposed judicial review.  If there is little or no merit in the proposed judicial review taking into account the amendments sought, then the application for an amendment would be futile and should be refused.  This then brings me to consider the leave application.

Test for granting leave

76. The test for granting leave to apply for judicial review, subject to any jurisdictional or discretionary bar, is whether the court is satisfied that there is a reasonably arguable case for judicial review having a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676 at §§14 to 17.  A question of discretion concerns such matters as, delay in initiating the judicial review, an alternative remedy to the judicial review, or the judicial review involves an academic or hypothetical issue.

77. There are four main reasons why the putative respondents say leave should be refused.  First, the applicant lacks the necessary standing.  Secondly, the proposed challenge has been overtaken by recent events with the advent of the Commission of Inquiry covering the regulation of plumbing in public housing estates.  Thirdly, the proposed challenge is not reasonably arguable.  Fourthly, the proposed challenge is academic and unnecessary.

Lack of standing

78. A court will not grant leave to apply for judicial review unless it is satisfied that the applicant has a “sufficient interest in the matter to which the application relates”: section 21K(3) of the High Court Ordinance, Cap 4; Order 53, rule 3(7) of the Rules of High Court. 

79. The notion of “sufficient interest” has been variously described as being less restrictive than the expression “person aggrieved” which had been previously used as the test in applications for prerogative orders prior to the introduction of judicial review.  See Cook v Southend Borough Council [1990] 2 QB 1, 8B-C per Woolf LJ.  At §53/14/18 of Hong Kong Civil Procedure, 2016, it is noted that if an applicant has a direct and obvious interest in the subject of an application he will have “a sufficient interest” but the question becomes more difficult when the applicant does not.  In such a situation, one extreme may be the busybody who seeks to interfere in matters that do not concern him at all or a person whose interest is remote or contingent (see IRC v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 642-643 per Lord Diplock), and the other extreme may be a genuinely concerned person or group that is prepared to take up an issue that affects the general public or a section of it in circumstances where it would be difficult or unusual for an individual with a direct and obvious interest to apply for judicial review (see R v H.M. Inspectorate of Pollution, ex p. Greenpeace Ltd [1994] 4 All E.R. 352). 

80. Given the important means that the jurisdiction of judicial review provides the citizen in seeking redress against a public wrong, a liberalised approach has been taken by the courts as to what is required to found a sufficiency of interest for the purposes of standing (see R (Feakins) v Secretary of State for the Environment, Food and Rural Affairs [2003] EWCA Civ 1546 [2004] 1 WLR 1761 at §21 per Dyson LJ (as he then was)).  This has been emphasised in the text of Judicial Review Handbook, Sixth Edition, Michael Fordham QC at §38.2 where the author stated: “The approach to standing is liberal.  Financial interest is sufficient but not necessary.  Public interest considerations favour the testing of the legality of executive action, it being contrary to the public interest for there to be a “lacuna”: where public law wrongs would go unchecked because no person has standing.  It is relevant to consider whether the claimant is a “busybody” and whether there is an obviously better-placed challenger, including one who has chosen not to complain.”  See also AXA General Insurance Ltd v HM Advocate [2011] UKSC 46 [2012] 1 AC 868 at §170 per Lord Reed. 

81. However, it has been stressed that the standard of sufficiency although relaxed, remains as an important criterion that needs to be satisfied to ensure that appropriate and suitable cases for judicial review are brought before the courts by a party that is able to properly present it for adjudication.  See Judicial Review Handbook, Sixth Edition, Michael Fordham QC at §§38.2.9 and 38.2.10.  This point was emphasised by Laws J in R v Secretary of State for Trade and Industry, ex p Greenpeace Ltd [1998] Env LR 415 where he said at 425: “… a public interest plaintiff … has to act as a friend of the court; precisely because he has no rights of his own, his only locus is to assert the public interest.  Litigation of this kind is now an accepted and greatly valued dimension of the judicial review jurisdiction, but it has to be controlled with particular strictness.  It is a field especially open to potential abuse… Strict judicial controls, particularly as regards time, will foster not hinder the development of such litigation in the future…”. 

82. It cannot be overstated how important it is for the protection of rule of law that any excess or misuse of power which affects the public generally should be brought before the courts in order to address the matter and this will necessarily involve taking into account the context in which the matter complained of is raised. 

83. The situation where an applicant makes an application raising an issue of public interest was considered by Lam VP in Re Wong Chi Kin, CACV 80/2014, 26 September 2014, unreported, where he said:

“11. … Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 at p.773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.

12. In R (Feakins) v Secretary of State for Environment [2004] 1 WLR 1761, Dyson LJ (as he then was) said at para 23,

“In my judgment, if a claimant has no sufficient private interest to support a claim to standing, then he should not be accorded standing merely because he raises an issue in which there is, objectively speaking, a public interest.  As Sedley J said in R v Somerset County Council, Ex p Dixon [1997] JPL 1030, when considering the issue of standing, the court had to ensure that the claimant was not prompted by an ill motive, and was not a mere busybody or a trouble-maker.  Thus, if a claimant seeks to challenge a decision in which he has no private law interest, it is difficult to conceive of circumstances in which the court will accord him standing, even where there is a public interest in testing the lawfulness of the decision, if the claimant is acting out of ill-will or for some other improper purpose.  It is an abuse of process to permit a claimant to bring a claim in such circumstances.  If the real reason why a claimant wishes to challenge a decision in which, objectively, there is a public interest is not that he has a genuine concern about the decision, but some other reason, then that is material to the question whether he should be accorded standing.”

…

14. In the more recent judgment of the Supreme Court of the United Kingdom in AXA General Insurance Ltd v HM Advocate [2012] AC 868, Lord Hope DPSC said at para 63,

“… I would not like to risk a definition of what constitutes standing in the public law context.  But I would hold that the words ‘directly affected’ which appear in rule 58.8(2) capture the essence of what is to be looked for.  One must, of course, distinguish between the mere busybody, to whom Lord Fraser of Tullybelton referred in R v Inland Revenue Commissioners, ex p National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, 646, and the interest of the person affected by or having a reasonable concern in the matter to which the application related.  The inclusion of the word ‘directly’ provides the necessary qualification to the word ‘affected’ to enable the court to draw that distinction.  A personal interest need not be shown if the individual is acting in the public interest and can genuinely say that the issue directly affects the section of the public that he seeks to represent.”

15. In the same case, Lord Reed said at para 170,

“For the reasons I have explained, such an approach cannot be based upon the concept of rights, and must instead be based upon the concept of interests. A requirement that the applicant demonstrate an interest in the matter complained of will not however operate satisfactorily if it is applied in the same way in all contexts. In some contexts, it is appropriate to require an applicant for judicial review to demonstrate that he has a particular interest in the matter complained of: the type of interest which is relevant, and therefore required in order to have standing, will depend upon the particular context. In other situations, such as where the excess or misuse of power affects the public generally, insistence upon a particular interest could prevent the matter being brought before the court, and that in turn might disable the court from performing its function to protect the rule of law. I say ‘might’, because the protection of the rule of law does not require that every allegation of unlawful conduct by a public authority must be examined by a court, any more than it requires that every allegation of criminal conduct must be prosecuted. Even in a context of that kind, there must be considerations which lead the court to treat the applicant as having an interest which is sufficient to justify his bringing the application before the court. What is to be regarded as sufficient interest to justify a particular applicant’s bringing a particular application before the court, and thus as conferring standing, depends therefore upon the context, and in particular upon what will best serve the purposes of judicial review in that context.” ”

84. The rationale behind showing sufficient interest is to some extent illustrated by the present application.  The applicant has not had an interest in the subject of the application, in the sense of being involved in or affected by the possible contamination of the water supply in the public housing estates in question, other than a general interest aroused by public concern and it would appear not sufficient to be able to articulate an issue or issues based on relevant and comprehensive information and materials in order to properly invoke the judicial review jurisdiction.  A person representing a general public concern about a public decision or act must do so in its proper context and on a proper basis. 

85. A judicial review may seek to challenge legislation or the interpretation and application of such legislation by a public body.  As explained by Ma CJHC (as the Chief Justice then was) in Leung v Secretary for Justice [2006] HKLRD 211 at §§27 and 28, normally the relief sought by judicial review would require the existence of a “judgment, order, decision or other proceeding”, but there may be circumstances where it is not necessary, such as when legislation is under challenge that has directly affected a would-be applicant.  Here he was commenting on the fact that the Form 86A made provision to set out the “judgment, order, decision or other proceeding” in respect of which relief was sought, even though the statutory provisions, section 21K and Order 53, did not mention the need for such a requirement.  He pointed out that in such a hypothetical or academic situation, the court would look more closely at whether the applicant had sufficient interest to bring the proceedings and would only entertain it if there were exceptional circumstances.  He explained that this is not a question of jurisdiction but of discretion which is fact and case sensitive.

86. The need to show exceptional circumstances is necessary because of the danger in addressing the issue raised by the challenge in the abstract and without a factual context. He said at §28 (7):

“The reason why there is a stress on the need to show exceptional circumstances in such cases is simply that on the whole, the courts perform the function of adjudicating on real disputes and controversies and not fictitious ones. One of the recognised dangers of dealing with hypothetical or academic cases is that the court may be asked to decide important principles without the benefit of a full set of facts. There is also to be considered a practical factor: the administration of justice would hardly be served if the courts were regularly to entertain cases which were not real but only hypothetical.”

87. Ma CJHC recognised the important function that the judicial review jurisdiction performs in giving the ordinary citizen access to justice to right a public wrong, in particular where a constitutional challenge is mounted against legislation.  He stated at §32 that there was no question of the courts assuming jurisdiction in a case involving a hypothetical or academic situation so long as exceptional circumstances exist and the would-be applicant has sufficient interest to bring the proceedings. This he said would provide sufficient protection from any unmeritorious applications. 

88. The applicant purports to rely on two capacities for his standing to bring the proposed judicial review.  The first is as a member of the general public, and the second is as an applicant of public housing. 

89. In relation to the present application, the applicant has sought to bring the proceedings on the basis of three alleged decisions.  He is not directly affected by any of these decisions in either capacity he purports to rely on.  He also has sought to change the basis of his application as seen by the re-amended Form 86 and counsel’s reply written submissions where the challenge has been stated for the first time to be based on what he claims is the Housing Authority’s interpretation of sections 14 and 15 and its application in regulating the work of licensed plumbers.  This seems to be an attempt to change the complexion of the challenge to one involving a broader question of law.  However, I have serious reservations about the argument generally as it is based on interpretations and assumptions that are questionable on the information and materials that have been submitted.

90. There are two questions that need to be answered on the issue of the applicant’s legal capacity to bring the proceedings.  The first involves the question of whether he has a sufficient interest in the subject of the application, namely the three alleged decisions.  The second involves the question of whether there are exceptional circumstances for the court to entertain the application, namely where it is concerned with a hypothetical or academic situation where the issues raised are nevertheless of significant public interest.

91. It is argued by the putative respondents that in either capacity, it is not sufficient to afford the applicant the necessary standing to bring the proposed judicial review.  He resides in private housing and is not a resident at Kai Ching Estate, being the only public housing estate in Hong Kong affected by the matters raised by the proposed judicial review.  His application for public rental housing was clearly made with the present proceedings in mind and shows no more than that he has made an application.  The Housing Authority has decided not to use “prefabricated elements” with water pipes and fittings preinstalled in any future projects and therefore the applicant would not be affected by the matters complained of in the proposed judicial review.  That would be the case even if he was eligible for and received public rental housing. 

92. Whether an applicant has a sufficient interest is a matter of degree, ranging from one end where the applicant is directly affected by the challenged decision and to the other end where he is a “meddlesome busybody”: Chu Woan Chyi Theresa v Director of Immigration, CACV 331/2003, 5 June 2004 at §8; Re Wong Chi Kin, CACV 80/2014, 26 September 2014 at §§11 to 15.

93. The applicant asserts that he is “directly affected” by the alleged decisions because he is “a member of the Hong Kong general public and an applicant of public housing in Hong Kong”.  The putative respondents question how as a general member of the public living in private housing the applicant is directly affected by the state of the plumbing in a particular housing estate.  It is submitted that in reality the applicant is not affected at all.

94. The putative respondents also question the applicant’s reliance on his supposed status as “an applicant of public housing”.  They point out that he only purported to apply for public housing in September of last year which was after excess lead in public housing drinking water was found and the Commission of Inquiry was established, and after he launched the present proceedings on 22 July 2015.

95. They also point out that there is no suggestion that the applicant is eligible for public housing and more fundamentally, there is nothing connecting him with Kai Ching Estate, the only estate involving the subject of prefabricated elements.  As a general comment, they say even assuming that the applicant is eligible and will later live in public housing, he will not be relevantly affected given the Housing Authority’s confirmation that it will not use prefabricated elements in other developments.

96. Mr Abraham Chan is very strident in his criticisms of the means employed by the applicant to show a sufficient interest in order to bring these proceedings which he categorises as an abuse of the judicial review process.  He argues that to permit applicants with purported interests or connections as tenuous or artificial as the applicant’s would be to empty Order 53, rule 3(7) of substance and that there will be no end to the opportunistic challenges impeding the work of the administrative court.

97. As I said, it is important that the citizen is given access to the courts to address any situation where the excess or misuse of power affects the public generally so that the courts can perform its function to protect the rule of law.  But it seems to me that for the courts perform this important function, an application for a proposed judicial review should be done on a clear and proper basis.  As illustrated by this case, a proposed judicial review has been initiated by somebody without a full and proper appreciation of the issues and that is reflected by the scant and changing factual basis and grounds for judicial review.  That is why it is an important requirement to show that the necessary legal criteria have been satisfied in order for a person to bring judicial review proceedings in the subject under the challenge.  A person who satisfies the legal criteria will have a full and proper appreciation of the subject to be able to accurately set out the background facts and articulate appropriately grounds of complaint for judicial review.

Alternative remedy

98. As stated by the applicant, the proposed judicial review was triggered by the “incident relating to excessive lead found in water samples taken from public rental housing estates including, inter alia, Kai Ching Estate”.  He seeks to justify bringing these proceedings by contending that “all Decisions in this case … concern a large population of the general public in Hong Kong, in particular, the health and safety of each individual as public health in general” … “large-scale safety issues, health issues” are involved, and issues about whether “water supplies in public housing developments are safe for consumption” are involved. 

99. It is as a result of the same matters and for the same issues that the Chief Executive in Council established a Commission of Inquiry to investigate and report on the matter.  The inquiry is to take a broad approach in addressing the problem, whereas the present application has a narrow focus concerned with prefabricated elements.

100. It is universally recognised that judicial review is a remedy of last resort.  What is meant by that is that any alternative remedies should be exhausted before embarking upon a judicial review.  An applicant must generally exhaust all available effective alternative remedies before seeking the court’s intervention on this basis.  Until this point, the court will normally decline a remedy in judicial review.  The court will only depart from the general rule in exceptional circumstances.  See Stock Exchange of Hong Kong Ltd v New World Development Co Ltd (2006) 9 HKCFAR 234 at §§114-117 and 130 per Ribeiro PJ; Kwok Ping Sheung Walter v The Law Society of Hong Kong,HCAL 73/2012, unreported, 27 September 2013, at §19 per Au J.

101. In the context of judicial review proceedings, it is of paramount importance that the court only entertains litigation that is clearly necessary, and in order to serve the interests of justice.  See R (Cowl and ors) v Plymouth City Council [2002] 1 WLR 803, at §1 per Lord Woolf CJ; Stock Exchange of Hong Kong Ltd v Onshine Securities Ltd [1994] 1 HKC 319, at 329E to F per Power VP. 

102. Judicial review concerns the exercise of public powers of a final and decisive nature and judicial intervention is warranted to the extent of being directed at a just and practical outcome in public administration.  In Kwok Cheuk Kin v Chief Executive of Hong Kong [2015] 6 HKC 22 an earlier case where the present applicant was refused leave to proceed with a proposed judicial review, Au J explained at §20 that:

“Save in exceptional circumstances, the court would not by way of judicial review entertain challenges of intermediate decisions, which were not final and substantive nature. Moreover, the court would also not decide questions that had become or been rendered academic”.

103. As I have already explained where complaints against public decision-making are essentially academic or hypothetical, the court approaches an application for leave with a higher degree of scrutiny in order to be satisfied that there are exceptional circumstances to warrant leave being granted and that the would-be applicant can bring the proceedings.  This is a matter of discretion which will be exercised favourably if there is good reason in the public interest to grant the leave application.  In appropriate cases this will involve close examination of the relevance and utility of the subject of the application.  See Chit Fai Motors Co Ltd v Commissioner for Transport [2004] 1 HKC 465 at §20 and Leung v Secretary for Justice [2006] 4 HKLRD 213 at §30 both per Ma CJHC (as the Chief Justice then was).

104. Mr Chan argues that even if there is real utility in reviewing the process of construction and inspection of plumbing systems in public housing estates, such a review falls within the parameters of the Commission of Inquiry’s terms of reference.  He stresses that the Commission of Inquiry remains ongoing and is tasked to systemically assess every significant aspect of the construction, installation and inspection of plumbing systems within public housing estates in law and practice. 

105. The applicant states that the Commission of Inquiry’s scope of investigation is limited “amongst other things, to ascertain the causes of excess lead found in drinking water in Hong Kong public rental housing developments”.  However, this will require systematic scrutiny of the Housing Authority’s regulatory monitoring regimes of licensed plumbers and will incorporate the subject of the proposed judicial review.

106. The Commission of Inquiry has already specifically engaged the matter of prefabricated elements in Kai Ching Estate and the Housing Authority has confirmed that it will not use such materials in the future.  This is confirmed from the transcript of proceedings before the Commission of Inquiry on 7, 9 and 10 December 2015.  Section 15 and the regulatory role of the Water Supplies Department are also under the Commission of Inquiry’s active consideration as already highlighted in Schedule 1 of Counsel for the Commission’s written submissions of 20 October 2015.

107. The Commission of Inquiry’s report is due in the first half of 2016 and I am told it is likely to include legal analysis of the applicable statutory framework, including key statutory provisions and assessments as to the adequacy or otherwise of previous or existing administrative / regulatory policies and practices in the context of plumbing works in the public housing estates.  It seems that the report will include recommendations in relation to future best practices.

108. Mr Chan argues that as things stand, there are at least three potential outcomes of the ongoing inquiry.  First, the Commission of Inquiry makes findings and recommendations relevant to the issues raised by the applicant, which are accepted by the putative respondents.  Insofar as such findings or recommendations coincide with the applicant’s assertions in the proposed judicial review, the judicial review is otiose and has no real utility.  Secondly, the Commission of Inquiry makes findings relevant to the issues raised by the applicant, which are not accepted by the putative respondents or other interested parties, in which case the findings may be open to challenge by way of separate judicial review by those parties.  Thirdly, the Commission of Inquiry makes no findings relevant to the issues raised in the applicant’s proposed challenge.  This in itself may potentially give rise to separate judicial review proceedings.

109. The putative respondents submit, with which I agree, that it would be wholly premature for the Court to engage in issues within the ambit of the Commission of Inquiry while it remains in session and its outcome is unknown.  Given the extant of the Commission of Inquiry, there is no justification warranting the Court’s intervention at this stage, if at all.  In all likelihood, the Commission of Inquiry may obviate any need for separate proceedings on the issues raised in the proposed judicial review.  As such, leave to proceed should be refused on the basis that there is an extant alternative forum for ventilating the issues raised and the challenge is otherwise premature.

110. In any event, it would not make practical sense to entertain the challenge given the real risk of overlap and conflict with the legal or factual findings of the Commission of Inquiry, headed by a judge of the Court of First Instance which is armed with extensive powers of inquiry and with terms of reference that are broad and all embracing in order to address more thoroughly and comprehensively the overall problem of water quality and public health and safety. 

111. I am satisfied on this ground alone the application for leave to apply for judicial review should be refused.  Whilst the Commission of Inquiry may not make a declaration as ultimately being sought by this application, it can make findings and recommendations which can provide either an equivalent remedy as sought by the public exposure of the inquiry and the views expressed by the Commission in its final report or steps in the process of achieving an equivalent remedy based on a far more accurate and comprehensive factual setting than that has been submitted in the present application.

112. The Commission of Inquiry provides an alternative effective remedy to the proposed judicial review that will serve the purpose for which it has been purportedly made.

The challenge is not reasonably arguable

113. The three decisions under challenge concern the alleged installation of “fire service” and “inside service” in “prefabricated elements” in public housing developments.  As already mentioned, there is no factual basis to support the challenge in respect of “fire service” because the fire service facility was not constructed or installed in prefabricated elements.  The water pipes and fittings preinstalled in the prefabricated elements were for the “inside service”, but not for the “fire service” in relation to Kai Ching Estate.  As stated, the Housing Authority never used, or decided to use, prefabricated elements with “fire service” preinstalled in the construction of any public housing development.  I will therefore only focus on “inside service” in the discussion to follow, even though the applicant has erroneously framed the alleged decisions under challenge to include “fire service”.  This probably highlights why it is important to show that the applicant has sufficient interest to bring the proceedings.

114. The essence of the applicant’s challenge to the first and second decisions is that the putative respondents were obliged to have the construction or installation of “inside service” in prefabricated elements done by licensed plumbers or authorized public officers and with the prior written permission from the Water Authority before the commencement of any such construction or installation.  The applicant submits that because of these two requirements the three putative respondents cannot legally permit, procure and/or employ anyone other than licensed plumbers or authorized public officers to undertake construction or installation of “inside service” in the prefabricated elements.  The applicant further submits that from the facts as understood by him the “inside service” in the prefabricated elements manufactured in mainland China were not installed or constructed by licensed plumbers or authorized public officers.  He claims that this was confirmed by Mr Lam Tak Sum, the licensed plumber responsible for the construction of Kai Ching Estate.  He appears to be relying on newspaper reports and not on any direct evidence. 

115. In relation to the first two decisions, the applicant’s challenge is that the construction or installation of the “inside service” in the “prefabricated elements” in mainland China by persons other than licensed plumbers was contrary to sections 14 and 15 and therefore the alleged decisions were illegal, and also unreasonable and irrational. It is submitted by the putative respondents that it is the case that the Housing Authority did not itself carry out the construction, or the construction or installation of the “inside service” of Kai Ching Estate.  The construction of Kai Ching Estate was carried out by the main contractor, China State, which in turn sub-contracted the construction to Yau Lee Wah Concrete Precast Products Co Ltd, and the plumbing installation works to Ho Biu Kee Construction Company Limited, which appointed Mr Lam Tak Sum as the licensed plumber for the relevant works. 

116. I am told that the “inside service” constructed or installed in the “prefabricated elements” were not done by the Housing Authority within the meaning of sections 14 and 15. The Building contract awarded by the Housing Authority to China State originally did not provide for the water pipes and fittings to be pre-installed in the “prefabricated elements”.  It was upon China State’s subsequent proposal that the Housing Authority approved that the water pipes and fittings may be pre-installed as a pilot run.  Under the contract, China State were required to ensure that when carrying out the works, the laws in force in Hong Kong, including the WO had to be complied with. 

117. It is submitted on behalf of the Housing Authority that it required that the installation of the “inside service” be carried out by a licensed plumber and in compliance with the WO.  It is argued that in those circumstances the Authority complied with section 15(3)(b) in that it did not employ or permit a person other than a licensed plumber to construct, install the “inside service” and thus, it follows it cannot be said that the Housing Authority acted illegally, irrationally, or unreasonably. 

118. It is submitted in the alternative that the Water Authority and the WO did not require all works for construction or installation of “inside service” to be carried out personally by a licensed plumber.  The Water Authority in Circular Letters published before and after the construction of Kai Ching Estate, has made it clear that the licensed plumber is charged with the overall responsibility for the relevant works, but he can engage workers to assist him in carrying out the installation works if necessary.  It is argued that the arrangement was in compliance with the requirement of the Water Authority and there was no illegality or any irrationality or unreasonableness as a consequence.  The applicant has sought to change his initial challenge to now argue that all plumbing works are required to be done by a licensed plumber and no works can be carried out by a non-licensed plumber under the supervision of a licensed plumber.

119. In relation to the third decision, the putative respondents submit that the matter under challenge has been rendered academic for two reasons.  First, because it only applied to Kai Ching Estate which was a pilot run and was decided not to carry out those installation works in any future public housing development.  Secondly, because the Housing Authority has since revised its standard specifications for building contracts for the construction of public housing developments by requiring water sample tests to be carried out in compliance with the relevant circulars. 

120. The basis for the challenge under the alleged third decision comes from newspaper reports that according to the former Chairman of the Hong Kong Licensed Plumbers Association, “fire service” and/or “inside service” in prefabricated elements constructed or installed abroad cannot be properly inspected and examined without dismantling or breaking open the concrete of the prefabricated elements.  He is reported as saying that the prefabricated elements with preinstalled “fire service” or “inside service” manufactured in mainland China have been installed without proper inspections and/or examination to ensure the water supplies in public housing developments are safe for consumption.  This submission is based on third hand information and presupposes that there have been other prefabricated elements installed in public housing developments. This is specifically disavowed by the putative respondents who have indicated that prefabricated elements have only been used in Kai Ching Estate. 

121. This brings me to the critical issue in this application and that is the facts and circumstances on which it is based.  A lot of the information that is being relied upon by the applicant is either based on snippets or selective pieces from newspaper articles or other sources, or from the Commission of Inquiry. 

122. The Commission of Inquiry has been specifically established to receive evidence and make findings as to the true and full extent of the problem.  It would not be appropriate for this Court to delve into the matter on the loose and unclear factual basis that has been presented by the applicant even though there is a serious issue to be addressed that is of paramount public interest. 

123. It is for this principal reason, that is, the unclear factual situation in support of the application, that the proposed judicial review is not reasonably arguable.  I have also expressed my doubts about the various arguments that had been mounted by the applicant in submission.

The challenge is academic and unnecessary

124. It is common ground that the prefabricated elements within Kai Ching Estate are already installed and it would appear that the Commission of Inquiry is currently determining the true situation in relation to any contamination of the water supply to the estate as a result of the “inside service” of the prefabricated elements.

125. In terms of practical relief the applicant seeks only that in the future, that is, for future projects the putative respondents are prohibited from decisions resulting in similar installations.  Yet, as earlier noted, the Housing Authority has publicly affirmed that in the future it will not adopt prefabricated elements for public estate plumbing.  It follows that the proposed challenge in this respect is academic, but will nevertheless be addressed more comprehensively by the Commission of Inquiry after it has completed its examination of all the evidence it has gathered.

126. In the circumstances of the case were a Commission of Inquiry is being undertaken which includes the subject of the application, there are no exceptional circumstances to warrant the intervention of the court.

Application for an adjournment

127. At the conclusion of oral submissions, Mr Valentine Yim, who appeared with Mr Chan Hei Chin, for the applicant, applied for the leave application to be adjourned to a period of 42 days after the Commission of Inquiry handed down its report.  This struck me as an unsatisfactory way of dealing with the leave application because it appeared to me that it was prompted by the apparent realisation that the leave application was not justified.  In particular, the Commission of Inquiry provides an alternative remedy to the subject of the application in that it is addressing specifically the use of prefabricated elements with preinstalled plumbing at Kai Ching Estate. 

128. The application for an adjournment is refused.

Conclusion 

129. For the foregoing reasons, the application for leave to apply for judicial review is refused.

130. As to the question of costs, the parties are to file any written submissions on the matter within 7 days from the date hereof and any reply within 3 days thereafter.