WU YUK WAH BEN v. THE DIRECTOR OF HONG KONG OBSERVATORY

CACV 208/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2012

(ON APPEAL FROM HCAL NO. 114 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT AND
JUDGMENT ON COSTS

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Hon Kwan JA:

1.  I agree with the Reasons for Judgment and Judgment on Costs of Barma JA.

Hon Fok JA:

2.  I also agree with the Reasons for Judgment of Barma JA and, for the reasons he has given, with the order as to costs proposed in paragraph 14 below.

Hon Barma JA:

3.  This was an appeal by Wu Yuk Wah Ben (“the Applicant”) against the judgment of Lam JA (sitting as an additional judge of the Court of First Instance) given on 5 September 2012 refusing to grant leave to the Applicant to apply for judicial review of what was described as a decision of the Director of the Hong Kong Observatory (“the Director” and “HKO” respectively) made on 13 June 2012 “not to entertain the Tai Lam Chung villagers’ concerns about Fung Shui after the Director’s application to develop the Terminal Doppler Weather Radar at a knoll north of Tuen Mun Road near Brothers Point, Tai Lam Chung, Tuen Mun has been approved”.  At the conclusion of the hearing, we dismissed the appeal, indicating that we would give our reasons for doing so at a later date.  So far as costs of the appeal were concerned, having heard submissions from counsel for both parties, we reserved our decision on the costs order to be made.  These are our reasons for dismissing the appeal and our judgment on costs.

4.  The background to the application for judicial review can be summarised as follows:-

(1)   The function of a Terminal Doppler Weather Radar (“TDWR”) is to detect hazardous windshear and to provide alerts where such windshear is detected, in order to ensure aviation safety.  The present TDWR serving this function in respect of Hong Kong International Airport (“HKIA”) was installed in 1996, and has been in use since the opening of the Airport in 1998.  It will approach the end of its functional life in 2013 (i.e. this year).  A replacement TDWR is therefore needed.

(2)   In order to ensure continuous provision of windshear alerts to aircraft arriving at and departing from HKIA, it is necessary for a new TDWR to be fully commissioned and operational by the end of 2014.  There will be a period during which both the existing and the new TDWR will operate in tandem, after which the new TDWR will be the primary facility for providing windshear alerts.

(3)   The TDWR must be constructed on a site that meets stringent technical requirements, in order to be able to provide the most comprehensive alert system achievable.

(4)   Between 2006 and 2007, HKO conducted an extensive site search in order to identify possible locations at which to construct the new TDWR.  A total of 21 possible sites were considered, and the opinion of two internationally known consultants was sought.  The outcome was that the knoll north of Tuen Mun Road near Brothers Point, Tai Lam Chung, Tuen Mun (“the Site”) was the only viable site, when all technical and other relevant factors (including such matters as environmental impact, difficulty of construction, cost of site formation and construction, the time required for completion of the project) were taken into account.

(5)   On 12 September 2008, HKO applied to the Town Planning Board (“the Board”) for permission to construct the new TDWR on the Site.  Prior to making the application, villagers (“the Villagers”) living in Tai Lam Chung Tsuen (“the Village”), which is located near the Site, had been consulted about the application, with no adverse response.  However, following the application and during the statutory publication periods, some 13 opposing comments were received, including several from the Villagers.  The Villagers’ opposition was based on concerns as to the adverse impact that the presence of the new TDWR on the Site would have on the Fung Shui of the Village, and on fears that the radiation that might be emitted in the course of operating the TDWR could have deleterious effects on the health of local residents.  The latter concern has since been allayed, but the former apparently has not, leading to the bringing of the application for judicial review by the Applicant, who is one of the Villagers.

(6)   Having considered the opposing comments, the Board gave permission on 23 January 2009 for the construction of the TDWR on the Site.  In giving permission, the Board advised HKO to liaise with the Villagers with a view to addressing their concerns on the Fung Shui issue.  It is not in dispute that this suggestion was only advisory in nature, and did not affect the permission granted.  No appeal was lodged against the grant of such permission, nor was any challenge made to it by way of judicial review.

(7)   Thereafter, both HKO and the Commerce and Economic Development Bureau (“CEDB”) took various steps to communicate with the Villagers (through correspondence with their legal and other representatives, site meetings and meetings of the Tuen Mun District Council), in order to understand their concerns, to explain why the TDWR had to be built on the Site, and to seek ways of ameliorating the Villagers’ concerns.  Initially, HKO was prepared to consider suggestions for alternative sites for the TDWR, and in fact considered four alternative sites put forward by the Villagers, each of which was found to be unsuitable, for reasons which were explained to the Villagers.

(8)   By mid-2010, it had become apparent to HKO and CEDB that there were no viable alternative sites for the TDWR.  However, they obtained approval from the Board of a revised proposal for the construction of the TDWR on the Site, which involved moving the TDWR station a distance of 17 metres, reducing its height by 7 meters and planting trees with a height of 8-9 metres to shield the TDWR from the view of the Village and other neighbouring villages. They also agreed to consider the making of ex gratia payments of what are known as “tun fu” fees, to enable customary rituals for peace and harmony to be performed at the Site before the commencement of construction work, to start construction on an auspicious day, and to consider other suggestions that the Villagers might make that might ameliorate their Fung Shui concerns.

(9)   On 24 August 2010, the Secretary for Commerce and Economic Development (“the Secretary”) wrote to a village representative, stating that:-

(a)  The Site was the only technically viable site out of all the locations that had been considered, including those suggested by the Villagers after the grant of permission by the Board.

(b)  The Government would not fund a Fung Shui study, but would consider paying “tun fu” fees.

(c)  Discussions would continue as to whether there were any other measures, including amendment of the detailed design of the TDWR station, to alleviate the Villagers’ concerns as far as possible.

(10) In my view, it is clear (not least from the reiteration of the fact that the Site was the only viable site out of the many that had previously been examined) that the “other measures” referred to did not extend to consideration of relocating the TDWR to some other location instead of the Site.

(11) Thereafter, there were a number of further occasions on which the HKO or CEBD communicated with the Villagers’ representatives (these being: letters to their solicitors from the Secretary dated 21 September 2010 and 5 November 2010; letters from the Director to such solicitors dated 17 January 2011, 25 March 2011 and 26 May 2011; letters from the Secretary to Mr Lau Wong Fat (who had taken up the matter on behalf of the Villagers) dated 22 September 2010 and 6 May 2011; letters from the Director to Village Representatives dated 17 November 2011 and 22 June 2012; a letter from the Director to the Tuen Mun District Council Secretariat dated 17 November 2011; letters from the Director to the Chairman of the Tuen Mun Rural Committee dated 22 June 2012 and 10 August 2012; meetings held on 16 April 2012, 7 June 2012 and 4 July 2012 with various parties including Village Representatives, representatives of the Tuen Mun Rural Committee and representatives of the Tuen Mun District Council).  In these communications, the fact that the Site was the only viable site was reiterated, it was explained that another site which had previously been rejected, but was nonetheless repeatedly put forward as an alternative, was not suitable, the design modifications that had been made were described, and it was stated that a funding request for construction at the Site had been made, and that construction would commence shortly, with information being given as to the construction timetable.  The offer to pay “tun fu” fees was repeated on a number of occasions, as was the request for suggestions as to any other ameliorative measures that might be considered worthwhile by the Villagers.

(12) At the meeting on 7 June 2012, a Fung Shui report was submitted on behalf of the Villagers to the Director. This was followed by a supplementary report sent to the Director under cover of a letter from the Villagers’ solicitors dated 13 June 2012.  The effect of these reports was to state that there were no ameliorative Fung Shui measures that could be undertaken to avert the adverse impact of the building of the TDWR station on the Fung Shui of the Village.

(13) Construction work commenced at the Site on 5 July 2012, funding having been approved by the Finance Committee of the Legislative Council on 6 January 2012.

5.  Against this background, Lam JA held that:-

(1)   The Director had made it “crystal clear” by (at the latest) 24 August 2010, that the Site had been chosen as the location for the new TDWR (see paragraph 4 of his Judgment);

(2)   This was the relevant decision for the purpose of considering the application for leave to apply for judicial review (paragraphs 4 and 5 of his Judgment);

(3)   The application was seriously out of time and there was no good reason for extending time (paragraph 9 of his Judgment);

(4)   There were no merits to the application, as he could not find any evidential basis for suggesting that the Director had (after August 2010) given the Villagers an impression that the choice of site was still open for discussion, or made any representation to this effect (paragraphs 6 and 7 of his Judgment).

6.  Before us, Mr Cooney SC (appearing for the Applicant) contended that the Judge had erred in respect of each of these matters.  In my view, these contentions are not well-founded, and Lam JA was clearly right to come to the conclusions set out above.

7.  There can be no doubt that the letter of 24 August 2010, which I have summarised at paragraph 4(9) above, explicitly conveyed that the Site was the only viable site for the construction of the TDWR.  Nothing in the letter could give rise to any reasonable understanding that the question of the choice of site was any longer open for discussion or further consideration. The ameliorative measures which had been taken (and were described in the letter) were premised on the proposition that the TDWR would be built on the Site.  The invitation to suggest further ameliorative measures was equally clearly to be understood as being an invitation to suggest further steps that might lessen the adverse Fung Shui effects of building the TDWR station on the Site.  Thus, unless there was anything in the subsequent correspondence or other communications with the Villagers’ various representatives that could give rise to a legitimate expectation that the choice of site was still open for reconsideration, this was the decision that had to be challenged for the purposes of any application for judicial review.

8.  With this in mind, Mr Cooney was pressed by the members of this court to identify, in the correspondence or records of meetings that were in evidence, any representation or statement that might have given rise to a reasonable belief that the choice of site was still a potentially open question.  Unsurprisingly (having regard to the terms of such correspondence and records), he was unable to do so.  It is, to my mind, clear beyond peradventure that throughout the period from August 2010 to August 2012, the Director was consistently making it clear that the Site was the only location that was suitable for the construction of the TDWR.  This was done both in terms, and by advising the Villagers that funding would be sought for construction at the Site, and in due course by informing them of the imminent commencement of construction.  It was not necessary, as Mr Cooney suggested in his written submissions, for there to be a statement in so many words that the question of the site was no longer open to discussion – this was obvious from every communication between the Director or the Secretary and the Villagers and their representatives.  To suggest otherwise would be to display what can only be described as wilful obtuseness.

9.  Mr Cooney argued that the two Fung Shui reports submitted on 7 and 13 June 2012 constituted new material that the Director was obliged to consider, and that his failure to do so was a decision on his part which was capable of being judicially reviewed.  They were not – having regard to the fact that they simply asserted the impossibility of ameliorating the adverse Fung Shui impact of building the TDWR on the Site, when it was (or should have been) clear that the choice of location was not open for discussion, they contained nothing of relevance that called for consideration by the Director.

10.  I am therefore in no doubt that Lam JA was right to hold that the relevant decision was that communicated in the letter of 24 August 2010, and that the application before him was seriously out of time.  It will also be apparent from the foregoing that the suggestion that the Director had said or done something to give rise to an expectation that the choice of site was still open for reconsideration was wholly unfounded.  The application for leave to bring judicial review proceedings was therefore entirely unmeritorious, with the consequence that no extension of time should have been ordered.

11.  For the foregoing reasons, the appeal was dismissed.

12.  So far as costs are concerned, Mr Cooney did not oppose an order that his client should bear the Director’s costs of this appeal.  However, in the light of the fact that the appeal appeared to us to be completely lacking in merit, we invited submissions on the question of whether or not such costs should be taxed and paid on the indemnity basis.

13.  Mr Cooney submitted that it would not be appropriate to order costs on the indemnity basis, because the matter was one that was of great importance to the Villagers, who were not concerned about money (as they did not seek compensation or payment), but about the adverse impact to the Fung Shui of the Village.  He also suggested that as there was a right of appeal, this fact should carry greater weight.

14.  I do not agree.  The fact is that the Applicant has had the opportunity to ventilate his (and the Villagers’) arguments in the court below.  His application was found to have no merit.  It will be clear from the reasons I have given for dismissing the appeal that the appeal, too, was wholly unmeritorious, and should never have been brought.  The fact that a party has a right to appeal is not a reason for exercising it in a hopeless case.  To do so is wasteful both of the court’s time, and of the time and resources of the respondent who is forced to resist the appeal.  In the circumstances, I am satisfied that the appropriate order as to costs would be for the Applicant to pay the Director’s costs of the appeal, to be taxed on the indemnity basis if not agreed, with a certificate for two counsel.