LAM KWOK LUNG v. LANDS DEPARTMENT AND ANOTHER

HCAL 1414/2024

[2025] HKCFI 207

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1414 OF 2024

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D E C I S I O N

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A. Introduction

1.  By his Form 86 dated 23 August 2024, supported by an affirmation of the same date, the Applicant seeks leave to apply judicial review against the collective decision of the Lands Department (“LandsD”)  and the Chief Executive in Council (“CEIC”)  (collectively “Putative Respondents”)  to resume certain Tso land located in the area of Hung Shui Kiu and Ha Tsuen (“Decision”).

2.  I gave directions for an Initial Response (against a deadline later extended), and stated that after the Initial Response is filed and served, I would then decide how to deal further with the matter.  

3.  Having considered the matter, I am satisfied that it is appropriate to deal with this matter on the papers.  This is my decision.  

B.  Relevant Background

B.1  The Two-Fold Decision

4.  In September 2023, the Hong Kong Government published Government Notice No. 5263, which specified amongst other things the “Second Phase Development of Hung Shui/Ha Tsuen New Development Area” (“Project”), and which proposed the resumption of land in these areas under section 23 of the Lands Resumption Ordinance Cap. 124 (“LRO”). 

5.  On 30 May 2024, the LandsD published Government Notice No. 3102 (“GN 3102”), which specified the particular pieces of land to be resumed.  It gave notice that the CEIC decided that the land was required for a public purpose (“CEIC Decision”)  and that the Deputy Director/Specialist of the LandsD ordered the land to be resumed and to revert back to the government upon the expiration of three months after the date of GN 3102’s gazetting (“Resumption Order”).

6.  The impugned Decision comprises both the CEIC Decision and the Resumption Order.  

B.2  The Tso Lots

7.  The lots (“Tso Lots”)  relevant to the Applicant’s challenge are registered in the name of Lam Hung Sou Tso and Lam Lok Yee Tso (together, “Tsos”). 

8.  The Applicant contends that, since he is a New Territories Indigenous Inhabitant and that he is a member of both Tsos, he is directly affected by the Decision. 

B.3  Systematic Challenge against the LRO

9.  The Applicant also mounts a systematic challenge against the LRO itself.  

10.  By that challenge, said to be in pursuit of society’s interest and benefit, the Applicant seeks to review and examine the LRO against the Government’s power to resume land and the risks this brings to private property rights over land in Hong Kong. 

C.  The Applicant’s Locus Standi and Grounds for Review

11.  This application contains five grounds of challenge.  They are that: (1) the Decision was not prescribed by law; (2) the Putative Respondents failed to consider viable alternatives to resumption; (3) the Decision contravened Articles 35 and 40 of the Basic Law (“BL 35” and (“BL 40”); (4) the Decision was made for an improper purpose; and (5) relevant considerations were not taken into account when reaching the Decision. 

12.  The Applicant has not adduced any evidence to prove his interest in the Tsos, aside from a bare assertion that he is an indigenous inhabitant and a member of these Tsos.  For that reason, the Applicant has apparently failed to establish the necessary locus or standing to bring his challenge.  

13.  But in any event, I would nonetheless dismiss the application as each ground lacks any merit.  I can deal with each ground relatively briefly.  

D.  Ground 1: Not Prescribed by Law

14.  Sections 2(2)(g)  and 16AA of the LRO are challenged. 

15.  In gist, section 2(2)(g)  offers a definition for what “resumption of any land for a public purpose” means, namely any land designated as such by the CEIC.  Further, in respect of land designated for resumption for a public purpose, section 16AA allows the government, to use or allow its use for any purpose over a period of time before that land is used for that public purpose.  

16.  The clear legislative purpose of the LRO is to “facilitate the resumption of Government lands required for public purposes”.  The Applicant says that, given this intention, then (1) section 2(2)(g)  gives the CEIC unfettered discretion to designate any land for a public purpose, and (2) there is an unfettered discretion to allow that land to be used for a non-public purpose under section 16AA.  Further, he says that these provisions permit restrictions that are not prescribed by law. 

17.  I am unable to accept these submissions because they go against established authorities, which the Applicant does not address.

18.  Even before 1997 (when the name of the ordinance was the Crown Lands Resumption Ordinance), the LRO has always envisioned the CEIC having the broadest possible powers when deciding to resume land for a public interest or purpose: see Re KOY Investment Co Ltd (unreported, HCMP 1472/1982, 17 December 1982)  at pp16, and 20-21.  This discretion nonetheless must of course be made in good faith and for the purposes of the LRO, and must not be arbitrary or capricious.  These are requirements of fairness, but fairness should not be strained to such an extent as to frustrate the object of the statute: see Fok Lai Ying v Governor in Council [1997] HKLRD 111 at pp115H-I and 115J-116B. 

19.  It does not matter that the LRO does not provide the precise manner in which the CEIC must exercise the discretion.  Just because a statute confers broad powers does not of itself mean that it is not prescribed by law; many statutes are silent as to how the relevant decision can be lawfully reached.  This Court is capable of scrutinising whether an exercise of power fell within the discretionary ambit and whether that exercise was fair under public law: see Chee Fei Ming v Director of Food and Environment Hygiene [2020] 1 HKLRD 373, §§34-36 and 41.  If the Court concludes that the exercise of power did fall within that discretionary ambit, and that the exercise was fair as a matter of public law, that would meet the ‘prescribed by law’ requirement. 

20.  Section 2(2)(g)  of the LRO provides:

(2) In this Ordinance, a reference to resumption of any land for a public purpose includes […] resumption of any land for any purpose (of whatever description, and whether or not of the same kind as a purpose described in another paragraph of this subsection)  decided by the Chief Executive in Council to be a public purpose. 

21.  In Chan Lau Fong v Attorney General [1992] 2 HKLR 203 at p212, the Court of Appeal held that section 2(2)(g)  “confers a wide discretion upon the [CEIC] to decide what is a public purpose for the purposes of the [LRO].”  Also affirmed were the observations of Deputy Judge Robert Kotewall QC at first instance, where he said that “what is a public purpose does not depend on the ipse dixit of the [CEIC], but is a matter of statutory interpretation of the [LRO] and the application of the statute as properly construed to the facts”.  

22.  Other provisions of the LRO support this view.  One is Section 16AA.  Another is section 16, which permits the demise or grant of resumed land on such terms, conditions, and price as the Chief Executive may determine, and either by public auction or private contract.  Further, section 19 allows for any notice of resumption merely to state that it is for a public purpose without the need of giving particulars, thereafter amounting to conclusive evidence of the requirement.  

23.  It might be added that given the unique position of the CEIC in matters of public policy, it is of course much better placed than the Court to determine where the public interest lies in the context of land resumption.  As long as the CEIC exercises its discretion under section 2(2)(g)  in good faith, non-arbitrarily, not capriciously, and for a purpose prescribed under the LRO against the factual background of a given case, then there is nothing wrong behind such an exercise of power.  

24.  The Applicant has failed to demonstrate why the Decision arguably fell afoul of these criteria.  Further, it is insufficient merely to argue that the discretion is unfettered in the abstract.  

25.  Entitled “Use of land resumed”, section 16AA provides:

If any land has been resumed pursuant to an authorization of the resumption of the land for a public purpose made under section 3(1) or (2), the Government may use, or allow the use of, the land for any other purpose for a certain period of time before the land is used for that public purpose. 

26.  The Applicant asserts: (1) section 16AA allows resumed land to be used for any purpose other than public ones; (2) the section’s reference to a period of time is indeterminate and thus uncertain.  The Applicant says that amounts to an unfettered discretion.  I disagree, for the reasons evident from what I have canvassed above. 

27.  Be that as it may, there are in fact detailed guidelines published by the Government in respect of Section 16AA, called the ‘Administrative Guidelines on the Use of Resumed or Acquired Land for Other Purpose(s)  on a Temporary Bases’, dated 1 September 2023.  It suffices for present purposes to refer to §§3-9.  These guidelines stipulate that when resumed land is temporarily used for a non-public but gainful purpose, it is still the overriding principle that this use will not affect the implementation of the public purpose in due course.  The non-public use must not hinder the public purpose, and must be jointly supported by the policy bureau or department responsible to carry out the public purpose and the bureau or department temporarily using the land.  Prior to a grant of non-public use, public consultation must be conducted by the temporary user.  The non-public use shall cease once the public purpose is ready for implementation, and in any event must cease after three years and not more than two years for each subsequent extension.  

28.  These guidelines are comprehensive and they delineate the ambit of – or, it can be said, provide a reasonable degree of certainty as to the operation of – the CEIC’s exercise of discretion under Section 16AA.  This is an additional reason why the discretion is not unfettered.  

29.  The Applicant’s case against section 16AA is untenable.  

30.  Throughout the Applicant’s submissions in respect of sections 2(2)(g)  and 16AA, he seeks to argue that both fail to satisfy the principle that restrictions to rights guaranteed by the Basic Law must be prescribed by law (see BL 39). The right in question is BL 40, which protects the traditional rights of New Territories indigenous inhabitants (see Section F below). 

31.  However, these submissions are premised on the CEIC’s discretion under both provisions being unfettered so as to fall afoul of the ‘prescribed by law’ requiremment.  They are not, so this argument falls away.  

32.  Ground 1 is not reasonably arguable. 

E.  Ground 2: Viable Alternative

33.  This ground characterises the Decision as Wednesbury unreasonable since the LandsD and CEIC failed to consider alternatives to resuming the Tso Lots, such as purchase of the lots by voluntary private contract.  In support, the Applicant cites Society for Protection of the Harbour Ltd v Town Planning Board [2003] 2 HKLRD 787, and in particular, the “overriding public need test” applied in that case and by the Court of Final Appeal (“CFA”)  in Town Planning Board v Society for Protection of the Harbour Ltd (2004)  7 HKCFAR 1.  This test involves looking at whether there are reasonable alternatives.  If there are, then it goes against there being an overriding public need.  

34.  In short, the Applicant suggests that, had alternatives been considered, the Putative Respondents would have not have reached their Decision and instead would have voluntarily purchased the Tso Lots by private contract.  I disagree. 

35.  In the Protection of the Harbour cases, the applicability of the test depended upon the legislative intention of the Protection of the Harbour Ordinance Cap 531, and in particular section 3. The CFA explained at §44 that there is a need for the test because that provision conferred a unique legal status to Victoria Harbour, and recognised a strong public need to protect and preserve it. 

36.  The Applicant does not explain why in this case the Tso Lots share the same or any unique legal status.  The Protection of the Harbour decisions are distinguishable from the present case, and hence inapplicable.  

37.  Even under the statutory framework of the LRO, there is no indication that the CEIC is required contractually to acquire land designated for resumption.  Section 4A of the LRO provides that resumed land may be purchased by agreement by the Director of Lands.  On the other hand, under section 6(1)  of the LRO, the CEIC is required to offer compensation either by the Director of Lands making an offer of compensation or requiring the former owner of the land to submit a claim for compensation.  

38.  The key point is that the Government is only required to compensate owners of resumed land.  To otherwise acquire such land by contract is entirely discretionary.  In this case, it was perfectly open to the Government not to consider alternatives to resumption, and it is unarguable to suggest otherwise. 

39.  Ground 2 is not reasonably arguable.  

F.  Ground 3: BL 35 and 40

40.  BL 35 enshrines the right of Hong Kong residents to legal advice, access to courts, choice of lawyers, protection of their rights, representation in the courts, and judicial remedies.  BL 40 protects the traditional rights of indigenous inhabitants of the New Territories.  I agree with Mr Chik that neither article is engaged.  

41.  In respect of BL 35, the Applicant argues (as I understand it)  that minor members of Tso land would have their rights under the article restricted by land resumption.  It is unclear why that is so, and the Applicant does not explain how this may arise.  Furthermore, being a minor is not a bar against bringing an action for judicial review, for there are avenues allowing for such actions, such as Order 80 of the Rules of the High Court, which permits next friends of minors to bring such actions on their behalf.  

42.  Regardless, this point is moot since the Applicant is not a minor.  In a similar vein, if he is taken to represent potential minor members of the Tsos, then his bringing this application is proof that their rights under BL 35 are not restricted. 

43.  As for BL 40, the Applicant merely says that resumption would ipso facto affect his traditional indigenous rights, and as such fails to satisfy the proportionality test.  

44.  This ignores the threshold of BL 40.  The CFA in Kwok Cheuk Kin v Director Lands (No.2) (2021)  24 HKCFAR 349 at §36 observed that the rights protected by BL 40 must be unique to indigenous inhabitants and not common to the generality of residents.  The Applicant does not point to any unique right vested in him under BL 40 that is engaged by the Decision besides his proprietary rights in the Tso Lots, which are apparently no different from other residents’ proprietary rights. 

45.  I also accept Mr Chik’s submission that there is no right to hold Tso land free from resumption under the LRO.  Taking a contextual view of the Basic Law, BL 40 must be read with Article 105, which inter alia requires the Government to protect residents’ rights to compensation for lawful deprivation of their property.  The LRO provides that vehicle for lawful deprivation in the context of resumption, and the LRO requires (as a minimum)  compensation for resumed land.  

46.  In light of these reasons, the Hysan proportionality test does not even begin to arise.  

47.  Ground 3 is not reasonably arguable.  

G.  Ground 4: Improper Purposes

48.  The Applicant advances the same running theme as under Ground 1: that the potential for resumed land to be used for non-public purposes goes against the LRO’s statutory intentions.  To him, the dominant purpose must be public, and he seems to suggest that this means having no private use of the resumed land whatsoever, even if it is collateral to that public purpose.  Otherwise, it falls outside the LRO’s ambit.  This argument has no merit.  

49.  As early as Chan Lau Fong at first instance (cited above), Deputy Judge Kotewall QC at p17 observed that even if parts of the resumed land are used for a non-public purpose, as long as they are necessary to the overall project, there is no objection to characterise such use as public.  

50.  The Applicant has not explained why the Project’s public objectives, which include using resumed land listed in GN 3102 for industrial or private purposes, are ultimately non-essential to the public purposes for which the land was resumed.  He only refers to their nature being ‘private’ to back up this ground.  This is not enough to establish that such use was improper.  First, a private purposes not necessarily a different purpose or collateral advantage (as alleged by the Applicant).  Secondly, the Project is wide ranging and designed to develop parts of the New Territories into a modern and comprehensive area, which spans housing, employment, public services, public transport, and the environment amongst other things.  Clearly the Project, in pursuit of its public purposes, may require or involve the implementation of private uses in certain areas of the resumed land.  

51.  Again, what constitutes a public purpose. Within the broad discretion of the Government under the statutory regime.  There is no basis for any suggestion that the CEIC and the LandsD arrived at the Decision without proper purposes in mind. 

52.  Ground 4 is not reasonably arguable.  

H.  Ground 5: Relevant Considerations

53.  This ground is no different from Grounds 1, 3 and 4.  It repeats the Applicant’s arguments that the LRO confers unfettered discretion on the CEIC, and that the Putative Respondents failed to consider his rights under BL 35 and 40.  

54.  For my reasons canvassed above, Ground 5 is not reasonably arguable.  

I.  Result

55.  The Applicant has failed to show that he has standing, but in any event he has failed to identify any intended public law grounds of review which are reasonably arguable with a reasonable prospect of success. 

56.  The Applicant’s application for leave to apply for judicial review is dismissed. 

57.  I invited the provision of the Initial Response, and it has obviously been of assistance in reaching the resolution of matters is dealt with in this Decision.  In those circumstances, it seems to me that the appropriate order of costs to make on this application is for the Applicant to bear the Putative Respondents’ costs, to be taxed if not agreed.  This is the order sought by Mr Chik in his submissions. 

58.  However, as I have not seen any response by the Applicant to that point, I will make my costs order and order nisi in the first instance.  It will become an order absolute if no party seeks a variation of the order nisi within 14 days.  Any variation application as is made will be dealt with on the papers.