WONG FUK TIM v. HKSAR GOVERNMENT AND OTHERS

HCA 1008/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1008 OF 2011

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BETWEEN

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J U D G M E N T

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1.  The Plaintiff in this action sued the Defendants in respect of the construction of two MTR lines; (1) from Sheung Wan to Wong Chuk Hang; and (2) from Admiralty to South Horizons. The Plaintiff said he is a resident in one of the affected areas and he claimed the following relief in his Statement of Claim,

“(i) declarations by the court that

(a) the 1^st Defendant has failed to protect the natural environment, properties and the local and foreign residents in Hong Kong in approving the construction projects and providing funding support to the projects;

(b) the 1^st Defendant has failed to monitor [MTRC] and ensure it carries out its business properly;

(c) the 2^nd Defendant has failed to monitor [MTRC] and properly exercise her powers derived from the governmental position;

(d) the 3^rd Defendant has failed to monitor [MTRC],

(ii) a declaration that by reason of the breach of duty of the 1^st Defendant to protect the natural environment, properties and the local and foreign residents in Hong Kong, the approval of the 1^st Defendant of the construction projects is ultra vires and is therefore void,

(iii) a declaration that, from the day of service of this Statement of Claim upon the Defendants, the Defendants shall be under a duty to halt the construction projects in order to prevent further damages to the local environment and the residents of the districts affected by the construction projects and to take actions to discontinue or obtain release of contractual arrangements for the construction projects in order to mitigate further losses to be incurred should judgments be granted against the Defendants, and”

2.  His grounds for advancing the claim, as set out in his Statement of Claim, are pleaded under the following heads,

(a)  Environmental damages;

(b)  Disturbance in the course of construction in terms of noise and dust pollution;

(c)  Personal safety affected by influx of foreign worker, in particular mainland immigrants;

(d)  Circumvention of immigration control;

(e)  Lucrative source of wealth for people with a particular background;

(f)  Hong Kong already has good public transport system;

(g)  The construction projects are unreasonable;

(h)  Inadequate public consultation.

3.  The issue of the writ (endorsed with a statement of claim) was reported in some media.  Though the Plaintiff did not serve his writ on the Defendants, by reason of the public attention brought about by the media, the Defendant obtained a copy of it from the court.  On 15 July 2011, the Defendants took out a summons to strike out the action as disclosing no reasonable cause of action or as an abuse of the process of the court.

4.  It is noteworthy at the outset that the Plaintiff did not sue the MTR Corporation Limited [“MTRC”], the corporation which undertakes the construction of MTR lines.  Rather, the Plaintiff chose to sue the Government and its officials.  His reasons for so doing, as shown in his Statement of Claim, are,

(a)  The Defendants are under an obligation to monitor the MTRC;

(b)  The defendants are under an obligation to exercise its governmental powers properly and not to cause harm to Hong Kong.

5.  At para. 7 of the Statement of Claim, the Plaintiff pleads the breach of duties on the part of each Defendant as follows,

“7. Breach of Duties

The 1^st Defendant has breached its duty to protect the natural environment, properties and the local and foreign residents in Hong Kong by approving the construction projects and providing funding support to the projects.

The 1^st Defendant has failed to exercise reasonable care.

The 1^st Defendant has breached its duty to halt the construction projects when it knows the harms that the construction projects will bring to the natural environment, properties and the local and foreign residents in Hong Kong.

The 1^st Defendant has breached its duty to monitor [MTRC] and ensure it carries out its business properly.

The 1^st Defendant has failed to impose necessary and proper statutory obligations on [MTRC] to carry out its business properly.

S.16(1) of the Mass Transit Railway Ordinance is insufficient to ensure [MTRC] to carry out its business properly.

The 2^nd Defendant has breached her duty to monitor [MTRC] and ensure her actions would not cause harm to the natural environment, properties and the local and foreign residents in Hong Kong.

The 3^rd Defendant has breached his duty to monitor [MTRC].”

6.  The matters relied upon by the Plaintiff in his Statement of Claim are patently public law challenges.  Yet, instead of proceeding by way of judicial review, the Plaintiff issued the writ in this action and in so doing he circumvented the usual procedure for advancing public law challenges in terms of seeking leave for judicial review under Section 27K(3) of the High Court Ordinance and Order 53 Rule 3 of the Rules of the High Court.

7.  This is not a mere arid procedural point.  On a leave application, the court will consider whether a challenge is reasonably arguable and whether the challenge has been mounted promptly.  If a challenge is advanced later than three months from the date of the decision, requirement was explained by the Court of Final Appeal in Po Fun Chan v Winnie Cheung [2008] 1 HKLRD 319.  Chief Justice Li said at para.14,

“Its purpose is to prevent public authorities from being unduly vexed with unarguable challenges. Whilst in a society governed by the rule of law, it is of fundamental importance for citizens to have access to the courts to challenge decisions made by public authorities on judicial review, the public interest in good public administration requires that public authorities should not have to face uncertainty as to the validity of their decisions as a result of unarguable claims. Nor should third parties affected by their decisions face such uncertainty.”

8.  To the same effect is the judgment of Ma CJHC (as he then was) in Leung v Secretary for Justice [2006] 4 HKLRD 211 at para.21,

“The procedural conditions imposed in judicial review proceedings such as the need to act without delay and the need for an applicant to obtain leave, afford a measure of protection to public authorities to ensure that matters involving the public at large are not unnecessarily disrupted where the damage to the individual is outweighed by the public interest.”

9.  Though there are exceptions as recognized by His Lordship at para.22, the general rule was stated as follows at para.21,

“As a general rule, where the subject matter of an action involves public law, judicial review proceedings should be the norm.”

10.  The same rule was stated by Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237 at p. 285D,

“… it would in my view as a general rule be contrary to public policy, and as such an abuse of the process of the court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means evade the provisions of Order 53 for the protection of such authorities.”

11.  The present case does not fall within any established category of exceptions to this general rule (and the Plaintiff did not argue that it does).

12.  In England, since the implementation of the CPR in 1998, there has been a shift in approach, see Clark v University of Lincolnshire [2000] 1 WLR 1988.  As explained by Lord Woolf MR in that case, an important consideration after the CPR is the procedure under Part 24 which enables the court, either on its own motion or on the application of a party to seek summary judgment for the dismissal of a claim in cases where a claimant has no real prospect of success.  However, though similar procedure was considered by the Working Party on Civil Justice Reform in Hong Kong, it was finally decided that we should not adopt the same here, see the Final Report of the Working Party at paras.286-288.  Therefore, the filtering process for public law litigation mandated by Order 53 continues to serve as an important safeguard in furtherance of the public interest in good public administration.

13.  Even under the new approach in England, the court will have regard to the delay in the commencement of proceedings other than judicial review in assessing whether proceedings with public law elements are abusive.  Thus, in Clark Lord Woolf said at para. 35,

“If proceedings of a type which would normally be brought by judicial review are instead brought by bringing an ordinary claim, the court in deciding whether the commencement of the proceedings is an abuse of process can take into account whether there has been unjustified delay in initiating proceedings.”

14.  The delay factor has some importance in the present case.  Whilst no decision has been made regarding the construction of the Sai Ying Pun to Wong Chuk Hang line, the Admiralty to South Horizons line was gazetted under the Railways Ordinance Cap. 519 on 24 July 2009.  Views were collected from members of the public and to address some concerns, the scheme was amended and gazetted on 4 June 2010.  The amended scheme was then approved by the Chief Executive in Council on 30 November 2010.  Construction works have been commenced.  The writ was only issued by the Plaintiff on 17 June 2011.  As such, if he were to apply for leave under Order 53, he would be seriously out of time.  He has not attempted to show why the court should extend time for him to mount a public law challenge in respect of the construction of that line.

15.  The statutory underpinning for Government authorization in respect of a railway scheme, including the Admiralty to South Horizons line, is the Railways Ordinance Cap. 519 [“the Ordinance’].  Under the Ordinance, before a decision is made for the authorization of a particular scheme, notice of the same must be given to the public and time and opportunity is given to members of the public to raise objections (see section 10 of the Ordinance).  If there were objections, the Chief Executive in Council must consider the objections in deciding whether to authorize the scheme with or without changes (Section 11(3) and (4) of the Ordinance).

16.  Many of the issues raised by the Plaintiff in the present action should have been raised by way of objections under Section 10 of the Ordinance.  The Plaintiff did not inform the court whether he had raised such objections in the statutory process.  In any event, the decision of the Chief Executive in Council was made on 30 November 2010.  As far as I can see, the Plaintiff has not advanced any reasonably arguable grounds to challenge such decision as a matter of public law.  Instead of advancing arguments that the decision was illegal, irrational or unfair, the Plaintiff tried to canvass arguments as to the merits of the decision.  In my judgment, it is against the statutory scheme of the Ordinance for the court to entertain such a challenge.  The decision is a policy decision to be made by the executive arm of the Government as a matter of macro-economic and social policy. In such matter, it is well established that the court would accord a wide margin of discretion to the executive. 

17.  As for the Sai Ying Pun to Wong Chuk Hang line, the Plaintiff would have the opportunity to raise objections in the statutory process if the Government shall decide to proceed with it in the future.  It is simply premature for the Plaintiff to advance any claim in that respect in the present action.

18.  Instead of salvaging his claims by way of public law challenges (which he had failed to formulate any reasonably arguable grounds in his Statement of Claim), the Plaintiff contended at the hearing on 23 September 2011 that his claims were based on private law.  He submitted that his claims should be regarded as claims based on torts in that the Government has a tortious duty not to cause any harm to him.  He contended that the authorization for the construction of the Admiralty to South Horizons line caused harm to him in terms of damage to the environment as well as his personal safety.  In respect of the latter, he contended that the influx of immigrants from the mainland was dangerous.

19.  There cannot be any private law claims in respect of the authorization of the project.  Private law claims in respect of railway projects authorized under the Ordinance are pre-empted by Sections 30 and 31 of the Ordinance.  If any person suffered any damages by way of disturbance in relation to a project, he may claim compensation under the Ordinance and the proper procedure is to pursue the claim in the Lands Tribunal. Further, the Plaintiff did not plead any viable basis for any compensation under the Ordinance.

20.  I also agree with the submissions of Mr Chan that the matters pleaded in the Statement of Claim do not raise any reasonable cause of action on the part of the Plaintiff.  The alleged breaches of duty are not actionable, whether by way of tortious claims or otherwise.

21.  It is plain and obvious to this court that the Plaintiff’s claim has no proper basis in law and facts.  As such, the action is an abuse of process and ought to be struck out accordingly.

22.  Lastly, the Plaintiff referred to a commentary at para. 18/19/3 of the Hong Kong Civil Procedure 2002 (which is repeated in the current edition, viz. the 2011 Edition) and submitted that the court should not exercise its power since he has not served the Statement of Claim on the Defendants.  The relevant parts of the commentary reads,

“Where the statement of claim is being attacked, the application may in a proper case be made before the defence is filed and served … However, where it is sought to stay or dismiss the action, the application should not be made before the statement of claim is served.”

The Plaintiff relied on the second sentence.

23.  This proposition seems to me to be inconsistent with the wordings of Order 18 Rule 19(1) which reads,

“The Court, may, either of its own motion or on application, at any stage of the proceedings order to be struck out … any pleading or the indorsement of any writ in the action …”

24.  Two authorities were cited in the commentaries: Wright v Prescot UDC (1916) 115 LT 772 and Electrical Co. v AG for Ontario [1919] AC 687.  If one reads those authorities, one will immediately see that the courts in those cases had to deal with a strike out application before the plaintiffs had formulated the claims by way of statements of claim.  These were old cases and in those days, the relevant rule was Order 25 Rule 4 of the English rules, cited in Wright v Prescot UDC, and it did not provide for the power to be exercised “either of its own motion or on application, at any stage of the proceedings”.

25.  What the courts held in those cases was simply that in most cases the court would not strike out an action without giving the plaintiff an opportunity to present his claim by way of a statement of claim.  The court actually accepted that there could be cases where it would be appropriate for the court to exercise its inherent jurisdiction to strike out an action before a statement of claim is available.  Thus Neville J said in Wright v Prescot UDC (1916) 115 LT 772 at p. 773,

“I can well conceive cases in which writs, under the procedure of the rules, would be set aside. Supposing, for instance, that a man brought an action against another for breach of contract to convey to him the moon, I take it that the court would look upon that as an abuse of the process of the court and would not allow the proceedings to go any further; or supposing that a lady brought an action against a man for not promising to marry her under conditions which rendered it a moral duty to on his part to do so, I can well understand that the court would say it would be an abuse of the process of the court to allow it to go further. The matter does not stop there, because hitherto I have been dealing only with the inherent jurisdiction that every court must have over proceedings that are taken in it …”

26.  On the facts of the case, Neville J found that nothing in the writ showed that it was an abuse of process.  Thus the court refused to entertain a strike out application.

27.  The present case is very different.  The Plaintiff has endorsed the writ with a statement of claim.  The summons to strike out was taken out on 15 July 2011.  Between the issue of the summons and the hearing before this court, the Plaintiff had ample opportunity to amend his statement of claim.  He did not indicate that he would wish to amend his statement of claim.  Though the Writ has not been served, the Defendant came to the notice of it in circumstances explained above.  There was ample time for the Plaintiff to withdraw the claim after the summons of 15 July 2011.  He made no such indication and he actually resisted the strike out application on the basis that he had a valid claim.  Thus, he had every intention of going ahead with the claim notwithstanding that he had not served the Writ.

28.  As I have said previously, nowadays the courts are more vigilant in preventing the abuse of its own process and one of the measures that the courts adopted is to strike out vexatious proceedings on its own motion.  The amendments to Order 18 Rule 19(1) (providing for the power to be exercised of its own motion) only spelt out explicitly the power the courts always have (as indicated in the judgment of Neville J.).  Thus, there are instances where the courts deemed it appropriate to strike out an action even before the defendants file any acknowledgments of service: see Choy Bing Wing v Chief Executive of Hong Kong SAR [2006] 1 HKC 225; Wong Shui Kee Roger v Chief Justice HCA 1474 of 2011, 22 Sept 2011.

29.  Bearing in mind the underlying objectives in Order 1A, I see no reason why the power of striking out should not be exercised in the present circumstances.  The action is obviously an abuse of process and there is no reason why this court should permit it to continue.

30.  I therefore order the Statement of Claim to be struck out and the action be dismissed.

31.  The Plaintiff shall bear the costs of the Defendants.  In the Statement of Costs submitted by the Defendants, the Defendants asked for $99,481 as costs of the action.  The Plaintiff opposed in respect of some items in his letter of 26 September 2011.  Having considered the parties’ position on quantum, I made a gross sum assessment of the costs of the action at $95,000.