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HCAL 114/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 114 OF 2012
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IN THE MATTER of an Application by the Applicant for Leave to Apply for Judicial Review pursuant to Order 53 rule 3 of the Rules of the High Court, Cap 4A
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and
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IN THE MATTER of Articles 39 and 40 of the Basic Law
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and
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IN THE MATTER of Articles 17(1) and 23(1) of the ICCPR and Articles 14(1) and 19(1) of the HKBORO
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WU YUK WAH BEN（ 胡玉華） |
Applicant |
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| Before: |
Hon Lam JA in Court
(Sitting as an additional Judge of the Court of First instance) |
| Date of Hearing: 5 September 2012 |
| Date of Judgment: 5 September 2012 |
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J U D G M E N T
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1. Having read the materials placed before me again in light of the submissions of counsel, it is plain and obvious to me that the Director has not misled the villagers that their Fung Shui concerns may be addressed by a relocation of site.
2. We can start with the approval given by the Town Planning Board [“TPB”] in 2009. Even though there was an advisory clause in the decision, that advisory clause is not part of the decision. The actual decision was the approval of the construction of the station on the site under the Town Planning Ordinance. Though the advisory clause suggested the Director to “liaise with the local villagers with a view to addressing their concerns on the Fung Shui issue …”, that cannot detract from the effect of the approval given, viz the building of the station on that site. If the TPB considered that Fung Shui concern is a good legal ground for objecting to the construction of the station at that site, they should not give the approval. Properly construed, such advisory opinion of the TPB (which, as Mr Dykes quite properly accepted, has no binding legal effect) can only mean that the Director was advised to discuss with the villagers as to ameliorative Fung Shui measures other than relocation of site. If the villagers believed they had a legal case (say based on Art 40 of the Basic Law [“BL”] or the right of privacy or family under Arts 14 or 19 of the Hong Kong Bill of Rights [“HKBoR”], grounds 2 and 3 in the Form 86), they should either appeal (if they have the standing to do so) against the decision of the TPB or seek judicial review (if they have no standing to appeal) in 2009. They did not do so.
3. Understandably, Mr Dykes focused on Ground 1 and contended that the Director’s conducts subsequent to the TPB approval gave rise to good grounds of belief on the part of the villagers that the relocation site was an option. This, he contended, gives rise to a legitimate expectation that the villagers would be consulted.
4. The Director did embark on discussions with the villagers with regard to alternative sites. The villagers were informed about those other sites which had been considered and explanations were given as to why such alternatives were not viable. This was set out at great length in the letter of 24 August 2010 addressed to the village representatives and reiterated in the letter of 21 September 2010 addressed to the solicitors for the villagers. Whatever may have been the position before August 2010, in my judgment, the Director has made the position crystal clear that the current site would be the one.
5. The matter can be tested this way: if the villagers were to apply for JR in August 2010 could the Director object on the basis that the choice of site was still in the process of consultation. I cannot see any reason why, if the choice of site was the issue, the villagers could not lodge a judicial review at that point in time. This highlights the serious delay on the part of the villagers in the present application.
6. In subsequent correspondence, the stance of the Director as to the choice of site has been consistently maintained. I have read the subsequent correspondence and I cannot find any evidential basis for suggesting that the Director has given an impression to the villagers that the choice of site is still open for discussion. Mr Tam asked the court to have regard to the letter of 25 February 2011 from the solicitors of the villagers to the Director. The reply from the Director dated 25 March 2011 simply reiterated that the current site was the one that the Director would recommend in seeking funding for construction. The Director also explained why another alternative was not viable both from technical and environmental point of view. The same stance was maintained at the meeting of 16 April 2012 between the Rural Committee and the various government departments, see in particular para 30 of the minutes.
7. The Director and other government officials have met with the villagers or their representatives and there were correspondence. But there is nothing in these meetings and correspondence which can reasonably give rise to a representation on the part of the Director that the choice of site was still open for discussion in light of the clear and consistent statements of position since 24 August 2010.
8. All these must also be considered against the timeline for the construction of the station. The current radar station will approach the end of its functional life in 2013 and the new station has to be in place and operational well before that. The approval of the TPB will expire in 2013. The significance of this radar station for the safe operation of our airport has been explained in the evidence and the villagers were also made aware of that. Given such a timeline, it would be naïve to expect that the choice of site is still a live issue in 2012.
9. For these reasons, I am of the view that the application for judicial review is seriously out of time and there is no good reason for extending time. I would also add that in respect of grounds 2 and 3, I am in agreement with the analysis of Mr Wong in his written submissions and there is simply no reasonably arguable grounds for challenge whether under Art 40 of the BL and Arts 14 or 19 of the HKBoR.
10. For these reasons, leave is refused.
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(M H Lam) |
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Justice of Appeal |
Mr Philip John Dykes, SC, Mr Jeffrey C K Tam and Ms Rachel S Y Wong, instructed by K C Ho & Fong, for the Applicant
Mr Stewart K M Wong, SC and Mr Anthony Chan, instructed by the Department of Justice, for the Putative Respondent
Please refer to CACV208/2012 for the relevant appeal(s) to the Court of Appeal. |