KOO TING YUEN v. DIRECTOR OF LANDS

HCAL 1686/2020

[2021] HKCFI 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1686 OF 2020

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D E C I S I O N

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INTRODUCTION

1.  This is an application for leave to apply for judicial review of the decisions (“the Decisions”) of the Director of Lands (“the Director”) on 14 May 2015 to cancel or delete the “SC Survey Record” of 4 “Surveyed Squatter Structures” (“the Structures”) with SC Nos RTW/1A/85, RTW/1A/86, RTW/1A/87 and RTW/1A/89 (“SC 85”, “SC 86”, “SC 87” and “SC 89” respectively) situated at No 14, Ka Loon Tsuen, Tsing Lung Tau, Tsuen Wan, New Territories.

THE GOVERNMENT’S SQUATTER CONTROL POLICY

2.  To assist understanding of the facts of the Applicant’s case, I shall first briefly describe the Government’s squatter control policy.

3.  Squatter structures (寮屋) built on Government lands or on leased agricultural lots have existed in Hong Kong for a long time.  The work of squatter control in Hong Kong was previously undertaken by the Housing Department.  Since 1 April 2002, the squatter control function of the Housing Department in respect of urban areas and Island Districts was transferred to the Lands Department, while that in respect of the New Territories remained with the Housing Department.  Since 1 April 2006, the squatter control function of the Housing Department was completely taken up by the Squatter Control Unit of the Lands Department.

4.  In 1976, the Housing Department surveyed and registered all existing squatter structures in Hong Kong.  This survey was updated in 1982 by the Housing Department, which conducted a territory-wide Squatter Control Freezing Survey of squatter structures illegally built on unleased and unallocated Government lands or leased agricultural lots.  The purpose of the freezing survey was to register the existing squatter structures and record their locations, dimensions, building materials and use (“the SC Survey Record”).  Each of the surveyed structures (“Surveyed Squatter Structure”) was assigned a squatter survey number (“SC No”).

5.  Under the Government’s squatter control policy, Surveyed Squatter Structures are unauthorized temporary structures whose existence are tolerated for the time being until they cease to exist or are subject to clearance action taken by the Lands Department for development or environmental improvement reasons or for safety reasons, so long as the locations, dimensions, building materials and use of the Surveyed Squatter Structures remain the same as stated in the SC Survey Record.

6.  In 1984/85, the Housing Department also conducted a Squatter Occupancy Survey for the purpose of registration of the occupants of those Surveyed Squatter Structures for domestic use.

7.  In the pamphlet published by the Lands Department entitled “Squatter Control Policy on Surveyed Squatter Structures” (June 2020 edition), the Lands Department’s relevant policy is described as follows:

“Surveyed Squatter Structures

The surveyed squatter structures referred to in this pamphlet are those unauthorised structures erected on Government land and leased agricultural land before June 1982 and have been surveyed and recorded by Government before June 1982 (1982 Survey) (Surveyed Squatter Structure).

1   Use, Materials and Size of Surveyed Squatter Structure

1.1   The 1982 Survey recorded the location, dimensions (i.e. length, width, height), building materials and use of the Surveyed Squatter Structure (SC Survey Record).

1.2   Government’s position is that any Surveyed Squatter Structure on Government land is unauthorised occupation of Government land and any Surveyed Squatter Structure on leased agricultural land is an unauthorised structure on leased agricultural land, but they are tolerated to remain on a temporary basis, provided the location, dimensions, building materials and use are the same as the record in the 1982 Survey, until the Surveyed Squatter Structure has to be cleared for development, environmental improvement or safety reasons, or until the Surveyed Squatter Structure is phased out through natural wastage (e.g. when the structure is not occupied or ceases to exist).  Such tolerance does not create any legal rights or interests or obligations and does not confer on any person the right of occupation of land.

1.3   Extension, new erection, addition, change of use or alteration with materials that do not conform with the SC Survey Record are not allowed.  A Surveyed Squatter Structure with extension, new erection, addition, change of use or alteration with materials that do not conform with the record of the 1982 Survey will lose the status of a Surveyed Squatter Structure and the SC Survey Record will be cancelled. Having considered that the squatter control policy explicitly requires enforcement actions to be taken against unauthorized squatter structures and does not encourage unauthorized extension, Lands Department issued a press release on 22.6.2016 to announce the strengthened squatter control measures with immediate effect.  Specifically, if there is evidence showing that a new extension has been completed after that day, actions will be taken such as cancelling the squatter survey number instantly and demolishing the whole unauthorized structure on government land immediately upon detection without giving any opportunity to rectify, or taking lease enforcement actions against cases involving newly extended structures on private land as appropriate.

2   Rebuilding and Repair of Surveyed Squatter Structure

2.1   Rebuilding

2.1.1   Rebuilding of both domestic and non-domestic Surveyed Squatter Structure in an urban area is not allowed.  Urban area means districts other than those in the New Territories area.  For the purpose of this pamphlet, ‘New Territories area’ includes Tuen Mun, Yuen Long, Fanling, Sheung Shui, Tai Po, Shatin, Sai Kung and Islands. Rebuilding of non-domestic Surveyed Squatter Structure in the New Territories area is also not allowed.

2.1.2   Rebuilding of a Surveyed Squatter Structure with temporary materials on Government land in the New Territories area may be allowed, provided that:

-  approval of the Squatter Control Office (‘SCO’) of Lands Department is obtained;

-  the Surveyed Squatter Structure is for domestic use as recorded in the 1982 Survey; and

-  the location, dimensions, building materials (where temporary materials are used) and use of the rebuilt squatter structure will remain the same as the SC Survey Record. Asbestos can be replaced by other temporary materials.

2.2   Repair

2.2.1   Repair of a Surveyed Squatter Structure on Government land may be allowed, provided that:

-  approval of the respective SCO is obtained; and

-  the location, dimensions, building materials and use of the repaired squatter structure remain the same as the SC Survey Record. Asbestos can be replaced by other temporary materials.

3   Non-compliance

3.1   Rebuilding, repair or other works including extension, new erection, addition, change of use or alteration with materials to the Surveyed Squatter Structures without prior approval as set out in Section 2 above is not allowed.  The non-compliant structure does not conform with the SC Survey Record and will lose its status as a Surveyed Squatter Structure.  The effect is that the SC Survey Record will be cancelled and the structure will no longer be tolerated.  As the structure constitutes unauthorised occupation of Government land or is an unauthorized structure on leased agricultural land, it will be subject to appropriate enforcement action by Government without any compensation including ex-gratia allowances.

4   Surrender of Surveyed Squatter Structures

4.1   A territory-wide Squatter Occupancy Survey was carried out by the Government in 1984/85 whereby the occupants of Surveyed Squatter Structures were registered.

4.2   Surveyed Squatter Structures which are no longer occupied by the registered occupants or other occupants will be phased out, with the SC Survey Record cancelled and the structures subject to appropriate enforcement action by Government.

4.3   Surveyed Squatter Structures which are no longer occupied should be surrendered to the relevant SCO.  If it is found that occupants of a Surveyed Squatter Structure have been allocated subsidised housing by the Housing Department (HD), HD will be informed for follow-up action on the occupancy position of Public Rental Housing as well as other forms of subsidised housing.”

8.  Pausing here, it should be noted that at the time of the Decisions, the Government’s squatter control policy could be found in a handbook issued by the Housing Department “寮屋區居民手冊” (2003 edition) produced as exhibit “CKK-2” to the Affirmation of Chan Kin Kau, Acting Manager of the Squatter Control (Kowloon, Tsuen Wan & Kwai Tsing) Office (“SCO”) of the Lands Department.  The handbook set out similar restrictions on “building” and “repair” of a Surveyed Squatter Structure on Government land:

“1. 寮屋用途，材料及面積

1.1 1982年6月前已存在的寮屋，寮屋管制辦事處均有記錄，並獲暫準存在。

1.2 該等寮屋不得擴大或加建，亦不得改作與記錄不同的用途，或以未經登記的材料改建。

1.3 任何擴建，新建或被改變用途的寮屋均會即時被拆除，有關人士亦有可能被拘捕或檢控，更不會獲得任何補償或安置。

2. 寮屋的修葺及重建

2.1 居民如欲修葺寮屋，需事先向所屬寮屋管制辦事處申請，若該寮屋建於租地上，則須獲得地政總署批准，才可進行修葺。

2.2 居民進行修葺時，不得擴大有關搭建物的面積及高度，亦不得將臨時建築材料，例如木板及鋅鐵等改換為磚塊及混凝土等永久材料。

2.3 市區內所有寮屋均不准重建，但在新界區內的住宅寮屋經批准後，則可用臨時建築材料重建，經修葺或重建後，寮屋的位置，大小尺碼及高度須保持不變，及不得作與記錄不同的用途。若需用永久建築材料重建，或其寮屋位於租地上，則需事先經地政總署批准。”

BASIC FACTS OF THE APPLICANT’S CASE

9.  According to the Applicant, the Structures have been occupied by his family members in various capacities since the 1960s.  The Structures were registered by the Lands Department as Surveyed Squatter Structures.

10.  Apparently, by the 2014, the Structures became out of repair to such an extent that the roof had collapsed and the interior of the Structures was exposed to the weather, with a further risk of collapse of other parts of the Structures.  On 21 October 2014, the Applicant’s son (“Wing Kit”) wrote to the Squatter Control Unit of the Lands Department to apply for permission to repair the Structures.  In that letter, it was stated that the proposed works did not involve demolition or rebuilding, and would be carried out in conformity with the original size of the Structures.

11.  The Lands Department carried out a site inspection on 20 November 2014.  It is the Director’s case that during the inspection, Mr Liu Ki-wah (“Mr Liu”) of the Lands Department warned Mr Wong Yin Chan (“Mr Wong”), an occupant of the Structures, that prior approval was required before any repair works could be carried out.  This is disputed by Mr Wong.  There is no dispute, however, that the Lands Department never gave any formal approval of the proposed repair works.  By a letter dated 23 December 2014, the Lands Department informed Wing Kit that his application would be passed to the District Lands Office/Tsuen Wan and Kwai Tsing for handling (in view of the fact that the Structures were formerly covered by Government Land Licence No W6686, which was granted to the Applicant’s father in the mid-1970s and cancelled on 31 August 1990).

12.  Notwithstanding the absence of formal approval from the Lands Department, due to the urgency arising from the want of repairs of the Structures, Wing Kit went ahead with the repair works, which were carried out between November 2014 and April 2015, at the costs of about HK$600,000.  The Applicant’s case is that during the said period, Mr Liu made numerous inspections of the Structures and the ongoing works, in the course of which Mr Liu:

“(1) had never voiced any concerns nor any warnings regarding the repairs conducted by the Applicant to the Structures;

(2) had not informed the Applicant or the other occupants … that the repairs conducted were in breach of the Squatter Control Policy or without approval from the [Squatter Control Office];

(3) orally informed the occupants of the Structures that the repair to the Structures were permitted;

(4) advised the occupants and the workers conducting the repairs on multiple occasions on how the repair works should be conducted including the types of materials to be used, how materials should be stored and how construction waste should be disposed of; and

(5) inspected the completed repair works and provided his oral approval thereto.”[1]

These allegations are denied by the Director[2].

13.  On 14 April 2015, Mr Liu conducted a further site inspection and found that the Structures had been rebuilt into new structures which were not in conformity with the SC Survey Record in respect of the Structures.  The following discrepancies were found:

	SC Survey Record			Investigation Results on 14.4.2015
SC No	L x W x H (in ft)	Materials	Use	L x W x H (in ft)	Materials	Use
RTW/1A/85	13 x 7 x 8	Wood	Storage	24 x 17 x 9	Brick	Domestic
RTW/1A/86	30 x 15 x 10	Brick	Domestic	36 x 12 x 10	Brick	Domestic
RTW/1A/87	7 x 11 x 8	Wood	Kitchen	12 x 7 x 10	Brick	Domestic
RTW/1A/89	6 x 22 x 9	Tin Sheet	Open-side Canopy	24 x 17 x 9	Tin Sheet	Open-side Canopy

The findings of Mr Liu are disputed by the Applicant.

14.  On 14 May 2015, SCO issued 2 letters to the occupants of the Structures to cancel or delete the SC Survey Record of the Structures.

APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

15.  By a Form 86 dated 14 August 2020, the Applicant applied for leave to apply for judicial review of the Director’s decisions contained in the aforesaid letters of 14 May 2015.  Five grounds of judicial review are advanced in the Form 86, at §47:

“(1) that the Applicant had a legitimate expectation in light of the factual matters canvassed above, in particular in light of Mr Liu’s Approvals, that the proposed Respondent would not render the Decisions;

(2) that the proposed Respondent failed to give adequate reasons for the Decisions;

(3) that the proposed Respondent failed to take into account relevant considerations in making the Decisions;

(4) that the proposed Respondent materially erred in finding that there had been breaches of the Squatter Control Policy; and

(5) the Decisions were unreasonable in the public law sense.”

THE DECISIONS ARE NOT AMENABLE TO JUDICIAL REVIEW

16.  In Wong Ho Tong v Director of Lands [2018] HKCA 330, the Court of Appeal held that a decision of the Director to cancel the SC Survey Record of a Surveyed Squatter Structure is not amenable to judicial review:

“[37] Further, as a matter of law, as held by this Court in Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169, a decision by the Director to revoke a GLL [Government Land Licence] is not amenable to judicial review.

[42] On the merit of the challenge to the decisions to cancel the SSTs, the toleration granted under the Squatter Control scheme is, in law, a form of informal licence or waiver by the Government for the use of government land. Notwithstanding the submissions of Ms Ng, we cannot see any distinction in the role played by the Director in the administration of that scheme as compared with the administration and management of government land under the GLL scheme. Hence, the rationale in Chau Tam Yuet Ching v Director of Lands [2013] 3 HKLRD 169 is equally applicable.

[44] Ms Ng submitted that there is a distinction between GLLs and SSTs because the former was governed by the terms of the licences whilst the latter was governed by the Squatter Control policy. She laid emphasis on the origin of that policy to deal with the accommodation need stemming from influx of immigrants in the 1960’s and 1970’s and the conduct of land survey in 1975.

[45] We are not persuaded that the origin of the policy and the purpose it served give rise to a sufficiently strong public element in the administration of such scheme, including decisions to cancel the registration of SSTs, to render the same amenable to judicial review. As it was said in Chau Tam Yuet Ching v Director of Lands, supra, at [23]:

‘The mere presence of some public element in the Government’s decisions is not sufficient to transform such decisions into public law decisions. After all, the Government administers land in Hong Kong, whether qua landowner or landlord or covenantee, for the benefit of the general public and it is difficult to imagine a case where a public official can make such decision without affecting the public interest either directly or indirectly.’

[47] In Chau Tam Yuet Ching v Director of Lands, supra, after referring to the relevant authorities including Anderson Asphalt Ltd v Secretary for Justice, it was said at [32]:

‘In my judgment, for the purpose of determining whether a decision on land administration is amenable to judicial review, there is no material distinction between a licence and a lease or a short-term waiver.’

[48] As said above, the toleration granted in respect of the SSTs is still within the purview of Government land administration and management by the Government.  In terms of legal analysis, the SSTs are in effect informal licences or waivers and the terms of the licences or waivers were those set out in the published policy.  We cannot see any material distinction between GLLs and SSTs to render the latter amenable to judicial review whilst the former is not.”

17.  Since the judgment of the Court of Appeal in Wong Ho Tong is directly applicable to the present case and is binding on this court, it follows that the present application for leave to apply for judicial review stands to be dismissed on the ground that the Decisions sought to be challenged are not amenable to judicial review.

18.  At the hearing on 10 March 2021, Mr Pang argued that the present case was exceptional, because the Decisions were made in “bad faith”.  In support of this argument, Mr Pang relied on §57(c) of the judgment of A Cheung J (as he then was) in Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215:

“(a) Only a decision made in the public law domain is amenable to judicial review.

(b) Whilst the nature of the source of power or discretion is by no means irrelevant, it is the nature of the functions that the decision-maker was performing when making the decision under challenge that is of crucial importance.

(c) In the absence of fraud, corruption, bad faith and breach of law, a purely commercial decision, or a decision made in the performance of a purely commercial function, is most likely a private law decision, not amenable to judicial review.

(d) Put another way, the presence of a public element(s) of sufficient significance in the decision-making process could turn an otherwise commercial decision into a public law decision, amenable to judicial review.

(e) What is sufficient is a matter of fact and degree, depending very much on individual cases. No hard and fast rule can be laid down. It is, in a borderline case, very much a matter of overall impression and one of degree: R v Legal Aid Board, ex p Donn & Co [1996] 3 All ER 1, 11h, cited with approval by Mortimer VP in Matteograssi, supra, at p 219C-D.

(f) In relation to decisions made in land transactions, the same legal principles apply. A complete statement of the Hang Wah Chong principle does not merely state that in lease modification cases, the Government’s decisions on whether to grant a modification and on the amount of premium to be extracted (if any) are in the nature of private commercial or economic decisions of a private landlord, and therefore not susceptible to judicial review. A complete statement of the principle also says that where the Government official, in making the decision, acts in his role as protector of the public interest, his decision is almost certainly liable to judicial review.

(g) Thus understood, the so-called Hang Wah Chong principle is no more than a special application of the general principles on the distinction of public/private law to land matters in Hong Kong.

…”

19.  In my view, the Applicant is not entitled to argue that the Decisions were made in “bad faith”, because it is not a ground of judicial review raised in his Form 86.  In any event, on the materials before the court, I fail to see any arguable basis for the Applicant to contend that the Director, or officers of the Lands Department, made the Decisions in bad faith.

STANDING

20.  The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates (Order 53, r 3(7) of the Rules of the High Court, Cap 4A).

21.  Mr Pang argues that the Applicant has a sufficient interest because (i) he is an occupant of the Structures, and (ii) he paid for the aforesaid repair works.

22.  In respect of the (i), the evidence before the court discloses that:

(1)  The Applicant’s father was the licencee of GLL W6686 in respect of the Structures granted in the mid-1970s.  That licence was cancelled on 31 August 1990.

(2)  The Squatter Occupancy Survey record show that a family of five, consisting of the Applicant and his father, mother, sister and former wife, occupied SC 86 in 1976.

(3)  In 1992, the names of the Applicant and his former wife were deleted from the Squatter Occupancy Survey record as they were offered a public rental housing unit in 1992.

23.  The above matters appear in the Affirmation of Chan Kin Kau, Acting Manager of SCO, filed on 10 December 2020.  The Applicant did not dispute those matters in his 2^nd Affirmation filed on 17 February 2021.  It may therefore be thought that he does not dispute that he no longer resides in the Structures.  However, at the hearing on 10 March 2021, Mr Pang informed the court, on instruction, that the Applicant had a divorce in 1998 and moved back to the Structures, and that the Structures are currently occupied by the Applicant, Wing Kit’s family (including his wife and 2 children), and Mr Wong and his partner (Madam Lee, being Wing Kit’s mother-in-law).  On the other hand, the evidence before the court indicates that the Applicant had no direct dealings with the Lands Department in relation to the repairs works carried out between November 2014 and April 2015.

24.  In respect of (ii), the relevant receipt for the repair works for the amount of HK$500,000 dated 1 May 2015 was issued to Wing Kit, instead of the Applicant.

25.  If the Applicant is not, in fact, an occupant of the Structures, I do not consider that he has a sufficient interest in the matter to which the present application relates merely because he has, or might have, paid for the repair works.  However, I am unable to make a definitive finding on whether the Applicant is currently an occupant of the Structures on the materials presently before the court.  I would not therefore find against the Applicant on the issue of standing, save to note that there is a real issue on whether he has a sufficient interest to make the present leave application.

THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW IS SUBSTANTIALLY OUT OF TIME

26.  An application for leave to apply for judicial review of a decision of a public authority must be made promptly and in any event within three months from the date when grounds for an application first arose (Order 53, r 4(1) of the Rules of the High Court).  The Director made the Decisions on 14 May 2015.  That was the date when grounds for an application to challenge the Decisions first arose, and the 3-month period for making an application for leave to apply for judicial review of the Decisions began to run as from that date.  On behalf of the Applicant, Mr Pang submits that after the Decisions, the Applicant was in constant communication with the Lands Department with a view to having the matter resolved amicably.  There were also letters from the Applicant’s solicitors (Messrs Ford Kwan & Co) to the Lands Department dated 2 October 2019 and 8 May 2020 respectively requesting the Director to review the Decisions.  However, as this court stated in Nisa Azizan v Director of Immigration, HCAL 203/2015 (unreported, 15 April 2016), at §29: “An applicant cannot get around or avoid this time requirement by the device of asking the decision maker to ‘reconsider’ his decision by putting forward different arguments or providing additional information, still less by repeating the same arguments or relying on the same information previously advanced in support of the original application”.  See also Lo Siu Lan v Hong Kong Housing Authority, CACV 378/2004 (unreported, 17 December 2004), at §39; Super Lion Enterprises Ltd v Commissioner of Rating and Valuation, HCAL 71/2005 (unreported, 6 October 2006), at §128; Martin Tao Ming Lee v Secretary for Civil Service, HCAL 82/2010 (unreported, 8 August 2011), at §8; and E T Investment Limited v Director of Health, HCAL 13/2015 (unreported, 3 February 2016), at §§17-18.

27.  There has undoubtedly been delay in the present application.  Where there has been delay in applying for leave to apply for judicial review, the court’s approach in deciding whether to grant an extension of time to the applicant to make the application is well established (see AW v Director of Immigration [2016] 2 HKC 393).  The court should take into account the following non-exhaustive list of factors: (i) length of delay, (ii) explanation for the delay, (iii) merits of the substantive application, (iv) prejudice, and (v) whether any question of general public importance is raised in the application.

(i)     Length of delay

28.  The delay in the present case is about 5 years.  As stated by the Court of Appeal in AW, ante, at §37(3)(iii), “[w]here an applicant is many months out of time, leave may be refused ‘however strong the complaint might otherwise be’… An Applicant who sleeps upon his rights may be barred from pursuing them in judicial review even though he may have a meritorious case”.

(ii)     Explanation for the delay

29.  The explanation offered by Mr Pang, namely, that the Applicant was in communication with the Lands Department and wished to resolve the matter amicably, is not a good explanation for the delay.  In Wong Ho Tong, ante, at §39, the Court of Appeal remarked: “The fact that the Director continued to engage with the representatives of the applicant does not mean that there is a good reason for extending time.”

(iii)    Substantive merits

30.  When considering the merits of an intended application for judicial review in the context of determining whether to grant an extension of time to an applicant to apply for leave to apply for judicial review, the court is not required, and often is not in a position, to form a definitive view.  All that is required is for the court to make a provisional assessment of the merits of the intended application.

31.  In the present case, the Applicant’s main complaints are four-fold.  First, the Applicant alleges that Mr Liu had, on behalf of the Director, given verbal and/or tacit approval of the repair works during his inspections of the Structures and on-going works between November 2014 and April 2015.  This allegation raises a substantial dispute of facts which it is not possible to resolve at this stage.  I would merely observe that the allegation is not supported by contemporaneous documentary evidence.  In Wong Ho Tong, ante, at §67, the Court of Appeal made the following observation: “As regards the alleged representation by Mr Tang, this had been refuted in his affirmation.  In light of the established policy and the findings by the Squatter Control Office as set out in the letter of 7 August 2015, it was unlikely that Mr Tang would have made such representation.” That observation was made in the context of an allegation that an officer of the Lands Office had given an oral representation at a meeting with the applicant that she would be allowed to “rectify” the works which caused the cancellation of the SC Survey Record in that case, which would seem to be inconsistent with the Government’s squatter control policy.  This observation is, I consider, equally apposite in the context of the present case.

32.  Second, the Applicant disputes the findings of Mr Liu from the site inspection carried out on 14 April 2015 and the alleged discrepancies between those findings and the SC Survey Record in respect of the Structures.  According to the Applicant, the discrepancies arose out a mistake of fact or confusion on the part of the Lands Department regarding the correct locations of SC 86 and SC 87[3]. My comments are as follows:

(1)  It seems clear on the evidence that -

(a)  in respect of SC 85, there has been a change of material (from wood to brick), size (from 13’ (L) x 7’ (W) to 24’ (L) x 17’ (W)[4]), and use (from storage to domestic); and

(b)  in respect of SC 89 (the Open-side Canopy), there has been a substantial enlargement (from 6’ (L) x 22’ (W) to 24’ (L) x 17’ (W)[5]).

(2)  In respect of SC 86 and SC 87, the discrepancies may have arisen from the fact that there had already been substantial changes in their sizes and locations between the date of the original survey in 1976 and the time immediately before the repair works were carried out (in late 2014).  The court is not in a position to make a definitive finding, based the existing materials before it, whether the Lands Department has made a mistake of fact regarding the correct locations of SC 86 and SC 87.  I should, however, add a word of caution as to whether the court should entertain a dispute of this nature in an application for judicial review.  As stated by the Court of Appeal in Wong Ho Tong, ante, at §49: “In any event, the case of the applicant as now presented by Ms Ng was in substance essentially a challenge to the findings by the Squatter Control Office.  However, it is not the function of the court in an application for judicial review to re-open such findings as if we were hearing an appeal from the Office.  The administration of Government land is the function of the Director, not the court.  Hence, it is not appropriate for the court to usurp that role by reviewing the findings on papers when we do not have the benefit in terms of site inspection and the expertise of those in the Squatter Control Office to assess the extent to which the original structures remained after the works undertaken by the applicant or her agents.”  This is not an issue which it is necessary to resolve in the present leave application.

33.  Third, the Applicant complains about inadequate reasons given by the Director for the Decisions.  I have read the 2 decision letters, and consider that they are sufficient to enable the Applicant to understand the basis of the Decisions, namely, that the current dimensions, materials and use of the Structures were not in conformity with the SC Survey Record in respect of the Structures.  Anyhow, I do not see that the Applicant has suffered any real prejudice arising from the alleged inadequate reasons.

34.  Fourth, the Applicant argues that the Director, in making the Decisions, failed to take into account the fact that the Structures had been subsisting since the 1960s and had been in occupation by various persons, and were dilapidated and in urgent need of repairs to make them habitable again.  It seems to me that these are discretionary matters for the Director, not the court, to consider.

35.  Overall, leaving aside the question of amenability and standing, I am prepared to assume, in the Applicant’s favour, that the intended application for judicial review, in so far as it is based on the complaints mentioned in §§31 and 32 above, is reasonably arguable. However, I do not consider the merits of the intended application to be strong.

(iv)    Prejudice

36.  Assuming that the Applicant is still an occupant of the Structures, the Decisions, if allowed to stand, will undoubtedly cause him prejudice.

37.  On the other hand, the Director will also suffer prejudice if time is extended for the Applicant to make the present application for leave to apply for judicial review.  As stated by the Court of Appeal in Wong Ho Tong, ante, at §71: “The undue delay on the part of the applicant in seeking leave is detrimental to good administration because it caused substantial delay to the process of removal of the unauthorized structures on the land”.

(v)     No question of general public importance

38.  The grounds of judicial review raised by the Applicant in his Form 86 (breach of legitimate expectation, inadequate reasons, failure to take into account relevant considerations, mistake of fact, and unreasonableness) are all facts specific.  No questions of general public importance are raised in the intended application for judicial review.

CONCLUSION

39.  Having come to the view that the Decisions sought to be challenged by the Applicant are not amenable to judicial review, it is clear that the intended application for judicial review is not reasonably arguable and has no realistic prospect of success.  In such circumstances, I would not be prepared to grant any extension of time to the Applicant to apply for leave to apply for judicial review.

40.  Even if, contrary to my view, the Decisions are amenable to judicial review, there is still an issue on the Applicant’s standing to make the present application.  The substantive merits of the intended application are not strong.  The delay in the present case is very substantial, and there is no good explanation for the delay.  Overall, I would decline to exercise my discretion to grant any extension of time to the Applicant to make the present application for leave to apply for judicial review.

DISPOSITION

41.  The application for leave to apply for judicial review is dismissed.

42.  The principles governing an award of costs in an unsuccessful application for leave to apply for judicial review are well settled (see Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841, at paragraph 17), and do not have to be repeated here.  I consider that the Applicant should pay the costs of the Director in this case, because (i) the Director filed evidence and attended the inter-partes leave hearing pursuant to a Consent Summons dated 7 September 2020, and has provided substantial and helpful assistance to the court; (ii) the application has plainly no realistic prospect of success in view of the fact that the Decisions sought to be challenged are not amenable to judicial review, and (iii) the Applicant has substantially delayed in making the present application by 5 years.  I make an order that the Applicant shall pay the Director’s costs of this application, including the costs of the hearing on 10 March 2021 and all reserved costs (if any), to be taxed if not agreed.