CHAN KA LAM v. THE COUNTRY AND MARINE PARKS AUTHORITY

CACV 150/2017

[2019] HKCA 1292

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2017

(ON APPEAL FROM HCAL 54/2014)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  We handed down our main judgment on 14 May 2019 in this appeal dismissing the same. By a Notice of Application of 11 June 2019, the applicant sought leave to appeal to the Court of Final Appeal.

2.  The following are the questions formulated in the Notice of Application:

“ A. Questions of Great General of Public Importance

1.	(a) To what extent do the requirements of the common law duty to consult, including the principles of fairness and meaningful consultation, as framed by the Sedley[1] criteria, apply to the statutory duty imposed upon statutory authorities to consult statutory boards established for that purpose in Hong Kong?
	(b) In particular, to what extent do those requirements inform the statutory duties in s.5(1)(b) of the Country Parks Ordinance, Cap. 208 (“the CPO”) requiring the Country and Marine Parks Authority (“Authority”) to consult the Country and Marine Parks Board (“the Board”) and the Board to consider and advise and the Authority, in particular, the process, manner and substance of the consultation so required when identifying what constitutes a “programme” for the purpose?
2.	Where the Authority has conducted a programme of assessment and has come to its own views and/or decisions whether or not to recommend to the Chief Executive the designation of areas of land as country parks pursuant to s.4(a) CPO, does s.5(1)(b) CPO require the Authority to consult the Board and receive its advice on both, or is the Board confined to negative vetting of only the Authority’s decisions to recommend?

B. Or Otherwise

3.	Do decisions taken in batches by the Authority not to recommend the designation as country park of areas of land surrounded by one or more Country Parks under s.4(a) CPO constitute a programme prepared by the Authority “in respect of [those] country parks” within s.5(1)(b) of the CPO?”

3.  In accordance with Practice Direction 2.1, written submissions on the application were lodged by the applicant and the respondent.  The last round of submissions was the reply submissions of Mr Kat SC lodged on 13 September 2019.

4.  Having read those submissions, we are of the view that the application can be determined on the papers without any oral hearing.

5.  Before we address the questions formulated by Mr Kat for the purpose of this application, it should be recalled what this appeal was about.  As explained in our main judgment, the main issue in the appeal was whether the Authority had a statutory duty to consult the Board before making a recommendation under section 4(a) of the Country Parks Ordinance Cap 208 (“CPO”). The recommendation, if acted upon by the Chief Executive by a direction, will trigger the process of designation of an area as country park under Part III of the CPO.  The process starts with the preparation of draft map by the Authority and under section 8(4) the Authority has to consult the Board on the preparation of the draft map.

6.  We have explained the statutory process under Part III at some length in our main judgment at [10] to [28] and shall not repeat the same in this judgment.  Apart from the consultative role under section 8(4), the Board also plays an adjudicative role under section 11(6) in case there are objections to a draft map.

7.  There is no doubt that the Board has a consultative role under section 8(4) and this was common ground in the appeal. The dispute in the appeal was whether at the prior step of recommendation to the Chief Executive the Authority has a statutory duty to consult the Board.

8.  Whilst the issue primarily depends on the construction of the phase “policy and programmes prepared by the Authority” in section 5(1)(b) of the CPO, insofar as one is concerned with the process of designation of country park, as explained in our judgment, one must also have regard to the statutory regime for that process in order to achieve a construction which is consistent with the statutory context as a whole.  For that reason, at [61] of the main judgment, we alluded to such statutory context, including the consultation under section 8(4), before we came to the conclusion that such recommendation does not fall within the scope of “policy and programmes prepared by the Authority”.

9.  Throughout the reasoning in our main judgment, we did not decide on the contents of a duty to consult as it was not an issue before us.  In particular, we did not decide that if such duty arises (as it would indisputably be under section 8(4) of CPO after a direction is given by the Chief Executive) the extent to which the so-called Sedley guidelines would apply.   We have actually alluded to such guidelines at footnote 2 in [48].

10.  As submitted by Mr Chan SC, in the formulation of Question 1(a) Mr Kat has presupposed that there is a duty to consult at the prior step of recommendation.  Such formulation is not helpful in light of the real issues debated before us.  The explicit statutory duty to consult the Board is in section 8(4) and in light of that and other reasons we gave in our main judgment there is no statutory duty to consult the Board in respect of the prior step of recommendation.  The contents of a duty to consult, if one arises, cannot assist in providing the answer to the prior question of whether a duty exists which was the issue before us.

11.  In short, Question 1(a) is not engaged.

12.  Under Question 1(b), Mr Kat laid emphasis on the proposition that a meaningful consultation must precede the action concerned. But it remains a quantum leap from such proposition to the establishment of a statutory duty to consult in respect of recommendation under section 4(a).  

13.  As we have explained, in respect of designation of country park, the statutory scheme provides different stages which viewed as a whole can be regarded as a global consultation process: with the consultation of the Board under section 8(4) when draft map is being prepared (with the possibility of the proposed designated area being enlarged: see [14] of the main judgment); followed by a process of considering objections from person aggrieved under section 11 (which can be regarded as part of a public consultation exercise, in which the Board would act as an adjudicator with the power to direct the Authority to make amendments to the draft map to meet an objection: see section 11(6)(b)). Consultation with the Board under section 8(4) also takes place at the formative stage of a draft plan.

14.  There is nothing in Regina (Moseley) v Haringey London Borough Council [2014] UKSC 56 which mandates the construction of the scope of a statutory duty to consult without regard to the particular statutory regime in question. For the construction of section 5(1)(b), particularly in the context of recommendation under section 4(1), it would be wrong to disregard the statutory regime under Part III of the CPO. 

15.  As regards Question 2, we do not find the self-serving characterization by Mr Kat of the recommendations as “programmes of executive action” or “programmes of assessment” or his unwarranted description of the consultation under section 8(4) as “negative vetting” take the legal analysis further in terms of the proper construction of section 5(1)(b).

16.  In light of the particular regime for designation of country park under Part III of the CPO, we do not find Question 2 to be reasonably arguable to bring about a different answer to the issue we determined in the appeal.

17.  Mr Kat explained in his submissions that Question 3 is to be considered only on the premise that the applicant succeeds on either Question 1 or Question 2.  In light of our decision above, there is no need to address Question 3.

18.  For these reasons, we will not grant leave to appeal and the Notice of Application of 11 June 2019 is dismissed with costs, such costs are to be taxed if not agreed.  We also order the applicant’s own costs be taxed under Legal Aid Regulations.