LAU TONG MING v. DIRECTOR OF LANDS

HCAL 131/2015

[2018] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 131 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.  The applicant had been residing since 1963 or 1964 in a squatter hut (“the Registered Hut”) at No 716 Shek O Village.  The Registered Hut was built on undeveloped and unleased Government land and had been tolerated by the Government under its squatter control policy (“the Squatter Control Policy”).

2.  On 18 May 2015, the Director of Lands (“the Director”) posted at the Registered Hut a notice (“the Notice”) issued under section 6(1) of the Land (Miscellaneous Provisions) Ordinance (Cap 28) (“the LMPO”) requiring all the occupants in the Squatter Hut to cease occupation by the next day, 19 May 2015.[1]  The Director decided to issue the Notice as he found that the Registered Hut had been altered and rebuilt to the extent not permitted under Squatter Control Policy, and thus would not be tolerated.

3.  By way of this judicial review, the applicant seeks to challenge the following decisions (collectively “the Decisions”) of the Director:

(1)   The decision of the Director dated 18 May 2015 to set up the Notice to evict the applicant from the Registered Hut, without making appropriate accommodation or compensation arrangements for the applicant (“the 1^st Decision”).

(2)   The decision of the Director dated 19 May 2015 to repossess the Registered Hut and board it up, without making appropriate accommodation or compensation arrangements for the applicant (“the 2^nd Decision”).

(3)   The decision of the Director dated 3 June 2015 to dismiss the applicant’s request to review the 1^st Decision and the 2^nd Decision, (“the 3^rd Decision”).

(4)   The decision of the Director dated 23 June 2015 to dismiss the applicant’s request to review the 1^st Decision and the 2^nd Decision, and to further also repossess the land surrounding the Squatter Hut (“the 4^th Decision”).

4.  In gist, the applicant challenges the Decisions on the following grounds:[2]

(1)   They frustrated the applicant’s legitimate expectation that he would be given an opportunity to be warned, or meaningfully reply to the Director’s allegations, before being served with the Notice, evicted from the Registered Hut, and have other relevant negative consequences visited upon the applicant (“the Due Notice Expectation Ground”).

(2)   They frustrated the applicant’s legitimate expectation that he would be offered an opportunity to rectify or restore the Registered Hut before being served with the Notice, evicted from it, or have other relevant negative consequences visited upon him (“the Chance to Rectify Expectation Ground”).

(3)   They were in breach of natural justice in failing to allow the applicant to be heard before being served with the Notice (“the Breach of Natural Justice Ground”).

5.  I will first set out the relevant background to put the matters and challenge in proper context.

B.   THE RELEVANT FACTUAL BACKGROUND

6.  Most of the relevant factual events leading to this judicial review are largely not in dispute.  They have been fairly summarized by the Director it his Initial Response.[3]  They are as follows.

7.  Squatting has been a long-standing problem in Hong Kong. It has always been unlawful to do so.  But given the extensiveness of the problem, there were and are practical and operational difficulties for the Government to demolish all squatter structures.

8.  In 1976, the Squatter Control and Improvements Division surveyed all the then existing squatter structures in Hong Kong and registered them.  The squatter survey was updated in 1982 by the Housing Department, which conducted a territory-wide Squatter Control Freezing Surveys (“SCFS”) of squatter structures illegally built on unleased and undeveloped Government land.  The purpose of the SCFS was to register those squatter structures detected at the time of the surveys.  Under the SCFS, the location, dimensions, building materials and use of the squatter structures were recorded.

9.  Under the Government’s Squatter Control Policy, structures registered under the SCFS (commonly known as “SC Surveyed Structures”) are unauthorized temporary structures whose existence are tolerated for the time being until they cease to exist or are involved in clearance action taken by the Lands Department (“the LandsD”) for development or environmental improvement reasons or for safety reasons, so long as the locations, dimensions, building materials and use of the SC Surveyed Structures remain the same as those stated in the SCFS records.

10.  In this respect, one of the main rules under the Squatter Control Policy has been that any extensions or new structure to SC Surveyed Structure or enlargement or rebuilding of the same is not allowed (“the No Extension or New Building Rule”).[4]

11.  Hence, it was made clear in publicly available documents that (a) any extension to or alteration to the building materials and uses of these structures, which differs from that recorded in the squatter survey, is not permitted; (b) all new illegal extensions or structures will be demolished immediately and the persons concerned will be liable to be arrested and prosecuted without any compensation or rehousing arrangements; (c) prior approval for repair works should be sought from the squatter control office; (d) squatters are not allowed to enlarge their structures nor replace temporary building material with permanent material; and (e) rebuilding of structures in the urban area is not allowed.[5]

12.  The applicant was and is a registered squatter.  The Government’s record (compiled in 1976 and checked in 1983) shows that his registered squatter structure (survey no RH/15B754) (ie, the Registered Hut) had a dimension of 11 ft x 18 ft x 9 ft and was built of wood, tin and bricks.  The Registered Hut was situated at No 716 Shek O Village (“No 716”), which was and is un-leased Government land located in the urban area.  There was no photographic record of the Registered Hut. According to the squatter population registration form in 1984, which the applicant signed, he was residing the Registered Hut with his wife, three daughters and one son.[6]

13.  On 14 May 2015, the Squatter Control Unit (“the SCU”) received a complaint concerning No 716.[7]  On 15 May 2015, the SCU called the complainant by phone and obtained further information from the complainant.  On the same day, the SCU conducted a site investigation, which revealed extensive unauthorized building at No 716.  It is the SCU’s view that the Registered Hut was nowhere to be found and in its place stood a new building (“New Building”).  The New Building’s dimensions were 51 ft (length) x 33 ft (breadth) x 13 ft (height) and hence it was much bigger than and very different from the Registered Hut (as shown in the Government’s record). In addition, adjacent un-leased Government land (around 28 ft x 50 ft) was also unlawfully enclosed as a private garden by way of a fence and gate.  At this site investigation, the SCU did not see anyone and did not observe any sign of human habitation at No 716.

14.  The SCU therefore concluded from that site investigation that (a) the applicant had contravened the No Extension or New Building Rule under the Squatter Control Policy, which prohibits a registered squatter from building any extensions or new structures to his registered squatter structure or enlarging or rebuilding the same;[8] and (b) the applicant was unlawfully occupying un-leased Government land (ie, the fenced off private garden).

15.  For those reasons, on 18 May 2015 at around 10:20am, the SCU posted the Notice requiring the occupiers of No 716 to cease occupation by 19 May 2015.[9] The applicant appeared at No 716 and the SCU explained to him the reasons for issuing the Notice and informed him that enforcement action would be taken on the next day on 19 May 2015.  The applicant said that the works at No 716 were indeed repair but not rebuilt works.  The SCU told him it did not matter whether it was repaired or rebuilt because the applicant was in breach of the No Extension or New Building Rule and has occupied un-leased Government land without permission.  Further, during the visit on 18 May 2015, the SCU discovered there had been extensive unauthorized excavation works done at No 716 and that constituted an additional reason justifying the issuance of the Notice.  The applicant was notified of the same.

16.  On the same day, the applicant’s daughter-in-law (a Ms Ching) visited the SCU’s office.  During that meeting, the SCU informed her why it issued the Notice (ie, because the applicant was in breach of the No Extension or New Building Rule and had occupied and excavated un-leased Government land unlawfully) and intimated that if necessary it could arrange for temporary accommodation for the applicant and his family at a transit center.  Ms Ching said it was not necessary as (a) the applicant’s daughter (a Ms Lau) and her family were residing at a property somewhere else; and (b) the rest of the applicant’s family was living at another number at Shek O Village.[10] Ms Ching also informed the SCU that she was an employee at a bank whereas the applicant’s two daughters were civil servants and their husbands were, respectively, a legal clerk and accountant.  Ms Ching also mentioned that the building works the SCU saw at No 716 commenced on 11 May 2015 and the applicant’s family had already paid the first installment of HK$200,000 to the building contractor.

17.  On 19 May 2015, the applicant wrote to the SCU and claimed that he was only renovating the roof without making any structural alterations.  He also claimed he did not leave No 716.  He requested the SCU to cancel the Notice.[11]  On the same day, Eastern District Councillor Mr Peter Shiu called the SCU and spoke to Mr Li who was the assistant manager of the SCU.  Mr Shiu inquired about the applicant’s case and informed Mr Li that an Authorized Person had certified there was water leakage at the rooftop of the New Building, so that the applicant had to repair it.  Mr Li informed Mr Shiu that the SCU would go ahead with enforcing the Notice but nevertheless asked him to provide the relevant evidence from the Authorized Person but the SCU never received the same.

18.  On 20 May 2015, the SCU received yet more complaints concerning No 716.[12]

19.  On 22 May 2015, the applicant accompanied by his son, daughter‑in‑law (Ms Ching) and Mr Shiu visited the SCU’s office.  During the meeting, the SCU explained the reasons why it issued the Notice were because the applicant was in breach of the No Extension and New Building Rule and he had occupied and excavated un-leased Government land without permission.  The applicant admitted that he had built an extension to the Registered Hut to accommodate his growing family.  Mr Shiu asked if the applicant was willing and able to carry out rectification work to return the New Building to the Registered Hut, would the SCU cancel the Notice.  Mr Yeung of the SCU replied that if the applicant was willing and able to carry out such work, the SCU may review the case.  Further, the applicant said he and part of his family were living at No 411 Shek O Village, a 3‑storey bungalow house, which they rented for HK$20,000 a month.  The SCU suggested to the applicant and his family that if necessary it could arrange temporary accommodation for them at a transit center and the applicant and his family rejected that suggestion.[13]

20.  On 26 and 27 May 2015, the applicant’s daughter‑in‑law Ms Ching called the SCU and asked when can the applicant start the repair work at No 716.  Mr Li of the SCU informed her that as No 716 had been recovered by the Government, the applicant is not entitled to carry out any such work there.  Further on 1 June 2015, Mr Shiu called the SCU and Mr Yeung the manager of the SCU informed Mr Shiu that the SCU would issue a letter to reply to the applicant’s letter dated 19 May 2015.  Mr Shiu invited the SCU to conduct a site visit to No 716.  The visit was later arranged to be carried out on 5 June 2015.

21.  On 3 June 2015, the SCU replied to the applicant’s letter dated 19 May 2015[14].  The letter mentioned that the area of the building currently standing on No 716 was different from the area of the Registered Hut as recorded in the Government’s record and that the SCU refused the applicant’s request to preserve the New Building or to cancel the Notice.  It also mentioned that the applicant had occupied and excavated un-leased Government land without permission.

22.  On 4 June 2015, staff of the SCU conducted a routine patrol at No 716 and observed no noticeable event. Joint site inspection by the SCU, the applicant and his family and Mr Shiu was conducted on 5 June 2015.  During that inspection, the applicant tried to show that a structure that bore the dimension of the Registered Hut was still at No 716 but was integrated into the New Building.  However, the SCU’s view was that (a) the Registered Hut was no longer in existence and the New Building was in fact a completely new construction; (b) judging from its outlook and the colour of its cement and bricks, the structure that bore the dimension of the Registered Hut of 18 ft (length) x 11 ft (width) was not the Registered Hut but simply a newly built room or a cubicle within the New Building; and (c) even if there was no rebuilding but only extension works, the New Building was much bigger than and very different from the Registered Hut.[15]  In this respect, it is the Director’s position that the applicant never notified the SCU nor sought prior approval for these building works whether one calls them rebuilding or extension works.

23.  On 8 June 2015, the applicant wrote to the SCU.[16] Amongst other things, the letter recorded (a) his own admission made at the meeting on 22 May 2015 that he had built an extension to the Registered Hut; (b) a diagram showing the correlation between the structure that bore the dimension of the Registered Hut and the New Building; and (c) the applicant’s family was staying elsewhere during the alleged renovation works (although he claimed to have remained).  The letter concluded by requesting the SCU to allow the applicant to reinstate the Registered Hut in place of the New Building.

24.  On 10 June 2015, staff of the SCU conducted a routine patrol at No 716 and observed no noticeable event.  On 23 June 2015, the SCU went to No 716 and took down the mailbox and locked the wooden gate there using a metal chain and a lock.

25.  On 23 June 2015, the SCU replied to the applicant’s letter of 8 June 2015 saying that it had, at the applicant’s request, visited No 716 on 5 June 2015 and reviewed the case in light of the material provided by the applicant and it confirmed that the New Building did not match with the Government’s record on the Registered Hut[17].  The SCU also mentioned there was rebuilding works done.  Further, the SCU said that under the existing Squatter Control Policy, the SCU could without warning remove the applicant’s registered squatter status and recover No 716.  The SCU refused the applicant’s request to preserve the New Building.  The SCU also mentioned the applicant had occupied and excavated un-leased Government land without permission.

26.  On 24 June 2015, the applicant wrote to the Director to ask for various clarification and information.  Specifically, he asked for information about the procedure for applying for a reconsideration of his case and said he would, after receiving the relevant information from the Director, make that application for reconsideration.  He asked the Director not to demolish the New Building.[18]

27.  On 25 June 2015, the Director, having received an inquiry from a member of the Legislative Council (“the LegCo”) regarding the applicant’s case as to whether the applicant could be given the opportunity to rectify, made inquiries with her colleagues about the matter.  Having collated the relevant information, the Director told the LegCo member that the applicant’s case does not warrant any exceptional or sympathetic treatment.[19]

28.  On 12 July 2015, the applicant wrote to the Director producing evidence to show (a) a structure that bore a dimension of 11 ft x 18 ft was standing at No 716; and (b) the connecting points between that structure and other extended works showing that he had in fact built an extension to the 11 ft x 18 ft structure.[20]

29.  On 16 July 2015, the applicant notified the Director via email that he had applied for leave to apply for judicial review.[21]

C.   THIS JUDICIAL REVIEW

30.  As I mentioned above, in this judicial review, the grounds of challenge are premised on the applicant’s contention that he should be given an opportunity to respond to the Director’s decision to evict him by issuing the Notice, and the opportunity to seek to rectify the alleged breach of the rule under the Squatter Control Policy.

31.  Central to these contentions is the argument that the Director has adopted a practice or policy to give a reasonable chance to an affected squatter to rectify any irregularities found to have occurred at a SC Surveyed Structure before the Director would take any enforcement or eviction actions.

32.  It is the applicant’s case that such a policy or practice is found in and supported by the answers given by the LandsD’s reply to the Hon Leung Kwok Hung’s question raised during the budget debate for the 2015 - 2016 financial year in the LegCo.

33.  The relevant question and reply are recorded in the document entitled “Reply Serial No DEVB(PL)336” as follows:

“Question

…

(3) Many squatter residents living in the New Territories said that they were not familiar with the law and did not know they were not allowed to repair the squatter structures or raise the roofs without permission. But the structures need to be repaired or the roofs raised for heat insulation in order to improve the living conditions. In the end they were asked by the Squatter Control Unit to demolish their structures. With the clearance and resumption of the land, the residents were made homeless. Given that the residents are not familiar with the law and some alterations (e.g. raising the roofs for heat insulation) are justifiable, will the Government review the existing squatter policy, relax the restrictions or deal with the breaches leniently?

Asked by: Hon LEUNG Kwok-hung (Member Question No. 532)

Reply:

(1) The Government conducted a territory-wide Squatter Control Survey in 1982 (SCS) during which the locations, dimensions, height, building materials and use of squatter structures were recorded (the SCS Record). Those surveyed structures, still unauthorised and temporary in nature, are tolerated until they are required to be cleared for development, environmental improvement or safety reasons, or until they are phased out through natural wastage (e.g. when the structures are not occupied or cease to exist). The locations, dimensions, height, building materials and use of those surveyed structures should comply with the SCS Record. Non-compliance may result in cancellation of the tolerated status of the surveyed structures, deletion of the relevant SCS Record and eventually clearance. The Lands Department (Lands D) does not have readily available statistics giving a breakdown of the number of surveyed structures cleared by the reasons prompting the clearances.

(2) The estimated demolition cost for 2015-16 is about $3 million.

(3) Under the squatter control policy, repair of surveyed structures is allowed, provided that approval of the respective Squatter Control Office is obtained and there is no change-to the location, dimensions, height, building materials and use as recorded in the 1982 SCS. If the surveyed structure deviates from the SCS Record, LandsD will issue a warning letter to the occupier(s) requiring rectification of the irregularities before a specified date, failing which the concerned SCS Record will be cancelled and appropriate enforcement action will be taken by Lands D. In case any occupiers are rendered homeless due to the clearance action, upon referral by Lands D, they will be arranged for admission to the transit centres of the Housing Department. At this stage, the Government has no plan to change the current policy on surveyed structures.” (emphasis added)

34.  Mr Felix Ng for the applicant contends that the answer given in the Reply, in particular at paragraph (3), shows that it is either a policy or practice of the LandsD that, for squatters whose surveyed structured deviates from the Squatter Control Survey Record, it would give them a warning letter asking them to rectify the irregularities before the Squatter Control Survey Record will be cancelled and enforcement action will be taken by the LandsD.

35.  Mr Ng further submits that this Reply was given in the LegCo and thus published to be public.  The applicant therefore has a legitimate expectation that the said policy would be carried out by the LandsD.  In the premises, the Decisions frustrated the applicant’s legitimate expectation, as he was not given a warning or an opportunity to rectify the irregularities found at the Registered Hut before the Director issued the Notice and requiring him to vacate the land the next day.

36.  Further, Mr Ng also relies on a statement made by the LandsD at paragraph 7 of the document prepared by the Hong Kong Housing Authority entitled “Memorandum for the Rental Housing Committee, Squatter Control and Squatter Clearance” dated 11 November 1999 (“the 1999 Memorandum”),[22] to support the proposition that the applicant has a legitimate expectation to be given a chance to rectify any irregularities of the surveyed structure found by the LandsD.  The 1999 Memorandum was presented to the Rental Housing Committee of the LegCo to inform Members of the Committee of “the role of the Housing Department (HD) in undertaking squatter control and clearance functions as well as the current position on the surveyed structures and squatter population in the territory”.[23]

37.  For the present purposes, the relevant paragraphs of the 1999 Memorandum state as follows:

“SQUATTER CONTROL

3. The baseline of squatter control is the Squatter Structure Survey conducted in 1982 covering squatter structures on unleased and undeveloped Government land and private agricultural land only. Squatter structures registered in the Survey are generally termed as ‘surveyed structures’ and are tolerated until they are involved in development clearance or clearance for environmental improvement or safety reasons. Any illegal structures or unauthorized extensions built after 1 June 1982 are subject to enforcement and demolition action when discovered.

4. A Squatter Occupancy Survey was conducted in 1984/85 to freeze the growth of squatter population by registering the particulars of the occupants of the surveyed structures. For years, the term ‘squatters’ has been used to refer to occupants of surveyed structures covered by the 1984/85 Squatter Occupancy Survey. However, the public may have a misconception that squatters are those with pressing housing need, which may not be the case if their structures were on private land and over the years they were given permission to rebuild by the land authority (see paragraph 7 below).

5. The Squatter Structure Survey and the Squatter Occupancy Survey are two of the basic eligibility criteria to determine the rehousing eligibility of the occupants upon clearance. Those not covered by the Squatter Occupancy Survey are only eligible for interim housing (IH) upon clearance, subject to fulfilling other clearance eligibility criteria.

Present Position

6. …

7. Members should note that the Lands Department (LandsD) may occasionally and under certain circumstance regularize new erections or unauthorized extensions to surveyed structures and/or authorize rebuilding of structures by using permanent materials. For these reasons, some surveyed structures on private agricultural lots have become more substantially built over the years. We shall be keeping Members informed of the updated squatter population on Government land from time to time in our future progress reports. Squatter control on Government land is clearly our primary concern rather than private lots.

SQUATTER CLEARANCE

8. As the Government’s clearance agent, the Department will plan, co-ordinate and implement clearance operations upon receipt of clearance applications from LandsD. The squatter clearance programme is worked out in consultation with LandsD, the concerned works departments and the inter-departmental district Land Acquisition and Clearance Committees.

9. Since most squatter clearances are development led, priority will be given to clear the squatter areas where the sites are required for development purposes or where the safety of the squatters are at stake. In the Long Term Housing Strategy White Paper published in February 1998, the Government re-affirmed its determination to solve the housing problem of the remaining squatters over time. The initiatives of the White Paper on squatter clearance programme are as follows –

(a) to remove structures which are exposed to immediate and obvious landslip danger or are vulnerable to landslip (safety clearance);

(b) to clear land for public development (development clearance); and

(c) to remove structures to improve the environment or living standards (improvement clearance).

Squatter Clearance Policy

10. Under the existing policy, HD will carry out clearance in squatter areas subject to the availability of rehousing resources and funding from the LandsD for payment of ex-gratia allowances to eligible clearees. For squatter areas on mixed lots, i.e. private land inter-linked with Government land where surveyed structures were built thereon in a mixed configuration, HD cannot initiate the clearance unless the private lots concerned are resumed for a public purpose.

11. When a clearance is to be conducted in a squatter area, squatters living in affected surveyed structures recorded for domestic purpose before the announcement of the clearance are eligible for rehousing. To prevent a sudden upsurge of impostors from moving into the clearance zones thus increasing the rehousing commitments, it is necessary to conduct a pre-clearance survey to freeze the squatter population. Those moved in after the pre-clearance survey are not eligible for any form of rehousing.” (emphasis added)

38.  Mr Ng draws the court’s attention to paragraph 7 in particular to say it supports the existence of a policy to give a chance to the affected squatter to rectify or regularize “new erections or unauthorized extensions to surveyed structures and/or authorize rebuilding of structures by using permanent materials”.

39.  It is further the applicant’s case that the Director in substance repeated these policies on a radio interview.  See the 3^rd Affirmation of Lau Tong Ming at paragraphs 3 - 4.

40.  In opposition, the Director has in substance submitted that there was no such policy to give an opportunity to the affected squatters to explain or rectify the irregularities, or in any event any such policy does not apply to squatters who are in breach of “the No Extension or New Building Rule”.  Further, even if there is any such operative policy as alleged by the applicant, it was not open to him to rely on it to find the purported legitimate expectation as he had never relied on it, or alternatively he had, in any event, in substance been given a chance to explain before the actual eviction in the present case as demonstrated above.

41.  In my view, given the recent judgment by the Court of Appeal in Wong Ho Tong v Director of Lands [2018] HKCA 330,[24] the applicant’s grounds of judicial review are bound to fail.  I will explain why.

42.  In Wong Ho Tong, Ms Wong (the applicant) was a squatter whose squatter huts were SC Surveyed Structures and thus tolerated under the Squatter Control Policy.  Further, she had also been granted with two government land licences (“the GLLs”) in respect of two other plots of land.  In 2015, after inspection carried to pursuant to some complaints, the LandsD found that the surveyed structures had ceased to exist and substantial works were carried out thereat.

43.  On 21 July 2015, the Squatter Control Office notified the licensees of the GLL that the GLLs were revoked on the ground that there had been unauthorized addition and change of land use.

44.  On 7 August 2015, the Squatter Control Office further notified the occupant of the surveyed structures of the findings and that they intended to cancel the registrations of those surveyed structures.

45.  Ms Wong’s son then wrote to the Squatter Control Office saying that the original structures were damaged and they only carried out repair works.  He asked the office not to cancel the registrations.  After various meetings with the son, the Squatter Control Office maintained the position that the original structures had ceased to exist and, in accordance with the Squatter Control Policy, the registrations should be cancelled.  By a letter dated 25 January 2016, the Office notified the occupant of the decision to cancel the registration on the ground that the structures had ceased to exist.

46.  Thereafter, on 29 April 2016, the LandsD issued a notice under section 6(1) of the LMPO requiring the unlawful occupation of the land in question be ceased.  There were further subsequent meetings and exchanges made between the Squatter Control Office and the applicant’s surveyors.  Ms Wong reiterated that the original structures had not ceased to exist, while the Office maintained its position that they had so ceased to exist.

47.  Thereafter, the LandsD in fact carried out a clearance operation on the land.  The land was repossessed and fenced off by the LandsD despite disruption attempted by Ms Wong’s son and several men.

48.  Ms Wong later wrote through his lawyers to the District Lands Office alleging that an officer of the LandsD had made a representation at a meeting that Ms Wong could restore the structures to the dimensions according to the previous records.  By a letter dated 5 October 2016, the Office refuted the allegation.

49.  On 4 January 2017, Ms Wong acting in person then, sought leave to apply for judicial review in respect of the decision of the Director of 5 October 2016.  The Form 86 did not set out any grounds, while the affirmation in support set out the grounds in the following terms:

“(1) 處方之決定不合邏輯。

(2) 處方之決定沒有充分考慮當時情況。

(3) 處方沒有充分考慮行使酌情權。

(4) 處方之決定不相稱地侵犯本人的住宅及其他房屋。”

50.  The leave application was dismissed by this court.  The court was of the view the application was in effect seeking to challenge the decision to cancel the registration of the surveyed structures, which was made as early as January 2016.  The 2016 October letter issued by the Director was only repeating his position and the events. Hence, the leave application was seriously out of time and there were no good reasons to extend time.  In any event, Ms Wong had failed to provide any arguable grounds to say that the decision was Wednesbury unreasonable.

51.  Ms Wong appealed the refusal of leave to the Court of Appeal.  By then she was represented by counsel, and a completely reformulated draft revised Form 86 was prepared by counsel in support of her leave application and appeal.

52.  The Court of Appeal after hearing counsel on the reformulated grounds dismissed the appeal.

53.  The Court of Appeal first upheld the lower court’s decision on the basis of delay and that there were no good reasons to justify an extension of time to allow Ms Wong to challenge either the decision to cancel the registrations of the surveyed structures, or to revoke the GLLs.

54.  The Court of Appeal then went on to consider the merits of the challenge to the decisions to cancel the registrations under the proposed reformulated grounds.  The court in substance concludes that a decision made in relation to the Squatter Control Policy and the tolerance granted under it is not amenable to judicial review.  The Court of Appeal is of the view that such a decision is akin to the decision made by the Government in relation to the grant or revocation of the GLL, which is well established to be not open to public law challenges.  The court explains its reasons at paragraphs 42 - 48 of its judgment as follows:

“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.

43. In 曾娣對地政總署CACV 17 of 2011, 27 July 2012, the point was not discussed. In Re Wong Kwai Leung HCAL 138/2015, 8 March 2016, G Lam J did not find it necessary to decide the point as he found that there was insufficient public law element to provide the basis for public law challenge to the decision of the Director in that case, see the discussion at [25] to [30] of that judgment. There is nothing in these authorities which is inconsistent with the analysis at [39] above.

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.’

46. In Anderson Asphalt Ltd v Secretary for Justice [2009] 3 HKLRD 215, A Cheung J (as the Chief Judge then was) reviewed the relevant authorities and summarized the principles at [57]. For present purposes, we only need to recap the following propositions set out at sub-paras (a) to (e),

‘(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, p 11h, cited with approval by Mortimer VP in Matteograssi, supra, at p 219C-D.’

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.” (emphasis added)

55.  As explained above, the challenges in the present judicial review are based on the fundamental ground that there is an alleged policy or practice on the LandsD to give a chance to an affected squatter to rectify the registered squatters found to have been in breach of the Squatter Control Policy, or to make a reply before the eviction process is to be carried out.

56.  In my view, the alleged policy to give opportunity, even if existed, must be part and parcel of or related directly to the enforcement and implementation of the Squatter Control Policy. This is clearly borne out by the above quoted paragraphs of the “Reply Serial No DEVB(PL)336” (in particular the words in paragraph (3) of both the Question and Reply quoted in bold) and the Memorandum (in particular its paragraph 1 as recited at paragraph 33 above).  Those statements relied on by the applicant were made in the context of there being a breach or violation of the rules or conditions adopted by the LandsD under the Squatter Control Policy as to what types of unauthorized structured built on Government land will or will not be tolerated, and how the LandsD is to carry out its enforcement under the Squatter Control Policy.

57.  In the premises, given that (as held by the Court of Appeal) the Squatter Control Policy and the decision made in relation to it and the toleration thereunder (including a decision to cancel the relevant registration) is not amenable to judicial review, I cannot see how an alleged policy on how the enforcement of that Squatter Control Policy will be carried out in relation to SC Surveyed Structures that are found to be in breach of the terms of tolerance under the Squatter Control Policy could be subject to judicial review.

58.  Further, the decision to issue the Notice is premised on the Director’s conclusion that the Registered Hut was no longer eligible to be tolerated under Squatter Control Policy as it had breached the No Extension or New Building Rule.  It must be remembered that the Registered Hut has been built on unleased Government land, and has no right to occupy the land.  It had not been previously removed and the occupants not evicted was solely because of the tolerance granted by the Director under the Squatter Control Policy.  Once that tolerance is gone as the Registered Hut no longer falls within the Squatter Control Policy, the Director is entitled to issue the Notice as part of clearance action to enforce the Squatter Control Policy.  The decision to issue the Notice is therefore clearly related to the enforcement and implementation of the Squatter Control Policy.

59.  In the premises, the applicant could not by way of judicial review seek to enforce the alleged policy which said to have given rise to his legitimate expectation.

60.  Mr Ng for the applicant submits that Wong Ho Tong is distinguishable or does not apply in the present case because the ratio of Wong Ho Tong is about the refusal to extend time without good reasons.  Its conclusion on the non-amenability of the Squatter Control Policy and decisions related to it to judicial review is at best obiter, and does not bind this court.

61.  I do not agree.  As I have explained above, the Court of Appeal indeed went on to consider the merits of the grounds of judicial review as reformulated by the applicant’s counsel. Further, it is trite that in considering whether to extend time, it is necessary to take into account merits of the grounds of the challenge.  The court in considering whether it should grant leave to the applicant under the newly formulated grounds notwithstanding the delay then took into account the merits of the challenge, including the consideration as to whether the cancellation of the registration was amenable to judicial review (see paragraphs 28, 35 - 49 of the judgment).

62.  In any event, the reasons given by the Court of Appeal in explaining why decisions made in relation to the Squatter Control Policy or the tolerance thereunder are not amenable to judicial review cannot be faulted.

63.  In the premises, I conclude that the grounds raised by the applicant in this application to challenge the issue of the Notice are not amenable to judicial review, the application must therefore fail.

64.  Alternatively, I further agree with Mr Chan for the Director’s submission that, in light of Wong Ho Tong, the present judicial review application has become academic, and hence the court should not entertain it.  This is because, given the Director’s indisputable judgment that the Registered Hut in the present case had been replaced by a new building,[25] the applicant’s squatter registration is liable to be cancelled irrespective of the outcome of this case, and in that event, the applicant would not have any public law recourse.  In this respect, it is noted that it is the applicant’s own case that the real purpose of seeking to set aside the Decisions is to seek to have an opportunity to reinstate the Registered Hut.[26]

D.     CONCLUSION

65.  For the above reasons, the court dismisses this judicial review.

66.  Given that I dismiss the judicial review on the basis of Wong Ho Tong, which was handed down after the substantive hearing of this application, I think a fair and just costs order in the present case would be no order as to costs.  I therefore further order on a nisi basis that there is no order as to costs of this application (including the costs of the leave application).  The applicant’s own costs be taxed in accordance with legal aid regulations.