R v. THE TOWN PLANNING BOARD AND ANOTHER

1995 No. MP 2457

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HEADNOTE

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Judicial Review - Town Planning Ordinance Cap. 131 - s. 6(6) inquiry, whether judicial, quasi-judicial or administrative - Rules of Natural Justice - Bill of Rights Ordinance, whether Art. 10 applies.

1995 No. MP 2457

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is an application for the judicial review of a decision made on the 21st April 1995 by the Town Planning Board ("the Board") not to propose any amendments to 16 outline zoning plans ("the 16 OZPs") to which the Applicants had objected.

HISTORY

2. On 24th December 1993, the Board gazetted and exhibited the 16 OZPs which affect the development potential of sites in Kowloon and New Kowloon. The Applicant, an Association called "The Real Estate Developers Association of Hong Kong" is composed of members who owned most of the sites affected by the 16 OZPs. It lodged a written statement of objection to the 16 OZPs to the Board under section 6(1) and (2) of the Town Planning Ordinance Cap. 131 ("the Ordinance"), the 16 OZPs having been exhibited in accordance with the provisions of section 5 of the Ordinance.

3. Section 6 is in the following terms :

"6. Consideration of objections

(1) Any person affected by the draft plans so exhibited may within the said period of two months send to the Board a written statement of his objections to anything appearing in the draft plan.

(2) Such written statement shall set out -

(a) the nature of and reasons for the objection;

(b) if the objection would be removed by an alteration of the draft plan, any alteration proposed.

(3) Upon receipt of a written statement of objection under sub-section (1), the Board may give preliminary consideration to an objection in the absence of the objector and may propose amendments to the draft plan to meet the objection.

(4) If the Board proposes an amendment to the draft plan pursuant to sub-section (3), it shall give notice in writing of the amendment proposed to the objector by registered post and may invite the objector to withdraw his objection on the condition that the amendment is made as proposed.

(5) An objector may notify the Board in writing within 14 days after service of notice under sub-section (4) that his objection is withdrawn on the condition that the amendment is made as proposed but if no such notification is received the objection shall continue in force.

(6) Where -

(a) the Board does not propose amendments under sub-section (3); or

(b) an objector does not notify the Board under sub-section (5) that his objection is withdrawn; or

(c) an objector (sic) was conditionally withdrawn under sub-section (5) and the Board does not proceed with the amendment proposed,

the Board shall consider the written statement of objection at a meeting of which the objector is given reasonable notice, and the objector or his authorised representative may attend such meeting and if he desires shall be heard.

(7) In any case where an amendment made by the Board to meet an objection appears to the Board to affect any land, other than that of the objector, held under lease, tenancy or permit from the Crown for a term exceeding 5 years, the Board shall give such notice by service, advertisement or otherwise as it deems desirable and practicable to the owner of the land in question.

(8) Any written objection received within 14 days after the giving of notice under subsection (7) shall be considered at a meeting of the Board of which the original objector and the objector to the amendment are given reasonable notice, and the objectors or their authorized representatives may attend such meeting and if he or they so desire shall be heard.

(9) Upon consideration of an objection in accordance with subsection (6) or (8) the Board may reject the objection in whole or in part or may make amendments to the draft plan to meet such objection."

4. On 9th September 1994, the Board gave preliminary consideration to the Applicant's objections to the 16 OZPs. That was done, in accordance with the provisions of section 6(3), in the absence of the objector. The Board decided not to propose any amendment to the 16 OZPs to meet the objections. That decision was communicated to the Applicant which informed the Board that it was pursuing its objection and requested a hearing under section 6(6).

5. On 6th January 1995 the Board gave further consideration to the Applicant's objection to the 16 OZPs at a hearing held under section 6(6). The Applicant's representatives attended and made written and oral representations. A witness, Mr. Andrew Chan, was called. The Board adjourned the determination of the objection pending further consideration of the possibility of amending the OZPs so as to :-

(a) allow for minor discretionary relaxation of certain proposed restrictions and

(b) facilitate hotel development.

6. There were objections from other parties. On 24th March 1995 the Board gave further consideration to the Applicant's objection and to three other multiple objections at a meeting held in the absence of the Applicant and agreed to defer determination of the 4 objections pending further consideration of other similar objections.

7. The Board on 21st April 1995 gave further consideration to the Applicant's objection and to 7 other objections at a meeting held in the absence of the objectors and decided not to propose any amendment to the 16 OZPs to meet the Applicant's objection. That decision was communicated to the Applicant by a letter of 5th June 1995 and on 2nd September 1995, the Applicant filed its Notice of Application for leave to apply for judicial review.

8. The necessary leave was obtained and on 29th September 1995 the Applicant filed the Notice of Motion herein.

9. On the 7th March 1996 Sears J. ordered that the proceedings, (i.e. the submission of the OZPs in question to the Governor in Council for approval), be stayed until after the determination of the application or until a judge otherwise ordered.

THE APPLICANT'S GROUNDS FOR RELIEF

PLOT RATIO

10. One of the changes effected by the 16 OZPs was the imposition of a maximum plot ratio of 12 for the "Commercial" Zone as opposed to a maximum plot ratio of 15 permitted under the first schedule to the Building (Planning) Regulations, Cap. 123.

11. The Applicant has formally submitted that the Board does not have power to control the plot ratio of buildings. In Attorney-General v. C. C. Tse (Estates) Ltd. [1982] HKLR 7 the Court of Appeal held that the Board does have such power because under section 3 of the Ordinance it has power to make plans for "types of building" and plot ratio is an attribute which is sufficient to make buildings of the same plot ratio fall into a type. The Applicant submits that the case was wrongly decided because "types of building" is not a phrase that is capable of embracing density of development rather than use or style. It points to the Buildings Ordinance Cap. 123 and, in particular, section 38; sections 3, 4, 7, 9 and 12 of the Ordinance, the Building (Planning) Regulations Cap. 123 and, in particular Regulation 21(3) and the first schedule. The Applicant acknowledges that, since this court is bound by the decision of the Court of Appeal, it can do no more than reserve the right to challenge the correctness of the decision before a higher court and accordingly, being bound by authority, I reject its submission.

NATURAL JUSTICE

12. It is contended by the Applicant that the Board must conduct a section 6(6) hearing in accordance with the Rules of Natural Justice, citing Wiseman v. Boreman [1971] AC 297 where at p. 310 Lord Guest said :-

"It is reasonably clear on the authorities that where a statutory tribunal has been set up to decide final questions affecting parties' rights and duties, if the statute is silent upon a question, the court will imply into the statutory provision a rule that the principles of natural justice should be applied."

13. For reasons which appear later in this judgment I find that the Board was not in this case deciding a final question affecting the Applicant's rights.

14. The attack upon the Board's decision under the heading of natural justice falls into two parts; bias and a failure to afford a fair hearing to the Applicant.

Bias

15. It is undoubtedly, as the Appellant submits, a well established principle of natural justice that no person can act as a judge in his own cause. Dimes v. The Grand Junction Canal Co. [1852] 3 HLC 759. I have also been reminded of the maxim that "justice should not only be done but should manifestly and undoubtedly be seen to be done"; per Lord Hewart C.J. in Rex v. Sussex Justices, Ex parte McCarthy [1924] 1 KB 256 at 259. Cases illustrating the application of these principles have been cited, including :-

16. Hannam v. Bradford Corporation [1970] 1 W.L.R. 937

17. Roebuck v. National Union of Mineworkers (Yorkshire Area) [1977] I.C.R. 573 and

18. Roebuck v. National Union of Mineworkers (Yorkshire Area) (No. 2) [1978] I.C.R. 676

19. O'Donoghue v. Veterinary Council [1975] I.C.R. 398 (Irish High Court)

20. Wong Pun Cheuk v. Medical Council of Hong Kong and Anr. [1964] HKLR 47

21. Alkaff and Co. v. The Governor in Council and Ors. [1937] M.L.J. Rep. 202 (Court of Appeal of Singapore) and

22. Rao and Ors v. Andrha Pradesh State Road Transport Corporation and Anr. [1959] A.I.R. 308 (Supreme Court of India)

23. As to the legal definition of bias, the Applicant relies on the decision in Panel of Takeovers and Mergers v. William Cheng Kai Man [1995] 3 HKC 517 following R. v. Gough [1993] AC 646 at p. 670 where Lord Goff of Chieveley said

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and it is desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him."

24. The bias argument centres upon two individuals, namely the Secretary for Planning Environment and Lands (SPEL) and the Director of Planning (DIP). It is contended that when they took part in the Board's decision at the meeting held on 21st April 1995, not to propose any amendment to the 16 OZPs to meet the Applicant's objection, they were judges in their own cause. It is further contended that because of the positions they held justice would not be "seen to be done" if the decision in which they participated were allowed to stand.

25. The legal principles are clear and undisputed. The task of any court faced with an assertion of bias is to apply the legal principles to the facts in the light of the circumstances in which the decision which it is sought to impugn was taken.

26. By section 2(1) of the Ordinance, the Governor was given power to appoint the Board "consisting of such official and unofficial members as he may nominate". Both SPEL and DIP were appointed by the Governor pursuant to this power. Their presence at and participation in the 21st April meeting was accordingly lawful.

27. It is convenient here to set out the first two sub-sections of section 2 of the Ordinance which are in following terms :-

"2. Appointment of Town Planning Board

(1) The Governor may appoint a Town Planning Board consisting of such official and unofficial members as he may nominate, and may appoint any member of the Board, either ex officio or personally, as Chairman or Vice-Chairman and any public officer as Secretary thereof.

(2) 5 members of the Board, one of whom must be the Chairman or Vice-Chairman, shall form a quorum at any meeting of the Board."

28. SPEL was Chairman of the Board and DIP was Vice-Chairman. In view of the provisions of section 2(2) it was essential that either SPEL or DIP be present so as to form a quorum.

29. The purpose of the Applicant's objection was to seek to persuade the Board to change a decision which had been made by, among others, the Chairman and Vice-Chairman. Yet there has been no suggestion from the Applicant that the Chairman and Vice-Chairman should not have taken part in making the original decision. Since one of them had to be there in any event in order to form a quorum it is obvious that they took part lawfully.

30. According to the Board, there is no evidence to suggest a real danger of bias. The mere fact that two members of the Board were government officers is not by itself sufficient.

31. The contention that the mere presence of government officers on the Board prevents it from being independent or impartial was considered by Waung J. in Kwan Kong Co. Ltd. v. TPB [1995] 3 HKC 254. At p. 310 he said :-

"Having regard to the large size of the Board and that the outside members dominate in numbers and most probably also in stature, I really cannot see how it can be said that this Board was not independent or not impartial. Mr. Lee seems to suggest that just because there are government members on the Board, ipso facto the Board is not independent or impartial. I am afraid I do not quite see it that way and much will depend on the circumstances of each case. What must not be overlooked is that in respect of planning matters, so many disciplines come into play. A glance at the list of government members at the meeting will reveal that these are representatives from the different government departments each of which was to make a positive contribution to not only the consideration under section 6(3) and (6) but also under all the relevant provisions of the Planning Ordinance. In making a Town Planning Board better by giving it members from different disciplines including those from the government departments, the Board does not become less independent or impartial."

32. A final point taken on behalf of the Board in this respect is that although the Applicant must have known that one of the members of the Board at the 6th January meeting was DIP it raised no objection to his taking part at that meeting and the Applicant must be regarded, accordingly, as having waived its objection to DIP taking part in the Board's decision upon its objection - R. v. Byles [1912] 77 JP 40.

33. It is true, as the Applicant points out, that the duality of roles played by SPEL and DIP is a matter of choice and not of law for the Ordinance does not require that either of them be members of the Board still less that they be Chairman and Vice-Chairman. The Governor was not obliged to appoint them but he chose so to do.

34. It is said by Mr. Havers for the Board that the objection that SPEL and DIP are judges in their own cause is fundamentally misconceived. Whilst it is conceded that they are official members with roles to play in the government, he submits that their presence on the Board is to be expected. Their respective roles constitute positive reasons for having them on the Board. The legislature envisaged the presence of official members and provided for it.

35. When the Ordinance was extensively amended in 1991 the provisions of section 2(1) were not altered so that they were, in the view of the Board, effectively reaffirmed. Thus, Mr. Havers submits, the legislature has decided whether it is fair or unfair for members of the government to take part in Board decisions. He says that they are statutory appointees but it must be said that although their appointment is authorised by statute it is not required.

36. It was evidently intended by the legislature that the Governor should be free to appoint official members to the Board so that they might not only reflect Government policy but also make a positive contribution by virtue of their past experience and expertise.

37. Mr. Havers submits that SPEL and DIP, having been appointed Chairman and Vice-Chairman are statutory appointees because the appointment is authorised by statute. Again it must be said that whilst the legislation permits their appointment it does not require it and they are not statutory or ex-officio appointees.

38. At any rate, in view of the terms of the Ordinance, it cannot be said that the appointments of SPEL and DIP as members and as Chairman and Vice-Chairman are unlawful in terms of the Common Law. The effect, if any, of the Bill of Rights Ordinance will be discussed later.

39. It is the Board's case that the section 6 procedure is part of the whole drafting process and that there would be no sense in excluding officials from it.

40. Mr. Havers observes that the objection taken by the Applicant applies equally to all the officials who serve on the Board and logically it extends to all Board members, official or unofficial, who approve a draft for they will be judges in their own cause when hearing an objection because, as the Applicant puts its case the plan has become their plan. The fact that, on the Applicant's view of the matter, all those persons may be viewed as judges in their own cause arises out of this statutory scheme and, according to Mr. Havers, is self-evidently lawful. I agree.

The Nature of the Section 6 Exercise

41. It is important to consider the nature of the exercise. The Board contends that it is not judicial or quasi-judicial because, according to the Board, it is not a contest between two parties. Rather than arbitrating a dispute, the Board is giving further consideration to the same matter of planning judgment which was before it when the plan was approved and became the plan, not of the Planning Department, but of the Board.

42. As Mr. Havers puts it, the section 6 objection is not to something which the Planning Department has done but rather to the Board's plan and the issue is between the objector and the Board. Thus the section 6(6) position is bipartite and not tripartite.

43. It is not surprising, in Mr. Havers' submission, that the Planning Department was invited to attend on 6th January when the Applicant attended by Counsel and that the department was asked to indicate its response to the objections. It is suggested that the Board plainly wanted the assistance of the Planning Department and to hear its view as being of relevance to the decision to be made. That does not, in the Board's view, constitute the Planning Department a party in contest with the Applicant in quasi-judicial proceedings. It is pointed out that the report submitted by the Planning Department was expressed to be for the consideration of the Board and was not framed in adversarial language.

44. Mr. Thomas urges the court to look at the reality rather than the technicalities of the situation. Whilst he concedes that strictly speaking the plans are the Board's plans once adopted, the reality is that the Planning Department (which SPEL oversees) commissioned the Kowloon Density Study ("KDS"), which led to the KDS report. Seven officers of the Planning Department were members of a steering group appointed to oversee the KDS. The Planning Department recommended the adoption of the KDS to the Board. It proposed amendments to the 16 OZPs to incorporate the KDS recommendations and it opposed the Applicant's objections to the 16 OZPs. The 16 OZPs, adopted without amendment by the Board on 21st April 1995 were mirror images of the KDS. According to Mr. Thomas when the Board accepted the KDS presented to it by the Planning Department the acceptance could only be provisional because the section 6 process lay ahead. He argues that if the acceptance indicated that the Planning Department was functus then section 6 must be otiose. I cannot see any merit in that argument. Mr. Thomas submits that on any view the Planning Department and the objectors were in reality adversaries, with the dice heavily loaded because of the provisional acceptance.

45. It has never been suggested that SPEL or DIP had any pecuniary interest in the outcome of the section 6 proceedings. The implicit suggestion is that they would have a natural tendency to support the policy of the Planning Department which supported the 16 OZPs and with which they were so closely connected. In this connection the Board relies upon the decision of Woolf J. as he then was in Regina v. Amber Valley District Council ex parte Jackson [1985] WLR 298. In that case, before a District Council were due to consider a planning application, the local group of the political party having a majority on the District Council resolved to support the development. The company seeking permission applied for judicial review by way of an order prohibiting the District Council from considering the planning application on the ground that having regard to the party group's resolution, the council's decision was likely to be biased and unfair and contrary to their duty under section 29(2) of the Town Country Planning Act 1971 to consider timely representations such as those made by the Applicant.

46. Woolf J. held, dismissing the application that the principles of natural justice applied to the consideration of an application for planning permission and, accordingly, in considering the company's application, the district council had a general duty to act fairly, as well as having a specific duty under section 29(2) of the Act of 1971, to consider such representations as the applicant's in that case, which related to and were made within a certain period of the application; that the political predisposition of the majority of council members in favour of the proposed development was not of itself a ground for disqualifying them from adjudicating on a planning application nor was it indicative of unfairness on their part, and, accordingly, in the absence of any other evidence that the council would fail to consider the planning application and the representations thereto on their merits, there were no grounds for the court's intervention.

47. After noting that it was not alleged that any individual district councillor had some personal financial interest, Woolf J. said, at p. 307 :-

"The rules of fairness or natural justice cannot be regarded as being rigid. They must alter in accordance with the context. Thus in the case of Highways, the department can be both the promoting authority and the determining authority. When this happens, of course, any reasonable man would regard the department as being pre-disposed towards the outcome of the inquiry. The department is under an obligation to be fair and carefully to consider the evidence given before the inquiry but the fact that it has a policy in the matter does not entitle a court to intervene."

48. I respectfully adopt that approach in the present case. Mr. Thomas does not criticise the Amber Valley decision but says that his attack is not based on the fact that the Board had a policy. His case is that the Board could not have an open mind when a representative of one of the alleged protagonists, i.e. a representative of the Planning Department, is a member of the "judging team".

49. Mr. Havers argued that the section 6 process was entirely consultative and part of an administrative procedure in relation to which, whilst the rules of natural justice still have a part to play, they are much less stringently applied than they are where the process is quasi-judicial. He submits that there is no conflict of interest involved : all parties are acting for the public good. Attention is drawn to section 3 of the Ordinance which is in the following terms :-

"3. Functions of the Board

(1) With a view to the promotion of the health, safety, convenience and general welfare of the community, the Board shall undertake the systematic preparation of -

(a) draft plans for the lay-out of such areas of Hong Kong as the Governor may direct, as well as for the types of building suitable for erection therein; and

(b) draft development permission area plans of such areas of Hong Kong as the Governor may direct.

(2) In the course of preparation of the plans referred to in subsection (1), the Board shall make such inquiries and arrangements (including, if it thinks fit, the taking of any census of the occupants of any buildings or of the users of any thoroughfares or spaces) as it may consider necessary for the preparation of such drafts."

50. The Applicant, however, maintains that this is not a consultative or purely administrative procedure. Section 6(1) speaks of "any person affected by the draft plan" and says he may send to the Board a written statement of his objections. Section 6(6) gives him a right to attend a meeting at which his written statement of objection is to be heard and provides that if he desires he "shall be heard". It is submitted that because an objector has a right to an oral hearing, this case may be distinguished from the several authorities cited on behalf of the Board where a body having a discretion to manage its own affairs in exercising its function was in a position where it could choose whether or not to grant an oral hearing. Mr. Thomas submits that in cases where an oral hearing at which contestants attend is prescribed by statute that fact is nearly always taken as determinative of the occasion being quasi-judicial. Therefore, he says, a section 6 hearing is a quasi-judicial proceeding. I do not think when one looks at the Board's function in context that the section 6 inquiry is judicial or quasi-judicial. It is an administrative inquiry involving the exercise of judgment in the area of planning policy.

51. As to whether the Planning Department may be regarded as a contestant at the hearing, attention is drawn by Mr. Thomas to the "Guidance Notes on Objection/Review hearing" which were sent to the Applicant under cover of a letter dated 30th December 1994 by the Secretary, Town Planning Board.

52. Paragraph 3 of those notes reads :

"3. The objector(s)/appellant(s), and/or their representative(s) will be invited to the conference room when the Board turns to consider the matter in which the objector(s)/appellant(s) have an interest. The representative(s) of the Planning Department will also be invited to appear before the Board at the same time."

53. Paragraphs 4 and 5 indicate that when the objector or his representative and the representative of the Planning Department are present in the conference room the Chairman will make an opening remark and may invite the representative of the Planning Department to give a summary of the facts and background of the matter under consideration. The objector or his representative will then be invited to make submissions. The Board may then, if it thinks appropriate, invite the representative of the Planning Department to comment on any particular matter which the Board thinks has not been raised previously by, or on behalf of the objector. After the objector and his representative and the representative of the Planning Department has been heard the Chairman and members of the Board may, if they consider it necessary, ask either or both sides questions to clarify particular points. Emphasis placed by Mr. Thomas on the use of the expression "either or both sides" as clearly indicating that the Planning Department representative and the objector are viewed by the Board as contestants. Before the hearing there is normally an exchange of written representations from the objector and of papers produced by the Planning Department. I find that the representatives of the Planning Department were present as advisers rather than as parties to adversarial proceedings.

54. In 1991 the Government published a consultative document entitled "Comprehensive Review of the Town Planning Ordinance". Mr. Thomas points out that at p. 2 of that document para. 1.5 it is said that "the TPB is an independent body, most of whose members are non-officials. They are thus in a position to consider fairly, when conflicts arise, the balance of interest between public and private needs." Thus, it is submitted, the government views the Board as resolving conflicts.

55. Another illustration of the government's view of the Board's function is said to be found in a statement made by SPEL in the Legislative Council on 23rd January 1991. He said, in relation to the Ordinance, :-

"The current Ordinance has been criticised because it Applicant provides for the Board to hear objections to its own plans and to conduct its own reviews of its refusals of planning applications. The Administration accepts as a matter of principle the need for a hearing which is not just fair but seen to be fair for persons aggrieved by the Town Planning Board's decisions. We recognise the importance of an appeals body which can serve as an arbiter between the Board and those whose interests are affected by those decisions. Changes to the existing section 6 objection procedure for the preparation of plans would however require a radical reappraisal of the entire plan-making and approval system and it has been agreed with the ad hoc group that this should best be addressed in the overall review of the Ordinance. On the other hand, the early establishment of an independent body to replace the Governor in Council's role under section 17(7) as the final appeals body to deal with refusals of planning permission is practicable. Accordingly the Government has agreed in principle to introduce in legislative Session, ahead of the overall review, a separate amendment Bill to provide for a new independent appeals body for section 17(7) appeals."

56. Over five years after SPEL's speech, the section 6 procedure remains unaltered.

57. Mr. Thomas submits that an administrative process can contain a quasi-judicial element. In the Indian case of Rao and Ors. v. Andrha Pradesh State Road Transport Corporation and Anr. [1959] A.I.R. 308, the Supreme Court considered the position where there were objections to a scheme put forward by a Regional Transport Authority. There was a statutory procedure for the hearing of objections. K. Subba Rao J., at p. 322 said :-

"The citizen may object to the scheme on public grounds or on personal grounds. He may oppose the scheme on the ground that it is not in the interest of the public or on the ground that the route which he is exploiting should be excluded from the scheme for various reasons. There is, therefore, a proposal and an opposition and the third party, the State Government is to decide that lis and prima facie it must do so judicially. The position is put beyond any doubt by the provision in the Act Rules which expressly require that the State Government must decide that the dispute according to the procedure prescribed by the Act and the Rules framed thereunder, viz., after considering the objections and after the hearing both the parties. It therefore appear to us that this is an obvious case where the Act imposes a duty on the State Government to decide the act judicially in approving or modifying the scheme proposed by the transport undertaking."

58. In further support of the contention that section 6 hearing is quasi-judicial Mr. Thomas points out that if one looks at the guidance notes to which I have already referred or at the minutes of meetings one finds that the Planning Department's representatives are invited to withdraw and come back in on certain occasions. That indicates that they are regarded as being separate from the Board itself. They are separate but that does not mean that they are there defending an interest. They are there to help the Board. I have no doubt that if they had remained while the Applicant's representatives were sent out, the Applicant would complain.

59. In any event, Mr. Thomas rightly says that an administrative tribunal conducting a hearing is under a duty to act fairly and impartially. That is so, but whether it has done so depends on the peculiar facts and circumstances of the case.

60. As to the suggestion that in hearing objections to its own plan, the Board acted as judge in its own cause, that was an inevitable consequence of the statutory scheme. It is clear from the speech of SPEL to the Legislative Council that the government is well aware of the need for justice manifestly to be seen to be done and that it is considering how best to bring about reform. Such reform would entail a recasting of the entire procedure for the production of plans. Changes are clearly envisaged and they ought to come through carefully considered legislation after full consultation. The control of the use of land is of vital importance to Hong Kong. The presence of officials is authorised by statute and I have no doubt that their presence on the Board is of great value. It would not, in my view, be in the interest of good administration for this court by way of judicial review to strike down the decision complained of because of the lawful participation of official members when there is nothing to suggest that they failed to approach their task fairly and impartially. Indeed, the minutes indicate that SPEL and DIP acted with exemplary fairness.

A Fair Hearing.

61. Here the Applicant relies on the maxim audi alteram partem. It complains that certain material, the contents of which had not been revealed to it before the hearing, was placed before the Board. In particular it complains that the Secretary to the Board had prepared Town Planning Board ("TPB") paper 3048 and presented the same to the Board for consideration at its meeting held on 24th March 1995 without revealing the contents to the Applicant and in the absence of the Applicant. It further complains that the Board accepted and considered TPB paper 3048 at the meeting held on 24th March 1995 without giving to the Applicant any opportunity to comment on the same. In particular the Applicant was deprived of any opportunity to :-

(i) Add to, vary, contradict or verify the minutes of 6th January meeting appended to TPB paper 3048; and

(ii) Comment on the other multiple objections to the 16 OZPs referred to in TPB paper 3048.

62. Several cases were cited by Mr. Thomas as illustrations of the application of the "hear the other side" principle.

63. There can be no doubt that, assuming for the sake of argument, that there were two or more sides, the Town Planning Board heard each side.

64. So far as papers prepared for the Board by its Secretary are concerned, they were clearly designed to assist the members of the Board by reminding them of the salient features of the matters to be decided and they made it clear that members should refer to detailed minutes and the full texts of previous papers. There is no suggestion that any minutes were inaccurate or misleading or significantly incomplete.

65. The paper in question included as appendices all the earlier papers prepared for the Board in respect of each of the objections put in, under relevant extracts of the minutes of earlier board meetings where the objection had been considered. I am satisfied that members can have been in no doubt as to the nature of the exercise in which they were engaged.

66. I accept the Board's contention that the provision by the Secretary of the Board of an overview for the members at the 21st April meeting was necessary and desirable if the members were to be able to understand and consider all the issues which was their duty to consider. There is no ground for supposing that their task was anything other than to give separate consideration to each objection.

67. This is not the type of case where a party was not aware of material upon which a decision maker relied and was deprived of an opportunity to respond to it. The Applicant must already have known the substance of the relevant matters referred to in the paper.

68. As to the alleged right of comment on objections put forward by others, it does not exist. See, e.g., the unreported case of US Tobacco v. Secretary of State for Social Security (referred to in the judgment of Taylor L.J. in R. v. Secretary of State for Health Ex parte US Tobacco [1992] QB 353 at 370 that there was "no basis for the contention that each representor should be entitled to see the other representations".

He who decides must hear

69. At the 6th January meeting the Board consisted of :-

(a) The Vice-Chairman (who was also DIP)

(b) The Secretary (who was also the Principal Government Town Planner/District) and also head of the District Planning Branch of the Planning Department.

(c) The following three official members, namely,

(i) The Principal Assistant Secretary (Transport), Transport Branch [who was the alternate member for Deputy Secretary for Transport (Transport Management)];

(ii) The Deputy Director of Environmental Protection [who was the alternate member for Director of Environmental Protection];

(iii) The Director of Lands; and

(d) 16 unofficial members.

70. Leading Counsel appeared for the Applicant and addressed the Board as did an authorized representative of the Planning Department. After the authorized representatives had withdrawn from the meeting the Board decided to adjourn determination of the Applicant's objection pending further consideration as to the possibility of minor relaxation of the restrictions and of special provisions to facilitate hotel development. The Applicant's Solicitors were so informed by letter.

71. On the 21st April 1995, the Board gave further consideration to the Applicant's objection and decided not to propose any amendments to the 16 OZPs to meet the objection. At the 21st April meeting, the Board consisted of :-

(a) the Chairman (SPEL);

(b) Vice-Chairman (DIP);

(c) the Secretary to the Board (who was also the Principal Government Town Planner/District);

(d) five official members, namely,

(i) the Deputy Secretary for Housing;

(ii) the Principal Assistant Secretary (Transport), Transport Branch [the alternate member for the Deputy Secretary for Transport (Transport Management)];

(iii) the Director of Lands;

(iv) the Deputy Director of Environmental Protection [the alternate member for the Director of Environmental Protection];

(v) Assistant Director (2) Home Affairs Department [the alternate member for the Secretary for Home Affairs]; and

(e) 16 unofficial members.

72. The Applicant complains that the composition of the Board at the 21st April meeting was different from the composition of the Board at the 6th January meeting in that :-

(a) the Chairman, the Deputy Secretary for Housing, the Assistant Director (2), Home Affairs Department, and four of the 16 unofficial members did not sit on the Board at the 6th January meeting; and

(b) four of the 16 unofficial members who sat on the Board at the 6th January meeting did not sit on the Board at the 21st April meeting.

73. The absence on 21st April of certain persons who had been present at the earlier meeting is neither here nor there. There was a quorum. Indeed there was a sufficient number of persons who had been at the earlier meeting to form a quorum on 21st April. The more important objection is that members of the Board who had not heard the oral submissions on 6th January took part in the meeting on 21st April when the decision was taken.

74. As was said in Rao and Ors. v. Andrha Pradesh State Road Transport Corporation and Anr. (supra) at p. 327 :-

"Personal hearing enables the authority concerned to ... clear up his doubts during the course of arguments, and the party appearing to persuade the authority by reasoned argument to accept his point of view. If one person hears and another decides, then personal hearing becomes an empty formality ..."

75. It is submitted on behalf of the Board that the fact that a minority of the members who attended the 21st April meeting and took part in the decision complained of had not been present at the 6th January meeting did not render the decision-making process unfair.

76. The first ground for that submission is that the Ordinance does not provide that the membership of the Board at every meeting should be the same. Section 2 empowers the Governor to appoint as many official and unofficial members as he chooses but only five members are required to form a quorum at any Board meeting. It is submitted that the legislature must therefore have envisaged that the Board would be made up of different members at different meetings. I have no reason to doubt that : the number of appointees and the existence of alternate official members is clearly designed to ensure that a balanced quorum may be achieved for any meeting. But that is not the point. Where only written materials are concerned, every member of the Board is in the same position. The Applicant's case is that where an objector exercises his statutory right to make oral submissions to the Board, the principle that he who decides must hear applies. Only persons who had been present on 6th January and had heard all the oral submissions relating to the Applicant's objection should, according to the Applicant, have taken part in the decision on 21st April concerning that objection.

77. As Mr. Thomas has pointed out, the Board's argument would lead to the conclusion that a quorum of five members could hear the oral submissions and a quorum of five different members could then read the minutes of the meeting and make the decision. They would be deciding upon written materials and the Applicant need not have bothered to attend the oral hearing. That is not what occurred in this case. Moreover, at each meeting the official members were outnumbered.

78. The second of the Board's arguments is that the members who attended the 21st April meeting were provided not only with the overview set out in TPB paper 3062 and Appendix 1 thereto but also a previous paper, TPB 2971, the detailed written submissions put in by the Applicant on 6th January and the Appendices thereto and detailed minutes of the 6th January meeting. It is argued that those who were not present on 6th January were in as good a position as all the other members of the Board who attended on the 21st April. The Applicant says that this is no answer. See Re Doyle and Restrictive Trade Practices Commission (1985) 21 D.L.R. 366 at p. 372 :

"... The fact that the Commissioners were able to review the evidence, despite their absence from the hearings, does not mean that the Applicant's application should not be granted since the important thing is to determine whether the three commissioners reviewed the evidence in a manner prescribed by law."

79. In O-Brian v. Canada (National Parol Board) 43 C.R. (3d) 163 (T.D.) at p. 25 :-

"In any event, their knowledge gleaned only from the written record without having heard the Applicant in person, must be deemed to be ignorance sufficient to preclude the exercise of any fair judgment upon the merits of the application. In my opinion, the full panel of floating members of the Board must hear the application and the failure to do so constitutes a violation of the principle of fundamental fairness."

80. That case, unlike the present, involved the liberty of the subject. See also Munday v. Munday [1954] 1 WLR 1078 at p. 1081 and Hughes v. Seafarers' International Union [1961] 31 D.L.R. (2d) 441 (British Colombia Supreme Court).

81. Another argument put forward on behalf of the Board is that no question as to the reliability or credibility of any witness arose in connection with the oral hearing. The Applicant says that that is an irrelevant consideration and that there must be an appearance of justice. I think that the absence of the need to assess credibility or reliability of a witness is a matter to be taken into account.

82. The Board's next point is that the question before it was whether the 16 OZPs should be amended and that was a matter of planning judgment. That is so but the Applicant says that when it exercised its statutory right to make oral submissions to the Board it was entitled to expect that the decision on their objection would be taken by the persons who heard the oral argument. In view of the composition of the Board and the desirability for a contribution to the decision on a question of planning judgment to be made by as many members as possible, that was an unrealistic expectation.

83. A point which Mr. Havers described as being of "utmost importance" is that in order to achieve fairness and consistency between objectors and to ensure that the matters raised were properly considered it was necessary for the Board at one meeting to consider the common issues arising from the multiple objections together, and then to go on, as it did, to consider in the light of those discussions each objection separately. It is submitted that if the Board did not proceed in that way one would have differently constituted boards considering similar issues and there would be a danger of inconsistency of decision-making and unfairness between objectors. Six different objections had gone to a hearing and, according to Mr. Havers, it would be likely, if not certain, to be impossible to provide the same membership for the various meetings and for the meeting at which all objections were considered together before they were disposed of one by one. With 31 very busy members it would have been almost inevitable that membership would have been different at different meetings. If, which is not admitted by the Board, there was any disadvantage arising in the procedure adopted, it must be weighed against the considerable advantage (fairness and consistency) to be derived from the procedure adopted.

84. The Applicant's answer is that inconvenience is no excuse. See R. v. Huntingdon Confirming Authority [1929] 1 KB 698 and Regina v. Committee on Works on Halifax City Council Ex parte Johnston [1962] 34 D.L.R. 2(d) 45 (Nova Scotia Supreme Court). I agree that mere inconvenience is no excuse but practicability is a question to be considered, as is the advantage to be derived from the procedure adopted.

85. I am not persuaded that it was not practicable to restrict voting upon a particular objection to those who had heard the oral submissions made by the objector in question but there was a broader dimension to the Board's task and other materials from different sources needed to be considered in a consistent manner.

86. Another ground put forward on behalf of the Board was that it would not have been in the interest of the community as a whole whose health, safety, convenience and welfare the Board was duty bound to promote if a piecemeal approach had been adopted. See Bushell and Anor. v. Secretary of State for the Environment [1981] AC 75 at p. 95 :-

"What is fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter."

87. Mr. Havers argued that if the minority of the Board meeting on 21st April had not heard the oral submissions, the effect would be marginal, not only because the question is a question of planning judgment but also because three months had elapsed since the majority had heard the oral submissions as a result of the decision being deferred. The oral submissions must have been dimmed by the passage of time so that in substance the minority were in as good a position as the majority. I do not think that the point is a strong one. If the people who met on 21st April had in fact met on 7th January to consider the events of the previous day, at least those members who had been present on 6th would have had fresh in their minds the impression made by the oral submissions made on behalf of the Applicant. But the presence of the others would on the Applicant's case have violated the principle that "he who decide must hear", however well briefed they might have been. From the point of view of the Applicant, the delay of three months made things worse. Not only was the decision being made by a body including persons who had not heard the submissions but even those who had heard the submissions were considering them three months later and, according to the Board's argument, the effect of hearing them would have faded in their minds.

88. Mr. Havers also argued that the Board was not making a final decision on the Applicant's rights because the final decision rests with the Governor by virtue of section 8 of the Ordinance. The Board's decision is final in that it decides what to recommend to the Governor. It is not final as being determinative of the rights of the Applicant for that decision will be made by the Governor after considering the recommendations of the Board. It is true that a draft OZP does have immediate effect : see section 13, 20(5) and 20(7) of the Ordinance. That effect, however, is purely temporary and of limited duration. I do not accept the suggestion made by Mr. Thomas that any draft OZP submitted to the Governor will inevitably be approved.

89. I decline to speculate as to whether, if all those present at the 21st April meeting had heard the oral submissions, the decision would have been any different. This is not an appeal on the merits from the Board's decision.

90. Mr. Havers referred to the various cases cited by Mr. Thomas in relation to the "he who decides must hear" issue. He pointed out that they referred to proceedings very different from those under consideration here and he showed how they could be distinguished upon their facts. I regard them as merely illustrating the well-known principle that "he who decides must hear". It is true that the Applicant's cases mainly concerned judicial bodies or quasi-judicial proceedings and in some the liberty of the subject was involved.

91. Mr. Havers submits that in a case such the present one decisions relating to administrative decisions might be more helpful. In that connection he cited the Privy Council case of James Edwards Jeffs and Ors. v. New Zealand Dairy Production and Marketing Board and Ors. [1967] 1 AC 551. There a statutory board, which had power to define areas from which particular factories could get cream and milk, had a committee consisting of three of its members which investigated questions of supply. That committee held a public inquiry at which the appellants in the case, all farmers in the district, gave evidence. The committee made a written report to the Board, recommending certain zonings on certain conditions. The Board accepted the committee's recommendations and made zoning orders. The Board did not see the written statements produced by the witnesses at the hearing; its members, other than the members of the committee, were not informed of the evidence given; the report stated what submissions had been made at the hearing but did not state what evidence was given, nor did it contain a summary of the evidence, nor did the Board see written submissions which were sent in.

92. It was held that, while the Board could regulate its procedure as it thought fit, e.g. by hearing the interested parties orally or by receiving written statements from them, or by appointing a person to hear and receive evidence of submissions from interested parties for their information, in determining zoning questions affecting the rights of individuals it was under a duty to act judicially and it had failed to discharge that duty in that it had reached its

decision without consideration of, and in ignorance of, the evidence, and had thus failed to hear the interested parties. In delivering the judgment of the Privy Council, Viscount Dilhorne said at p. 568 :-

"Whether the Board heard the interested parties orally or by receiving written statements from them is, as Hamilton L.J. said in Rex v. Local Government Board, Ex parte Arlidge [1914] K.B. 160, a matter of procedure. Equally it would have been a matter of procedure if the Board had appointed a person or persons to hear and receive evidence and submissions from interested parties for the purpose of informing the Board of the evidence and submissions (see Osgood v. Nelson [1872] L.R. 5 HL 636 HL, and Rex v. Local Government Board, Ex parte Arlidge.) This procedure may be convenient when the credibility of witnesses is not involved, and if it had been followed in this case and as a result the Board, before it reached a decision, was fully informed of the evidence given and the submissions made and had considered them, then it could not have been said that the Board had not heard the interested parties and had acted contrary to the principles of natural justice. In some circumstances, it may suffice for the Board to have before it and to consider an accurate summary of the relevant evidence and submissions if the summary adequately discloses the evidence and submissions to the Board.

Unfortunately, no such procedure was followed in this case. The committee was not appointed by the Board, nor was it asked by the Board to receive evidence for transmission to it. The committee's report did not state what the evidence was and the Board reached its decision without consideration of and in ignorance of the evidence.

The Board thus failed to hear the interested parties as it was under an obligation to do in order to discharge its duty to act judicially in the determination concerning applications."

93. There is no doubt in my mind that the evidence before me establishes that all those present on 21st April and taking part in the decision not to amend the 16 OZPs were fully apprised of all the representations both oral and written which the Board had up to that time received in connection with the Applicant's objection. It is particularly important that the credibility of witnesses was not involved. It is clear that the Applicant's case received full and fair consideration.

94. Whilst it is true that in the present case the Board had a statutory duty to grant an oral hearing whereas in the Jeffs case the Respondent Board was master of its own procedure, an oral hearing is nevertheless an oral hearing whether it be a statutory requirement or not. The Board in this case derives assistance also from the decision of the English Court of Appeal in Regina v. Race Relations Board, Ex parte Selvarajan [1975] 1 WLR 1686. That is not because the facts are similar. The Conciliating Committee in Selvarajan was master of its own procedure and did not hold an oral hearing. Certain members only of the Board in making a decision in that case received a full set of papers. Lord Denning M.R. said, at pp. 1695 and 1696 :-

"The most troublesome point is that several members of the Board did not have all the papers. Four of them only had the summary of a "clearly predictable case" of 11/2 pages and a recommendation that the Committee should form the opinion of no unlawful discrimination. It may reasonably be inferred that these four were not in a position to form an opinion of their own. They must have gone by the opinion of the other three members who had received all the papers and had read them.

If this had been a judicial body, I do not think this would be right. Every member of a judicial body must have access to all the evidence and papers in the case, he must have heard all the arguments, and he must come to his own conclusion. The maxim delegatus non potest delegare applies strictly to judicial functions. But it is different with a body which is exercising administrative functions or which is making an investigation or conducting preliminary inquiries, especially when it is a numerous body. The Race Relations Board has 12 members. The Employment Committee has 7 members. It is impossible to suppose that all of them need sit to determine a matter or that all of those who sit should have read all the papers or heard all the evidence. But I do think that two or three, at any rate, must have done so. If there is a quorum of, say, three, I should think a quorum must have done so. That is the ordinary accepted method of carrying on business. It should be applied here, also. We were referred to Jeffs v. New Zealand Dairy Production and Marketing Board [1967] 1 A.C. 551. But in that case, on the construction of the relevant statute, the board had no power to delegate its functions. It was necessary, therefore, for the board at least to have an accurate summary of the evidence and of the submissions. But in the present case the Board undoubtedly had power to delegate its functions."

Lawton L.J. agreed and said :-

"I have used the adverb 'unfairly' in preference to the Applicant's phrase 'contrary to the Rules of Natural Justice' for the reason I gave in Maxwell v. Department of Trade and Industry [1974] Q.B. 523, 539. The Applicant's phrase is liable to lead courts into the trap of legalism. The common sense of the British people has appreciated that there are circumstances in which over-strict attachment to legal forms can hinder the doing of what should be done".

95. The message is that the Courts must not permit themselves in the exercise of their discretion, where fairness is an issue, to be hedged in by the decisions of other tribunals in other cases on different facts. One must look at the case in hand and, considering the whole of the circumstances, form a judgment as to whether the tribunal in question has acted fairly.

96. In Reg. v. Preston B. C., ex p. Quitelynn Ltd. [1985] 83 LGR 308, C.A., a local authority had delegated its power to grant or refuse licences to a committee. That committee had authorised the setting up of a licensing panel consisting of 5 committee members and it was empowered to consider all applications and to make recommendations. There was an oral hearing before the licensing panel which made the recommendation to the committee. When the committee met, it voted, with one abstention, to refuse their application. There had been no discussion and no report by the members of the panel all of whom were present at the meeting. It was held that it was requisite that the Applicant's representations should be considered by the committee making the decision and since no report of any kind was made to the decision-making committee there was a breach of the procedural rules which could not be cured and which vitiated the decision arrived at.

97. Stephen Brown L.J. said :-

"On this occasion the uncontested facts show that no report of any kind was made to the decision-making committee. It may be that a report could have been a very short report indeed, but in my view it is a requisite of the sub paragraph that the applicants' representations should be considered by the committee making the decision. In this case no report of any kind was made."

98. A further example of the judicial attitude to questions concerning administrative functions is to be found in the following passage (to part of which I have already referred) from the speech of Lord Diplock in Bushell and another v. Secretary of State for the Environment [1981] AC 75 at p. 95 :-

"In exercising that discretion, as in exercising any other administrative function, they owe a constitutional duty to perform it fairly and honestly and to the best of their ability, as Lord Greene M.R. pointed out in his neglected but luminous analysis of the quasi-judicial and administrative functions of a minister as confirming authority of a compulsory purchase order made by a local authority, which is to be found in B. Johnson & Co. (Builders) Ltd. v. Minister of Health [1947] 2 All E.R. 395, 399 - 400. That judgment contains a salutary warning against applying to procedures involved in the making of administrative decisions concepts that are appropriate to the conduct of ordinary civil litigation between private parties. So rather than use such phrases as 'natural justice' which may suggest that the prototype is only to be found in procedures followed by English Courts of Law, I prefer to put it that in the absence of any rules made under the Tribunals and Inquiries Act 1971, the only requirement of the Highways Act 1959, as to the procedure to be followed at a local inquiry held pursuant to Schedule 1, paragraph 9, is that it must be fair to all those who have an interest in the decision that will follow it whether they have been represented at the inquiry or not. What is a fair procedure to be adopted at a particular inquiry will depend upon the nature of its subject matter."

99. In Russell v. Duke of Norfolk and others [1949] 1 All E.R. 109 Tucker L.J. said at p. 118 :-

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting its case. I think from first to last the plaintiff did have such an opportunity."

100. In the present case, taking the approach illustrated in the cases concerning administrative inquiries to which I have referred, I am not persuaded that in the circumstances the Applicant did not have a reasonable opportunity of presenting its case.

The "Raw Data".

101. Another independent ground of complaint is that the Applicant was deprived of the 'raw data' or Technical Appendix and other information on the KDS study despite specifically asking for the same prior to the hearing of 6th January 1995 when it presented its written and oral submissions.

102. This is not a complaint about the Board at all. Before the hearing, it was to the Planning Department that the Applicant applied for information. The Applicant appears in this instance to be treating the Planning Department and the Town Planning Board as one and the same but for the purposes of other arguments it contends that there was an adversarial contest between the Planning Department and the Applicant, presided over by the Town Planning Board. It is clear that whilst certain individuals from the Planning Department performed roles in the Town Planning Board the two bodies are quite separate and any failure on the part of the Planning Department cannot be attributed to the Board. The Applicant, in support of its complaint, cites the decision of Sears J. in Caltex Oil Hong Kong Ltd. v. Governor in Council [1995] 1 HKC 80. That was a case where an objector to the building of a proposed road was held, on the evidence, not to have been provided with sufficient information in time to respond to an assertion by the consultant of the Highways Department over perceived geotechnical problems. The judge felt that the objector had not had a 'fair crack of the whip', an expression used in Fairmount Investments v. Secretary of State for the Environment [1976] 2 All E.R. 865. In that case, Lord Russell at p. 874 said :

"All cases in which principles of natural justice are invoked must depend on the particular circumstances of the case. I am unable in the instant case to generalize. I can only say that in my opinion, in the circumstances I have outlined, Fairmount has not - in a phrase whose derivation neither I nor your Lordships could trace - a fair crack of the whip."

103. One cannot generalize. The decision of Sears J. was made in the light of the circumstances of the case before him. The present case is different. Looking at the circumstances of the present case, I am satisfied that the Applicant had a fair crack of the whip.

THE BILL OF RIGHTS.

104. It is the Applicant's case that its right to a fair hearing by a competent, independent and impartial tribunal as guaranteed by Art. 10 of the Bill of Rights ("BOR") has been violated.

105. Art. 10 provides :-

"All persons shall be equal before the Courts and Tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

106. The Board is a tribunal established by law. When carrying out a section 6 inquiry it is independent and competent. As may be seen from my findings in relation to arguments based upon the Common Law, I am satisfied that in the inquiry in question the Board was impartial. If I am wrong on any of those points, the key question is whether the exercise upon which the Board was engaged in the section 6 inquiry was one which entailed the determination of the Applicant's rights and obligations in a suit at law.

Rights and Obligations

107. The Applicant contends that the rights of its members are affected by the OZPs. I find, taking a generous and purposive approach to interpretation, that the section 6(6) inquiry did relate to rights of members of the Applicant relating to their ownership of land. I thus share the view expressed by Rhind J. in Auburntown Ltd. v. Town Planning Board [1994] 2 HKLR 272 based upon a number of European decisions such as E G Oerlemans v. The Netherlands [1991] 15 EHRR 561 and Pine Valley Development v. Ireland [1991] 14 EHRR 319.

A Suit at Law.

108. The Applicant submits that the Court must adopt a special approach to the interpretation of the BOR because it is a constitutional document. In R. v. Sin Yau Ming [1992] 1 HKCLR 127, Silke, V.-P. said at p. 139 :

"We are here concerned with a constitutional document even though brought into force by an Ordinance. It is nevertheless established as a self-contained document by virtue of the provisions of the Letters Patent and section 8 of The Hong Kong Bill."

109. At p. 140 he said that the BOR should be treated "as being sui generis". Kempster J.A. adopted a similar approach.

110. In Attorney-General v. Lee Kwong-kut [1993] AC 951 Lord Woolf said at p. 965 :

"In Reg. v. Sin Yau-ming [1992] 1 H.K.C.L.R. 127 the Court of Appeal (Silke V.-P., Kempster and Penlington JJ.A.) gave admirably clear judgments which were intended to provide guidance to the Hong Kong Courts as to the proper approach to the application of Art. 11(1) of the Hong Kong Bill. ...

Although this is the first appeal in which the Hong Kong Bill has been considered by the Board, the Board has had from time to time to consider earlier constitutional orders which contains similar provisions and in his judgment in the Sin Yau-ming case, Kempster J.A. at p. 155 referred to the general approach to the interpretation of constitutions and bills of rights, indicated in the previous decisions of the Board in Minister of Home Affairs v. Fisher [1980] A.C. 319 and Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689. In Minister of Home Affairs v. Fisher [1980] A.C. 319, 328, in relation to the Bermuda Constitution Order 1968 (S.I. 1968 No. 182), Lord Wilberforce stated, of instruments of this nature, that they "call for a generous interpretation avoiding what has been called "the austerity of tabulated legalism," suitable to give to individuals the full measure of the fundamental rights and freedoms referred to."

111. In Attorney-General of The Gambia v. Momodou Jobe [1984] A.C. 689, 700, Lord Diplock said :

"A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction."

112. There is nothing new about giving a generous and purposive interpretation to Hong Kong legislation. Section 19 of the Interpretation and General Clauses Ordinance Cap. 1 is in the following terms :-

"19. General Principles of Interpretation

An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit."

113. Mr. Havers has accepted that there should be a purposive approach but submits that a purposive construction is only one of the available techniques and if the language of the Ordinance will not stretch far enough to embrace the meaning for which the Applicant contends, it is not permissible, even on a generous and purposive approach to rewrite the Ordinance.

114. Silke, V.-P., in R. v. Sin Yau-ming (supra) said at p. 141 :

"In my judgment, the glass through which we view the interpretation of the Hong Kong Bill is a glass provided by the Covenant. We are no longer guided by the ordinary cannons (sic) of construction of statutes nor with the dicta of the Common Law inherent in our training. We must look, in our interpretation of the Hong Kong Bill, at the aims of the Covenant and give 'full recognition and effect' to the statement which commences that Covenant. From this stems the entirely new jurisprudential approach to which I have already referred."

115. In the passage which follows those remarks, set out under the heading "Guidance in Interpretation of the Hong Kong Bill - " Silke V.-P. indicated that guidance might be derived from decisions taken in Common Law jurisdictions which contain a constitutionally entrenched bill of rights as well as decisions of the European Court of Human Rights and the European Human Rights Commission. He also referred to comments and decisions of the United Nations Human Rights Committee. He regarded none of those sources as binding but considered them to be of the greatest assistance. He accepted, however, that the approach of the bodies other than the Common Law courts referred to differs from that of a domestic court. The theme was taken up by Lord Woolf in Lee Kwong-kut (supra). He said that the types of decision referred to by Silke V.-P.

"Can give valuable guidance as to the proper approach to the interpretation of the Hong Kong Bill, particularly where the decisions in the other jurisdictions are in relation to an article in the same, or substantially the same terms as that contained in the equivalent provision of the Hong Kong Bill. However, it must not be forgotten that decisions in other jurisdictions are persuasive and not binding authority and that the situation in those jurisdictions may not necessarily be identical to that in Hong Kong. This is particularly true in the case of decisions of the European Court of Human Rights, as Silke V.-P. recognized. The European Court of Human Rights is not concerned directly with the validity of Domestic Legislation but whether, in relation to a particular complaint, a state has in its domestic jurisdiction infringed the rights of a complainant under the European Convention; whereas, in the case of the Hong Kong Bill, the Hong Kong courts, and on appeal the Board, have to determine the validity of domestic legislation having regard to the entrenched provisions of the Hong Kong Bill".

116. Lee Kwong-kut was a criminal case and the article in question was Art. 11(1) and I am conscious of the fact that the words which I am about to quote were uttered in that context. It is, however, worth noting as a general proposition what Lord Woolf said at p. 975. He said :-

"While the Hong Kong judiciary should be zealous in upholding an individual's rights under the Hong Kong Bill, it is also necessary to ensure that disputes as to the effect of the Bill are not allowed to get out of hand. The issues involving the Hong Kong Bill should be approached with realism and good sense, and kept in proportion. If this is not done the Bill will become a source of injustice rather than justice and it will be debased in the eyes of the public".

117. As to the meaning of "suit at law" Mr. Havers submits that the phrase in question should be looked at in the context of the whole of Art. 10. Read as a whole the article clearly refers to judicial or quasi-judicial proceedings. It speaks of "the courts and tribunals". It speaks of the determination of a criminal charge or of rights and obligations in a suit at law. It provides for the exclusion of press and public from a trial and refers to "any judgment rendered in a criminal case or in a suit at law". A section 6(6) inquiry is an administrative proceeding and the fact that the Ordinance affords to objectors an opportunity to make oral representations does not alter its character. To say that it is a "suit at law" goes beyond the bounds even of a generous and purposive interpretation.

118. A consequence of the approach to interpretation envisaged by Silke, V.-P., in Sin Yau-ming (supra) is that a term in the Bill of Rights Ordinance may have an autonomous meaning, different from any meaning ascribed to the same term in domestic law. On that basis, it is contended for the Applicant that "suit at law" means something other than that which it appears to mean.

119. The long title to the Hong Kong Bill of Rights reads "an Ordinance to provide for the incorporation into the Law of Hong Kong of Provisions of the International Covenant on Civil and Political Rights as applied to Hong Kong; and for ancillary and connected matters." There is a French version of the International Covenant on Civil and Political Rights ("ICCPR") and the relevant French text which appears in the ICCPR appears also in Art. 6(1) of the European Convention on Human Rights ("ECHR"). The English text of Art. 6(1) of EHCR is "in the determination of his civil rights and obligations" the argument, which Rhind J. accepted in Auburntown is that since the French text is the same in both Covenants, the various parties to each Covenant must have intended the words "rights and obligations in a suit at law" and "civil rights and obligations"; to mean the same thing, so that the determination of civil rights and obligations in any forum in the course of any type of proceeding is contemplated. The argument was also accepted by Judge Cheung (as he then was) in the District Court case of Commissioner of Inland Revenue v. Lee Lai-ping, [1993] 3 HKPLR 141 at p. 147. It appears to me, however, that it may and more convincingly be said, that the EHCR version, when seen in its context, refers to a determination of civil rights and obligations in judicial or quasi-judicial proceedings.

120. Waung J. in Kwan Kong Co. Ltd. v. Town Planning Board [1995] 3 HKC arrived at a similar conclusion and, though I would respectfully part company with him, having regard to the dicta in Sin Yau-ming and Lee Kwong-kut, when he says at p. 291 of the report that "the Court should interpret this Ordinance in the same way as it interprets any other ordinance of Hong Kong, namely, with established rules of interpretation of the Common Law", I entirely agree with him when he says at p. 292 :-

"An interpretation by resorting to what is desirable as being equivalent to what is in the statute would amount to judicial legislation under the guise of autonomous interpretation."

121. Determination

122. As Rhind, J., said in Auburntown Ltd. v. Town Planning Board (supra) at p. 293 :-

"A valid point made on the Applicant's behalf in relation to s.6 of T.P.O. is that the way it requires the compulsory resolution of disputes arising from objections is suggestive of the Board there performing an adjudicative role. While, however, the requirement to reach a decision is a necessary condition to qualify a tribunal as making a 'determination', it is not a sufficient condition. There has to be the further condition that the tribunal's finding must be decisive in relation to the dispute."

123. The Board's decision is decisive on the question whether the draft plan should go to the Governor amended or unamended but it is not decisive of the question of the final form of the OZP. That decision which does determine rights is for the Governor in Council. Section 8 of the Ordinance provides :-

"8. Submission of considered draft plan to Governor in Council

After consideration of all objections, the Board shall submit the draft plan, with or without amendments, to the Governor in Council for approval, and shall submit therewith -

(a) A schedule of the objections (if any) made under section 6 and not withdrawn;

(b) A schedule of the amendments (if any) made by the Board with a view to meeting such objections."

124. Section 9 reads :-

"9. Powers of Governor in Council upon submission

(1) Upon submission of a draft plan the Governor in Council may -

(a) approve it;

(b) refuse to approve it;

(c) refer it to the Board for further consideration and amendment."

125. There was no determination of the Applicant's rights by the Board.

Right of Access to a Court

126. There was argument before Waung J. in Kwan Kong Co. Ltd. v. Town Planning Board as to whether the section 6(6) machinery of the Ordinance satisfied the alleged requirement in Art. 10 that a competent, independent and impartial tribunal be established by law. Waung J. dealt with the arguments and came to the conclusion that Art. 10 does not give rise to any right of access to a court. He put considerable emphasis on the dissenting judgment of Sir Gerald Fitzmaurice in Golder v. United Kingdom [1975] 1 EHRR 525 and he cited the following passage from that judgment :-

"There is a considerable difference between the case of 'law-giver's law' edicted in the exercise of sovereign power, and law based on convention, itself the outcome of a process of agreement, and limited to what had been agreed, or can properly be assumed to have been agreed. Far more interpretational restraint is requisite in the latter case, in which, accordingly, the convention should not be construed as providing for more than it contains, or than is necessarily to be inferred from what it contains ... and the word 'necessarily' is the decisive one."

and :-

"Once wide interpretations of the kind now in question are adopted by a court without the clearest justification for them based solidly on the language of the text or on necessary inferences to be drawn from it, and not, as here, on a questionable interpretation of an enigmatic provision, considerations of consistency will thereafter make it difficult to refuse extensive interpretations in other contexts where good sense might dictate differently : freedom of action will have been impaired."

127. Sir Gerald Fitzmaurice was dealing with Art. 6(1) of the ECHR but his reasoning applies equally to Art. 10 of the Bill of Rights Ordinance.

128. For my part, I share the reluctance of Waung J. to indulge in what he calls the "judicial activism" which is apparent in several European decisions cited to me, none of which are binding upon this Court.

129. As to whether the Hong Kong Government has failed in its alleged duty under Art. 10 to provide a suitable tribunal for a final determination of the rights of the Applicant in this case, that question falls outside the scope of the application for judicial review.

130. It seems to me that the ICCPR constitutes a minimum guarantee; the lowest common denominator which could be found acceptable to all those who acceded to it. The fact is that the Common Law affords ample protection for citizens who find themselves parties not only to judicial and quasi-judicial proceedings but also to administrative proceedings. The Common Law, however, can be overridden by statute and the most important effect, as it seems to me, of the BOR is that it puts an obstacle, even if it be not insurmountable in the way of any legislature which seeks to remove those rights protected both by the Common Law and the BOR.

131. An argument based on the rules of natural justice which will not succeed on the basis of the Common Law is unlikely to be improved by the invocation of the Bill of Rights Ordinance. It is a matter for regret that it has become the fashion to prolong litigation, thereby causing unnecessary expense, by piling upon respectable Common Law arguments optimistic submissions based on the Bill of Rights. In the present case, copies of the reports of over 80 decisions were tendered by the Applicant and about half of them related to the Bill of Rights. Once the Common Law arguments were disposed of, the Bill of Rights arguments were academic.

132. Art. 10 has no application to section 6(6) proceedings. Furthermore, there exists in relation to section 6(6) proceedings an opportunity to apply for judicial review.

133. The Applicant's position with regard to judicial review is that it is insufficient to answer any argument based on Art. 10 because judicial review is not concerned with the merits of a decision. In that regard the Applicant included in its authorities the decision of the European Court of Human Rights in Weeks v. United Kingdom [1987] 10 EHRR 30 and W. v. United Kingdom [1987] 10 EHRR 30. Mr. Havers submits, however, that the European Court has moved away from the position which it occupied in 1987 and is now prepared to hold in some cases that the availability of judicial review will suffice, especially where the original decision was administrative, where the dispute is between an individual and a public authority and the original decision involves questions of "expediency". He suggests that, in this context, the term "expediency" equates with the common Law notion of "public interest", and cites in support of his argument the decision of the European Court in Zumtobel v. Austria [1994] EHRR 116; a similar decision in Oortenberg v. Austria [1995] EHRR 524 and the case of Bryan v. United Kingdom, decided in November 1995 (ECHR 44/1944/491/573). The availability of judicial review in a case such as the present one is a material consideration when the question of determination is considered.

CONCLUSION

134. I am not satisfied that the Applicant has been denied a fair hearing by a competent, independent and impartial tribunal or that justice has not been seen to be done. The statutory objection procedure set out in section 6 is carried out by a body the membership of which is permitted by statute to include civil servants. The mere presence of civil servants on the body is no ground for overturning its decisions. SPEL and DIP when lawfully acting as members of the Town Planning Board are not acting as members of the Planning Department of Government. Members of the Planning Department who are called upon to assist the Town Planning Board in its deliberations are not acting in furtherance of some private interest of the Planning Department : they are serving the public interest in putting their knowledge and expertise at the service of all the members of the Board. In the peculiar circumstances of Hong Kong, it is unreal to regard their presence on the Board, which is authorised by statute as necessarily importing systemic bias.

135. Whatever might be the impression of an observer who was not in possession of the full facts, I am satisfied that there was no real danger of bias on the part of SPEL and DIP.

136. The Board did not make a final determination of the rights of any member of the Applicant. It was conducting an administrative consultative process, provided by statute, designed to enable it to take into account all shades of opinion before forming a view as to the final form of its recommendations to be made to the Governor in Council.

137. The fact that the draft OZPs had a temporary effect, by virtue of ss. 13, 20(5) and 20(7) of The Ordinance, upon the rights of the members of the Applicant is not conclusive. It is clearly necessary and in the public interest, for obvious reasons of expediency, to prevent pre-emptive attempts at development inconsistent with a draft plan in the interval between its adoption by the Board and its consideration by the Governor in Council.

138. The application for judicial review is dismissed. There will be an order nisi that the Respondent's costs of the application be taxed if not agreed and paid by the Applicant. The case is certified fit for two counsel.