HO SUM KEUNG v. DIRECTOR OF LANDS

HCAL 2/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2 OF 2006

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J U D G M E N T

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1.  As this is only an application for leave to apply for judicial review, I will be brief with my reasons.

2.  The background facts can be found in my judgment given in HCAL 123/2003 between the same parties on 27 May 2005.  For all practical purposes, this application for leave to launch a fresh judicial review application is a sequel to the last set of proceedings.

3.  In my order dated 27 May 2005 given in HCAL 123/2003, I ordered, amongst other things, that the Director of Lands reconsider and determine the application of the applicant on behalf of the estate of Tsang Fuk Lin, deceased, for land exchange entitlements, or for cash compensation in lieu thereof, in respect of a number of resumed lots of land in the New Territories, under the Government’s “Modified Letter B” scheme (MLB scheme).

4.  I further ordered that the Director reconsider the application in accordance with the “wholly unavoidable delay” criterion set out in “Lands Instruction E-13” (E-13) as it had been implemented throughout the years, both before and after the expiry of the deadline of 31 March 1992, when the MLB scheme of was in place.

5.  In paragraph 116 of my judgment, I said as follows:

“The Government cannot be held to the represented criterion of due diligence in the reconsideration directed by this Court of the 2003 application.  Substantive fairness in the present case does not require that.  Fairness only requires that the Applicant be duly informed of the reversion to the prescribed criterion in E-13 (the unavoidable delay requirement) and be given an opportunity to make further representations and submit further materials in support of his 2003 application by reference to the wholly unavoidable criterion.  Further, in line with the duty to act fairly, the Government should afford the Applicant an opportunity to address any specific concerns that the Government, after receipt of all further representations and materials from the Applicant, may entertain and that may be weighing against the grant of the application.  As indicated above, one round of opportunity should satisfy the requirement of the duty to act fairly.”

6.  In accordance with what I said in paragraph 116, by letter dated 13 October 2005, the Director of Lands invited the applicant to make further representations and submit further materials in support of his application by reference to the “wholly unavoidable delay” criterion.

7.  However, the applicant took the view that he could not meaningfully make any further submissions or submit additional materials in support of his application without knowing with what latitude, if any, the “wholly unavoidable delay” criterion had been implemented over the years by the Government.  He therefore by letter dated 15 October 2005 asked the Director to supply him with copies of the relevant internal minutes and papers regarding past applications under the scheme, so as to find out how the criterion had been implemented in practice over the years.

8.  Not surprisingly, the Director refused the applicant’s request for discovery.  In his letter of reply dated 21 November 2005, the Director emphasized that he would discharge his obligation under my order to reconsider the applicant’s application in accordance with the “wholly unavoidable delay criterion … as it has been implemented throughout the years … upon receipt of [the applicant’s further] representations”.  However, the Director took the view that this did not translate into an obligation on his part to provide the requested minutes and papers - “a request which is most wide ranging and extensive in scope and nature and oppressive to comply with”.  The Director also said that:

“no such requirement is either expressly or impliedly contemplated in the judgment, or is otherwise required by [the applicant] to be enabled to make the necessary representations”.

9.  Dissatisfied with the Director’s refusal of his request for discovery, the applicant launched the present application for leave to apply for judicial review of the Director’s refusal.  In his amended form 86A, the applicant asks for, by way of substantive relief, an injunction that the Director do provide the requested copy minutes and documents or alternatively, a declaration that the applicant and his legal representatives be entitled to inspect and take copies of the relevant minutes and documents.

10.  I fully bear in mind that this is only an application for leave.  The threshold burden on the applicant is relatively light.

11.  I wholly agree with the Director’s view set out in his letter that nothing in my order made in HCAL 123/2003 expressly requires the Director to make the requested discovery.

12.  I further agree with the Director’s view that nothing implicit in my order contains such a requirement.

13.  Procedurally speaking, if – which is not my view – such an obligation to make discovery was implicit in my order, the correct course to adopt would be for the applicant to apply for the enforcement of my order under HCAL 123/2003 (or for further directions under the same pursuant to the implied liberty to apply), rather than to take out a new application for judicial review – which is really a procedure of last resort.

14.  More importantly, in essence, the applicant’s present argument amounts to this: that there is an obligation on the part of the Director to disclose to him what precisely the applicable criterion is, before he completes making his application – the discovery sought is really in aid of enforcement of that supposed obligation.

15.  I do not agree with this proposition.  Nothing in my judgment supports that proposition.

16.  It is true that at various places in my judgment, I refer to the applicant not having known at any material times that the relevant criterion according E-13 was “wholly unavoidable delay”.  But that alone was never meant to be a freestanding reason for quashing the Director’s original decision made in relation to the applicant’s application.

17.  In particular, in paragraphs 82 to 83 and again in paragraph 87 of my judgment where I referred to the applicant being in the dark regarding the criterion to be applied as per E-13, I was there discussing the matter in the context of the Director’s duty to inform the applicant of the specific concerns that he had in mind after studying the applicant’s application and that were weighing against the application and to afford the applicant an opportunity of addressing them.  I was not there suggesting that even before the applicant had finished making his application, the Director had a duty to inform the applicant what criterion he was going to apply to determine his application.

18.  As regards paragraph 81 of my judgment where I also referred to the applicant being completely in the dark in relation to the relevant criterion, the reference was only meant as part of the background to highlight the unfairness to the applicant that was brought about by the Director’s earlier representation that the applicable criterion was “due diligence”.

19.  In fact, I have summarised my reasons for quashing the original decision of the Director in paragraph 91 of my judgment which reads:

“In conclusion, insofar as this case may be classified as a case of substantive legitimate expectation based on the 1998 reply that due diligence was the applicable criterion, the Government has, by adopting the wholly unavoidable delay requirement, departed from its previous representation, in the absence of any overriding public policy justification or good reasons (none was suggested), and without taking into account the legitimate expectation of the Applicant.  In any event, regardless of any substantive legitimate expectation or the breach thereof, in failing to afford the Applicant an opportunity to address the specific concerns that the Government had in mind after reviewing the 2003 application that tended to weigh against the application before reaching a final decision on the application, the Government breached its duty to act fairly and the decision thus reached was vitiated.  Furthermore, the Court is unable to conclude on the materials before it that the public wrong and/or breach of duty did not cause the Applicant any real prejudice or entail a risk of the Applicant suffering some real prejudice.  In those circumstances, the suggested ground for denying the Applicant relief on a discretionary basis does not exist.”

20.  In my judgment, in a scheme like the present one, the Director is simply not obliged to inform an applicant what criterion or criteria he would apply to determine the application. 

21.  In my view, the only relevant obligation on the part of the Director, in applying the criterion in question to re-determine the application pursuant to my order, is to afford the applicant an opportunity to address those specific concerns, if any, that the Director may have in mind after reviewing the application that tend to weigh against the application before reaching a final decision on it.

22.  And even at that stage, there is, in my judgment, no obligation as such on the part of the Director to inform the applicant the applicable criterion or criteria – for so long as the Director is able to discharge adequately his duty to afford the applicant an opportunity to address whatever specific concerns that he may have in mind after reviewing the application that tend to weigh against the application before reaching a final decision on the application.

23.  No doubt, the qualification that I have just added is fact-sensitive.

24.  If, after affording such an opportunity to the applicant to address the relevant specific concerns, the Director should come to a favourable conclusion in relation to the application, that would of course be the end of the matter.  However, if the Director should decide to reject the application after considering the further submission by the applicant, the matter may or may not end there.  If the applicant is not satisfied with the Director’s decision, and takes the view that the Director has misunderstood what the applicable criterion is, or has not applied the applicable criterion, or has incorrectly applied the applicable criterion, he may take the Director to court by way of judicial review.  It is in such a judicial review application that the Director may have to tell the court what criterion he has applied – and it will then be for the court to decide whether the Director has in re-determining the application, misunderstood what the applicable criterion is, whether he has applied the wrong criterion, or whether he has incorrectly applied the applicable criterion.  And in that process, it will be up to the court to decide, upon application, whether to order discovery of relevant documents by the Director in order to properly adjudicate on the above questions.

25.  In my judgment, in a case of the present type and at this present stage of submission of application, the Director is simply not under any duty to inform the applicant what the applicable criterion is.  The only relevant obligations on the part of the Director are to use the correct criterion to review the application, to afford the applicant an opportunity to address any specific concerns that the Director may have after reviewing the application that tend to weigh against the application before reaching a final decision on the application, and to correctly apply the right criterion to decide the application after considering all and all further submissions and materials received.

26.  As to the applicant’s argument that without knowing precisely what the criterion is, he cannot submit meaningfully any or any further submissions or materials in support of his application, in my judgment, the perceived difficulty is more apparent than real.  The short answer is that the Director is under a duty to give the applicant a further opportunity to address any specific concerns that he may have after reviewing all relevant submissions and materials at the first stage of the application that tend to weigh against the application before reaching a final decision.  At that second stage, the applicant will know precisely what specific concerns that he will have to address, and will be in a position to submit further submissions or materials in response. 

27.  As I said, depending on the contents of those specific concerns, the Director may or may not have to reveal to the applicant at that second stage what he thinks the applicable criterion (i.e. the “wholly unavoidable delay” criterion as has been implemented over the years) is, in order to afford such an opportunity to the applicant to address those concerns.  And even if the Director should need to do so at that stage, it is difficult to think of circumstances under which he should also make discovery of internal minutes and documents at the same time in order to convince the applicant that the disclosed criterion is the correct one.

28.  Mr Mok, Mr PY Lo with him, has in his oral submission referred this Court to R. v. Home Secretary, Ex p. Hickey (No. 2) [1995] 1 WLR 734, 757F to 758A, concerning the court’s jurisdiction to order disclosure of materials before any substantive decision has been made.

29.  I am not so much concerned with the court’s jurisdiction to grant the relief sought as such; rather I am concerned with the substantive merits of the application.

30.  For the reasons given above, notwithstanding the relatively low threshold test for an application for leave, I am unable to accede to the application.  It is dismissed with no order as to costs.

31.  As this judgment contains views (albeit given in an ex parte context) that may be helpful to the Director’s reconsideration of the applicant’s application pursuant to my order of mandamus granted in HCAL 123/2003, I direct that a copy of the judgment be released to the Director for his reference.

32.  I thank counsel for their assistance.