RE MAN WAI HUNG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. On 11th November 1994, the 4 applicants were given leave to apply for judicial review. On behalf of the Director of Planning (the Director) whose decisions are under attack, the Attorney General has applied for the grant of leave to be set aside and the notice of motion issued consequent upon the grant of leave to be dismissed on the grounds of delay and material non-disclosure.

2. In September 1990, pursuant to the provisions of the Town Planning Ordinance Cap. 131, land at Ngau Tam Mei (the land) was designated as an interim development permission area. The land was not designated any particular use. In July 1991, The land was designated as a development permission area for unspecified use. Unspecified use permitted such traditional activities as agriculture burial, buildings for use by police, the post office or rural committees, and tree plant plantation. Between July and November 1992, staff of the Planning Department inspected the land on various occasions and discovered that part had been adapted for parking of container vehicles and lorries, and for open storage of construction machinery. Only one occupier, Shun Yue Transport Company Limited, could be identified.

3. Parking and storage not being permitted, on 30th April 1993, the Director posted up and served enforcement notices pursuant to section 23(1) of the Ordinance. The notices were served on the one identified occupier and upon all registered owners of the land the subject of unauthorised use. The land consisted of 52 separate lots (apart from some Crown land) and 82 title holders. The 4 applicants are the registered owners of one lot each.

4. Each enforcement notice is prefaced by a letter of the same date, 30th April 1993, from the Director to each individual owner. The letter refers to all the lot numbers involved, describes the unauthorised use to which the land is being put and then continues:-

"The Director of Planning, being the Authority under the Town Planning Ordinance (the Ordinance), has therefore issued an enforcement notice under s.23(1) relating to the above land and I now serve on you a copy of that Notice. Copies of the Notice are also being served on others who, it is understood, have interests in the land. The Authority requires that by 30th July 1993, the development shall be discontinued or permission for the development shall be obtained from the Town Planning Board under s. 16 of the Ordinance. Application form for such permission can be obtained from the Secretary, Town Planning Board, 13/F, Murray Building, Garden Road, Hong Kong."

5. The letter then goes on to point out that failure to comply with the notice constitutes an offence for which substantial fines may be levied.

6. The enforcement notice itself is directed to an individual owner. By reference to schedules, however, it recites all the lot numbers involved in the land and the unauthorised use thereon, and requires the development to be discontinued by 13th July 1993 or for permission to be obtained.

7. The enforcement notice is under attack because it is said to be unreasonable, ambiguous and unenforceable. The complaint is that it is not clear whether each individual owner is required to discontinue unauthorised use on his own lot only or take steps to discontinue use on the land as a whole. If it is the latter that is expected of him, it is unreasonable because he cannot exercise control over land which does not belong to him.

8. Between 29th June and 30th December 1993, further inspections of the land were made. The transport company was found to have moved out and complied with the notice. New occupiers were found on the land. The land was still being used for storage and parking. Accordingly, on 27th January 1994, the Director laid information against, and 20 summonses were issued to, 20 owners including the 4 applicants for failure to comply with the enforcement notice between 31st July and 29th December 1993. The summonses were heard on 10th March 1994 in Tuen Mun Magistracy. 5 defendants including the 4 applicants appeared in court and pleaded not guilty. The other defendants were absent. The summonses came on for trial on 31st May when the defendant who was not one of the applicants was acquitted, he having been able to establish the statutory defence provided by the Ordinance. The 4 applicants chose to raise a point under the Bill of Rights which was subsequently heard on 16th August but rejected by the magistrate who adjourned the cases for trial on 14th November.

9. The point taken under the Bill of Rights, as I understand it, was essentially that because part of the land which was the subject of unauthorised use was Crown land, the Crown equally should have been subject to an enforcement notice and taken to court. The action taken against the applicants was discriminatory. It is on that basis that the applicants now seek to impugn the decision of the Director to lay information against the 4 appellants (or to issue summones, as it is put in the notice under Order 53, rule 3)

10. The attack upon the Director in relation to the informations or summonses is plainly unsustainable. It is not open to challenge by way of judicial review a decision to prosecute. In any event, as was known to the applicants but not revealed to the judge who heard the application for leave, the applicants were not the only recipients of summonses. It is true that they perhaps did not know precisely how many other owners had received summonses. Nonetheless, it was plain that they were not being singled out for special treatment.

11. Mr. Chan who appeared for the applicants, while not conceding the point, was not disposed to argue to the contrary. Accordingly, the leave which was granted in so far as it relates to the summonses must be set aside.

12. As far as the enforcement notices are concerned, there is no dispute that the applicants crossed the argument threshold. The notices however were dated 30th April 1993. The applicants' application for leave is dated 10th November 1994, some 18 months after the decision complained of.

13. In M.P. No. 2408 of 1989, an application for leave to apply for judicial review by Right Centre Company Limited, Godfrey J. said on 15th November 1989:-

"In all matters of judicial review, prompt action is important. So important is it that legislation, both primary and secondary, makes provision in this connection."

14. The judge then set out the provisions of section 21K of the Supreme Court Ordinance and Order 53 rule 4(1) which are not easy to reconcile. But reconciled they have been and in relation to identical English provisions, Lloyd L.J. summarised the position in R. v. Dairy Produce Quota Tribunal for England and Wales Ex parte Caswell and Another (1989) W.L.R. 1089 at page 1097:-

          "Grant of leave

          Substantive hearing

15. There was, I think, a faint attempt to argue that time did not begin to run until 16th August when the applicants' Bill of Rights point was rejected by the magistrate. Plainly, however, that is an impossible position to sustain. It is the decision of the Director taken no later than 30th April 1993 to issue enforcement notices that is under attack. It is from that date that time must run. That being so there has unquestionably been undue delay. The crucial issue therefore is whether the applicants have shown good reason for that delay.

16. I hope I do no injustice to Mr. Chan in summarising his argument thus. The enforcement notices were of no great consequence and did not unduly disturb the applicants (which says little for the respect in which the law is held in the New Territories). Only when the summonses were received did the matter become one of concern and anxiety, not least because of the consequences of a conviction. After taking legal advice, it was decided that the proper course was to exhaust the avenues open to the applicants in the magistrates court before having recourse to judicial review should that become necessary. Not until 16th August did the applicants become acutely conscious of the need to challenge the enforcement notice itself. Three matters created this consciousness. First, the Bill of Rights point had failed. Second, the other defendant had succeeded in his statutory defence but being a local councillor who was well aware of how to deal with bureaucracy and the need to make a detailed record of his activities. The applicants, who lacked such knowledge, were less hopeful of being able to set up the statutory defence. Third, they learned that the original identified occupier, the transport company, had been able to comply with the enforcement notice, a notice which was causing them some perplexity.

17. Thereafter, a decision having been taken to attack the foundation of the unhappy situation in which the applicants found themselves, the necessary papers for an application for leave were prepared with all speed.

18. Mr. Chan maintained that, on the authorities, it was correct for the applicants to have pursued the remedies open to them in the criminal proceedings rather than to have gone by way of judicial review. Indeed, he said that he received an intimation to that effect from the judge before whom he appeared on the application for leave. If that is so, I am bound to say I find it puzzling. The Ordinance does not provide for any avenue of review or appeal in relation to an enforcement notice issued under section 23(1), in contrast to reinstatement notices issued under section 23(3) and (4) where an aggrieved person may apply for a review within 30 days. Accordingly, the options open to the recipient of an enforcement notice are to comply or to challenge the notice, that challenge effectively being confined to proceedings by way of judicial review.

19. Once matters have been allowed to slide and the notice is enforced by prosecution, it is probably too late to attack the notice in the criminal proceedings. Mr. Chan and Mr. Wingrad, who appeared for the Director, seemed to accept that if the applicants had sought to impugn the enforcement notice in the magistrates court the magistrate would probably have asked what action they had taken to have the notice set aside, and in the absence of such action simply accepted the notice as valid and enforceable. I am not at all sure that that is correct. It is not unknown for the formal steps required of a prosecuting authority before a prosecution can take place to be challenged for some technical defect or infringement. It may well be that such a challenge could have been mounted here.

20. In my judgment, however, the possibility of a challenge in the magistrates court is immaterial. The foundation of the predicament in which the applicants find themselves is the enforcement notices. Whatever view the applicants as laymen may have taken of those notices and whatever legal advice they may have received, it is inescapable that what was in issue was the form of the notices and not whether they were justified or whether the applicants had done all that was within their power to comply with the notices. There was no reason, in my view, for the applicants to have done other than take swift action to have the notices set aside if the notices were indeed bad. Whilst an explanation has been offered for the long delay which has arisen, it does not, in my view, constitute a reason let alone a good reason.

21. It is therefore not necessary for me to deal with the question of detriment to good administration or how I should exercise my discretion. I simply say this. The task of the Director and his staff will become difficult if not impossible if, given his powers to enter land to rectify wrongful use, he is, many months after the event, going to be exposed to the possibility of the enforcement notice being set aside. He is entitled to know, as early as possible, if there is to be a challenge to his authority to have land restored to its lawful use. This is particularly so in the New Territories where the Director needs to get a firm grip on the rapid devastation of the country side.

22. As far as the applicants are concerned, I feel no great sympathy. It may well be that the enforcement notices are misleading, unhappily drawn and difficult of enforcement. As I remarked during the hearing, however, it should be possible to apply a little common sense. As the applicants themselves acknowledge, each is perfectly capable of complying with the notice in respect of his individual lot. I apprehend that the Director does not expect them to take any steps in relation to lots which they themselves do not own or occupy. Nor do I think, as Mr. Chan tentatively sought to argue, that there is some great point of policy or publica importance at stake which should be resolved after argument and not by default.

23. As far as material non-disclosure is concerned, again it is not now necessary for me to deal with this. Suffice it to say that the applicants plainly did not place the whole picture before the judge. There has been a great deal of activity in relation to the land, particularly in the form of applications for planning permission which, if not known to the applicants at the time, was certainly known to them when they made their application for leave. This information was material. Had I taken a different view of the delay, however, I would not have set aside the grant of leave on the ground of non-disclosure.

24. Accordingly, I set aside the leave that was granted. I dismiss the notice of motion. I make an order nisi that the applicants pay the costs of this application.