LAW WAI FONG v. TOWN PLANNING BOARD

HCAL236/2015

[2018] HKCFI 1271

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

No. 236 of 2015

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Initial Response of the Putative Respondent dated 20 July 2016 and oral submissions by Counsel for the Applicant and Counsel for the Putative Respondent in open court;

1.  Leave to apply for judicial review refused.

2.  Costs of the leave application be to the Putative Respondent, to be taxed if not agreed. The Applicant’s own costs be taxed in accordance with legal aid regulations.

Observations for the Applicant:

Hon Au J’s reasons for refusing leave are as follows.

1.  First, the proposed grounds of judicial review are not reasonably arguable for the following reasons.

2.  In the proposed judicial review, the applicant (Ms Law) seeks to challenge the Town Planning Board’s decision (“the Decision”) in approving four applications (“the s.16 Applications”) made under s.16 of the Town Planning Ordinance (Cap 131) (“the TPO”) to build four separate small houses (under the Small House Policy).  The four sites identified in the s.16 Applications partly fall on the Green Belt zone and hence the need to make the s.16 Applications.

3.   Fundamental to the proposed challenge is the allegation that the four indigenous villagers who respectively made the s.16 Applications were suspected of having committed fraud in their respective underlying Small House applications (“the Four Small House Applications”) submitted under the Small House Policy, as they were only used as fronts by private developers in a scheme to build the four small houses.  Ms Law says the said suspected criminality of the Four Small House Applications were raised and brought to the attention of the Town Planning Board (“the TPB”) by Designing Hong Kong Ltd (“DHK”) (an environmentalist) in opposing the s.16 Applications in its letter dated 14 August 2015.[1]  DHK’s basis for alleging the suspected criminality of the Four Small House Applications is stated in the letter as follows:

“Finally, the transactions of land lots related to the captioned application and others nearby, the coordinated nature of the applications, are grounds to suspect that misrepresentations may have been made to the Director of Lands and to the Town Planning Board as to the intention of the owners of the land and the owners of the ‘ding’ rights regarding the use of the house and the beneficial interests. Such unlawful schemes are common and there is a high risk that the Town Planning Board could be aiding and abetting which in whole or in part could be unlawful or unauthorized under the small house policy and all the associated regulations.

If the Town Planning Board is not aware of the risks of involvement in such unlawful but common schemes, the Board should make enquiries with the Department of Justice and the ICAC on the risk of involvement in conspiracies to defraud and misrepresentations by the applicants as there could well be adequate grounds for a healthy suspicion and thorough investigation. In fact, the methods and instruments involved in schemes whereby indigenous villagers were recruited to act as ‘front men’ to enable the land owners to develop small houses on their land are well known, including how land is carved into sections and assigned, from evidence discovered during many Court Cases. The Board may not have the investigative powers itself, but it can’t pretend to be blind and must make comprehensive enquiries and themselves consider the information discovered.

It is a duty of the Town Planning Board to ensure it is not aiding and abetting unlawful schemes. It must first make sure that it has full knowledge of the background of the applications by verifying that the Lands Department undertook extensive investigations, including by soliciting the help from other agencies including the Immigration Department, Police and ICAC directly by the Board or by making sure the Lands Department has done so, including but not limited to the following information:

1. Were the captioned applications to the Town Planning Board fully coordinated and submitted as a whole buy the same agent?

2. Who owns and has owned the land, and for what values was the land exchanged?

3. Which companies have been involved in the transactions and financing, where were they located and who are/were the directors?

4. Do the applicants ordinarily reside in Hong Kong according to entry and exit information from the Immigration Department?

5. And so forth.

Having considered the above information, the Board should ensure it is fully satisfied that it would be unreasonable to suspect that the applications are misrepresentations to Government and the Board, and that the small house applicants are indeed applying for permission to build for themselves. If it can’t be fully satisfied it should ask for further information and clarifications.”

4.   However, Ms Law says the TPB had simply failed to take this into account and make the necessary enquiries before making the Decision.

5.   Premised on the above, Mr Ng for Ms Law advances five formulated proposed grounds of judicial review, namely that, in failing to take into account the suspected criminality of the underlying four Small House applications, (1) the TPB abused its discretion in making the Decision; (2) the Decision is irrational or unlawful; (3) the Decision frustrated Ms Law’s legitimate expectation; (4) there is a breach of natural justice in the Decision making process; and (5) the Decision fails to satisfy the proportionality test.

6.   Mr Ng accepts that all these proposed grounds of judicial review are premised upon the principal proposition that the TPB has a duty in law (whether under s.3 of the TPO or common law) to consider and make the necessary enquiries in relation to the allegation of the suspected criminality of the underlying Four Small House Applications before approving the s.16 Applications.  Counsel fairly and rightly accepts that if this fundamental proposition is unarguable, all the proposed grounds of judicial review must also fail.

7.   In my view, this fundamental proposition is clearly unarguable for the following reasons.

8.   S.3(2) of the TPO provides that the TPB shall “make such inquiries and arrangements… as it may consider necessary for the preparation of the draft plans” provided under s.3(1).

9.   S.3(1) provides that the TPB shall undertake the systematic preparation of draft plans with a view to “the promotion of the health, safety, convenience and general welfare of the community”.

10.   Furthermore, the long title of the TPO provides that the objective of the TPO is “[t]o promote the health, safety, convenience and general welfare of the community by making provision for the systemic preparation and approval of plans for the lay-out of areas of Hong Kong as well as for the types of building suitable for erections therein and for the preparation and approval of plans for areas within which permission is required for development”.

11.   Read objectively these provisions with the long title, it is clear that the statutory function of the TPB is to advise and prepare draft plans which for planning purposes would promote “the health, safety, convenience and general welfare of the community” of the zone under planning.  As such it is plain that s.3(2) only requires the TPB to make enquiries with such matters which are necessary for and relevant to planning considerations.  In my view, allegations of suspected criminality of specific underlying Small House applications is obviously not a planning matter.  The TPB has no duty under s.3 to make enquiries with any representations made based on such allegations. 

12.   It therefore could not be the objective intention of s.3(2) of the TPO to require the TPB to make enquiries with matters raised by representations in the consultation which are not related to planning considerations.  This would apply equally to the consideration of a s.16 application.

13.   Further, any common law duty to make enquiry, including the Tameside duty, imposed on the TPB is only to require it to engage and make proper enquiry with issues and questions raised which are relevant to the planning functions it is tasked with.  Hence, for the same reasons I have explained above, there cannot be any common law duty imposed on the TPB to make enquiry with allegations of suspected criminality of the underlying Four Small House Applications. This is particularly so since, as pointed out below at paragraph 19, the TPB has nothing to do with the approval or disapproval of a Small House application and it is not necessary to have a valid or approved Small House application before an applicant can make a s.16 application with the TPB.

14.   In this respect, Mr Ng submits that there must be a common law duty that a Government department or branch cannot lend its weight to frauds or criminal activities.  Counsel says it cannot turn a blind eye when faced with a real possibility of criminality in approving planning permission.  In support, Mr Ng cites in aid Lazarus Estates Ltd v Beasley [1956] 1 QB 702, where Denning LJ said at page 712 that:

“No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”

15.   Mr Ng therefore says, a fortiori, as a statutory body, in making the Decision, the TPB cannot simply ignore the possibility of the Four Small House Applications having been tainted with criminality.

16.   With respect, there is nothing in this submission:

(1)  Lazarus is only applying and stating the trite principle that “fraud unravels everything”.  This principle only applies when the fraud concerned is established.[2] It therefore has no application in the present case, since (as rightly accepted by Mr Ng) there is no proven fraud here at all.  There was only an allegation of suspected fraud.

(2)  In any event, as I mentioned below at paragraph 19, the TPB in making the relevant planning decision under s.16 is not concerned with whether the specific underlying Small House application is valid and approved or not.  The validity and legality of the Small House application is a matter for the Lands Department.

17.   Finally, Mr Ng also submits that in exercising its discretion under s.16 of the TPO, as a matter of relevance, the TPB should take into account the suspected criminality representation in considering whether to approve the s16 Applications.  It however did not do so.

18.   This is similarly unarguable.  It is well established that, unless a matter is prescribed by statute or by law to be taken into account by the decision maker (which is not the case here), the decision maker in deciding not to take that matter into account is only subject to Wednesbury challenge in a judicial review.[3]

19.   For the reasons I have explained above, the alleged suspected criminality of the underlying Four Small House Applications is not a relevant planning consideration.  In the premises, it obviously cannot be said to be Wednesbury unreasonable for the TPB not to take it into account when making the Decision.  This is particularly so in light of the following observations:

(1)  The Small House Policy regime is managed by the Lands Department.  An application by an indigenous male villager to build a Small House under the Small House Policy is to be vetted and approved by the Lands Department, including approving whether the applicant is an eligible indigenous villager.

(2)  Under the Small House application regime as managed by the Lands Department, objections to any such applications can be made to the Lands Department.[4]  In other words, it is open to Ms Law or DHK to make objections to the Lands Department regarding the Four Small House Applications based on any allegation of fraud.[5]

(3)  The TPB has nothing to do with the approval or disapproval of a Small House application.[6] Moreover, the TPB in considering a s.16 application is also not concerned with whether the applicant’s underlying Small House application has or has not been approved by the Lands Department.[7]

(4)  It is also obvious that it is open to anyone (including Ms Law and DHK) to make a report to the police concerning any alleged suspected criminality or fraud committed by the applicant in a Small House application.[8]

20.   For all the above reasons, I reject Mr Ng’s contentions that the TPB has a duty in law to enquire with or take into account the allegation of the suspected criminality of the underlying Four Small House Applications in making the Decision.  Once this fundamental proposition is rejected, as rightly accepted by Mr Ng, all the proposed grounds of judicial review are similarly not reasonably arguable and must fall away.

21.   I therefore would refuse to grant leave for the reason that the intended judicial review is not reasonably arguable.

22.   Second, I would also reject the leave application on the ground that Ms Law lacks the necessary sufficient interest in bringing the judicial review.  My reasons are these.

23.   Order 53, rule 3(7) of the Rules of the High Court provides that an applicant for leave must have “sufficient interest in the matter to which the application relates”.  This is a jurisdictional requirement essential to prevent abuse of judicial review.

24.   Lam VP in Re Wong Chi Kin (CACV 80/2014, 26 September 2014, Lam VP, Cheung and Yuen JJA) has further explained at paragraph 11 as to what may or may not amount to the requisite sufficient interest as follows:

“11. Notwithstanding the Applicant’s previous role in the Marine Department, he has no locus to represent either the Marine Department or those named officers to challenge those findings by way of judicial review. Though the requirement of standing in public law is a liberal one, an applicant must still have some interest in the matter to warrant leave being granted to him to challenge a public decision. Leave would not be granted to a meddlesome busybody, see R v Monopolies and Mergers Commission, ex p Argyll Group Plc [1986] 1 WLR 763 at p 773. The relevant principles about standing in bringing an application for judicial review were considered by Rose LJ in R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement [1995] 1 WLR 386. Standing goes to jurisdiction and it has to be considered in the legal and factual context of the whole case. Merits are important. But there are other factors as well: the importance of vindicating the rule of law, the importance of the issue raised, the existence and absence of any other challengers who have a greater interest in the matter, the nature of the breach of duty against which relief is sought.” (emphasis added)

25.   Whether Ms Law has the necessary “sufficient interest” in bringing the proposed judicial review challenge against the Decision must be examined, among others, in the very context of the proposed grounds of challenge sought to be raised by her.

26.   In this respect, as summarized above, all these grounds of challenge are premised on the complaint that the TPB had failed to take into account and make proper enquiry with DHK’s representation that the underlying Four Small House Applications were suspected of being tainted with criminality.  However, Ms Law herself had never made any representation to the TPB based on this allegation of suspected criminality.  Indeed, Ms Law does not live in the village concerned.  She only comes back from time to time to visit her family, who still lives there.  She and her family members (together with others from the village) had through a letter to the TPB made certain representations to oppose the s.16 Applications. Those representations however were only concerned with objection based on the purported adverse environmental impacts on the village if the applications were approved (which representations the TPB had taken into account in making the Decision).  Hence, Ms Law herself had never raised any objection based on the allegations of suspected criminality of the Four Small House applications.

27.   Once considered in the above context, it is clear to me that Ms Law does not have any interest to bring the judicial review based on the proposed grounds of complaint which have nothing to do with her.  It is also pertinent to note that there also exists DHK which is an obvious challenger having a clearly much greater and direct interest in seeking to challenge the Decision based on these proposed grounds.  In the premises, Ms Law is in my view a busybody in seeking to raise the proposed grounds as the basis to challenge the Decision.

28.   I will therefore also refuse to grant leave on the basis that Ms Law lacks the necessary sufficient interest to bring the intended judicial review.

Costs

29.   Ms Lam for the TPB has asked for costs of the leave application if it is dismissed.

30.   It is now well established in a failed contested leave application, the starting general position is still that there should be no order as to costs, unless there are exceptional or unusual circumstances with good reasons to justify a departure from this starting position.  In considering whether there are such good reasons in all the circumstances, the court may consider factors such as “if an application was thoroughly ill-conceived or unmeritorious” and “where, as a result of the attendance of an opposing party, the hearing has proceeded with full argument and documentary evidence so that the applicant has, in effect, had a full substantive hearing of the judicial review challenge”. See: Leung Kwok Hung v President of the Legislative Council (No 2) (2014) 17 HKCFAR 841 at paragraph 17 per Ribeiro PJ.

31.   In the present case, as I have explained above, the judicial review is clearly unarguable.  Further, I also regard that Ms Law has in effect had a full substantive hearing, as the success of the challenge is fundamentally premised on the legal arguments as to whether the TPB has a duty to make inquiry of the allegations of suspected criminality of the underlying Four Small House Applications. The legal arguments have been substantially advanced and disposed of in the leave application.  In light of these, and coupled with my conclusion that Ms Law clearly lacks the sufficient interest in bringing the judicial review based on those proposed grounds of challenge, I accept there are good reasons in all the circumstances of this case to justify a departure from the usual costs position.

32.  I therefore order that costs of the leave application be to the TPB, to be taxed if not agreed.  Ms Law’s own costs be taxed in accordance with legal aid regulations.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1