WONG PING HUNG ADAM v. DIRECTOR OF HOUSING

HCAL 141/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 141 OF 2007

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J U D G M E N T

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I. INTRODUCTION

1.  Between 7.15 and 8.15 on a normal weekday morning, a flow of several thousand pedestrians passes in both directions through the upper and ground floors of the Choi Ming Shopping Centre Extension. 

2.  The flow comprises students going to school and adults going to work.  They all pass through the Extension’s ground floor because there are MTR and bus stations nearby.  There are also schools, kindergartens, community centres, and offices of non-governmental organisations in the close vicinity.

3.  There is a pair of escalators (with one set of steps moving up and another moving down) between the upper and ground floors of the Extension.  Typically, during the morning peak hours, pedestrians have to slow down, queue up at around the escalators, and wait for their turn to be conveyed upwards or downwards by the escalators’ moving steps.  The queue is long and (according to the Notice for Judicial Review) people can “only move at a crawling speed”.

4.  The Extension is adjacent to the residential blocks of some housing estates (especially Kin Ming Estate and Choi Ming Court).  These blocks are directly or indirectly connected to the Extension by elevated walkways. 

5.  Many of the residents in these blocks are unhappy with the congestion which occurs at the ground floor of the Extension on a weekday morning.  They believe that the congestion is not just an inconvenience to daily life, but also poses a potential risk to safety.  They have been actively campaigning for something to be done to improve the situation.

6.  Mr Wong is such a resident.  He brings this judicial review as part of a wider campaign to improve conditions at the ground floor of the Extension (through which Mr Wong frequently passes). 

7.  For the purposes of this application, Mr Wong targets a Decision by the Independent Checking Unit (ICU) of the Housing Authority (the Authority) made on 10 August 2007.  By the Decision, the ICU approved an application by The Link Management Ltd. (The Link) to increase the width of a passageway between 2 rows of shops (being built in the Open Foyer Area of the ground floor of the Extension) from 4.5 m to 5 m. 

8.  In consequence of the Decision, there is at present a passageway of 5 m in the Open Foyer Area of the Extension’s ground floor.

9.  It is Mr Wong’s case that such passageway of only 5 m will not alleviate the morning congestion.  He believes that the ICU should have insisted that the passageway be at least 9 m wide.

10.  I have to determine whether the grounds raised by Mr Wong constitute a basis for quashing the ICU’s Decision.

II. BACKGROUND

11.  The Choi Ming Shopping Centre in Tseung Kwan O consists of a First Phase (completed in 2001) and a Second Phase (completed in 2003).  The First Phase is what I have been referring to as the Extension.

12.  The Authority owned and managed Choi Ming Shopping Centre until 2005 when it sold the entire Property to The Link Real Estate Investment Trust (Link REIT).  Choi Ming Shopping Centre is now managed by The Link.

13.  The Ground Floor of the Extension originally comprised a Shopping Area and an Open Foyer Area, with glass doors separating the former from the latter.  Extension Works were then proposed whereby the Shopping Area would be extended into the Open Foyer Area.  This meant that 2 rows of shops with a passageway in between would be built in the Open Foyer Area.

14.  In 2006, the ICU thrice rejected building plans for the Extension Works.  On 15 February 2007 it finally approved building plans for the Extension Works.  The approved plans envisaged a passageway of 4.5 m.

15.  On 26 April 2007 the first part of the approved Extension Works started. 

16.  On 13 July 2007 The Link submitted revised plans for the Extension Works.  These revised plans provided for a passageway of 5 m between the 2 rows of shops. 

17.  The submission was a response to complaints from residents and others (such as Mr Raymond Ho Man Kit of the District Council).  The complaints expressed concern that, in turning an Open Foyer Area into a shopping arcade, The Link had not taken into account the significant pedestrian flow passing through the Extension.  It was also suggested by residents that the Extension Works may be contrary to fire safety regulations.

18.  The ICU gave its approval to the revised plans on 10 August 2007.  This is the Decision under challenge in this judicial review.

19.  The first part of the Extension Works was completed on 6 November 2007.  This comprised the first row of shops.  On the same day, the area for the second row of shops (to be built as the second part of the Extension Works) was enclosed.  This left a passageway of 5 m between the completed first row and the hoarding enclosing the second row undergoing construction.

20.  Mr Wong applied for judicial review on 30 November 2007.  Leave to apply was granted after an ex parte oral hearing on 13 December 2007.

III. DISCUSSION

21.  Mr Valentine Yim (appearing with Mr Aidan Tam for Mr Wong) criticises the ICU’s Decision on a number of grounds.

22.  First, Mr Yim raises a basis which is not in Mr Wong’s Notice for Judicial Review.  Mr Yim submits that the ICU had no power to make the Decision because the Extension’s ground floor (including the Open Foyer Area) had never properly been divested from the Authority to any Link REIT company.  Mr Yim asked for leave to amend Mr Wong’s Notice to incorporate this ground.

23.  Second, Mr Yim submits that the Decision was ultra vires the authority given to the ICU by the Building Authority (BA) under an Instrument of Delegation (the Instrument).

24.  Third, Mr Yim submits that, in reaching the Decision, the ICU did not properly apply the Code of Practice for the Provision of Means of Escape in Case of Fire 1996 (MOE).

25.  Fourth, Mr Yim submits that the ICU did not follow proper procedure in reaching the Decision.  According to Mr Yim, Practice Note for Authorised Persons (APs) and Registered Structural Engineers (RSEs)(PNAP) 30 gave rise to a legitimate expectation in Mr Wong that the ICU would:-

(1)  organise meetings between representatives of The Link and the District Planning Conference (DipCON) to resolve a conflict between the Extension Works and a Government Planning Brief covering the Sai Kung area; and,

(2)  consult the Housing Department.

26.  Mr Yim alleges other grounds of judicial review.  But these other grounds (despite Mr Yim’s suggestions to the contrary) are plainly derivative.  By this I mean that the other grounds hinge on the validity of the 4 major grounds just summarised.  If the 4 grounds are invalid, the other grounds logically fall away.  These other grounds add nothing new to the analysis.

27.  Thus, for example, Mr Yim contends that the ICU fettered its discretion because it failed to take proper account of the MOE.  This attack repeats the second main ground mentioned.

28.  Take another example.  Mr Yim suggests that the Decision was Wednesbury unreasonable. 

29.  But this is said to be because the ICU did not realise that the Extension ground floor had not been properly assigned to Link REIT; because the ICU misapplied the MOE; because the ICU did not resolve the conflict concerning the Planning Brief; and because the ICU did not consult the Housing Department.  This omnibus ground therefore recapitulates the 4 main grounds.

30.  I shall accordingly confine myself to a consideration of the 4 main grounds.

31.  I note that Mr Yim abandoned still other grounds of review contained in the Notice for Judicial Review.  Those were:-

(1)  an allegation that the Decision breached a legitimate expectation arising from a press release dated 24 July 2003;

(2)  an allegation that the ICU had not properly conducted a voluntary consultation; and,

(3)  an allegation of apparent bias.

A. Main Ground 1: Ultra vires due to non-divestiture

32.  I refused leave to amend the Notice to incorporate this ground.  It seemed to me to be unarguable.

33.  By Housing Ordinance (Cap.283) (HO) s.17A the Authority “may sell or otherwise dispose of” land vested in it.

34.  By HO s.18(2), the Buildings Ordinance (Cap.123) (BO) does not apply to a building which is vested in the Authority.  See also BO s.41(1)(aa) which exempts land vested in the Authority from the BO.

35.  But the BO will apply if, having been completed, a building “is sold or otherwise disposed of” under HO s.17A.  This is stipulated by HO s.18(3).

36.  BO s.14 states that no building works may be commenced without the BA’s prior approval.  BO s.2(2), however, allows the BA to delegate his authority to approve building works to other Government officers.

37.  By the Instrument the BA delegated his authority in respect of “minor alteration and additional works and construction of footbridges” to the ICU.

38.  By a Global Offering of November 2005 the Authority listed the properties which it proposed to transfer to Link REIT.  Among those properties were Phases I and II of the Choi Ming Shopping Centre (including the Extension).

39.  But by a detailed textual analysis of the Global Offering and an Assignment dated 25 November 2005 between the Authority as Vendor and The Link Properties Limited as Purchaser, Mr Yim submits that there must be doubt whether the Authority successfully divested itself of title to the ground floor of the Extension. 

40.  I note in passing that the Assignment is ostensibly a document by which Choi Ming Shopping Centre (among other premises) was transferred to a Link REIT related company.

41.  If he is right about a lack of divestiture of the Extension ground floor, it is Mr Yim’s contention that the ICU could not have properly made the August 2007 Decision. 

42.  That is because the Extension ground floor would have remained property belonging to the Authority.  The BO would not apply to such property and the ICU could not exercise the power delegated by the BA over the property.  That delegated power only extends to approving minor or additional works in premises to which the BO applies.

43.  Mr Yim draws from this reasoning the conclusion that the Decision was ultra vires the ICU and hence invalid.

44.  I thought that the submission was bad for 3 reasons.

45.  First, assume (without accepting) that Mr Yim is right and the relevant documents (whether the Global Offering, the Assignment or any other documents) have somehow failed to transfer legal title in the Extension ground floor to Link REIT.

46.  Nonetheless, all relevant parties were under the impression that the documents transferred a valid title from the Authority to Link REIT.  Since that supposed vesting, all parties have conducted themselves as if a valid title had been passed from the Authority to Link REIT.

47.  Link REIT obviously believes that it now owns the Extension ground floor.  It has through its agents moved into possession of the premises.  It has expended money on and managed the same through The Link.  All this has been done under the impression that valid title has vested.

48.  The Authority (on whose behalf Mr S. H. Kwok appeared before me) asserts that the Extension ground floor has been vested in a Link REIT related company.  The Authority does not now purport to be the owner of the property.

49.  The Director of Housing for the Housing Department (represented before me by Mr Joseph Fok SC) is equally adamant that the Extension ground floor has vested in Link REIT.  The Director denies that any interest in the property remains with the Authority.

50.  In those circumstances, it must be that the Extension ground floor has been “disposed of” to Link REIT at least in equity.  Such result can be obtained through the application of equitable doctrines. 

51.  For instance, since all relevant parties believed that the property was transferred as everyone intended, then if the conveyancing documents failed to achieve such effect for some reason, Link REIT must be entitled to have the documents rectified to conform with the parties’ intentions.  That entitlement to rectification would make Link REIT the owner in equity, at least, of the premises.

52.  Alternatively, there is the doctrine of part performance.  The parties’ conduct (especially, of Link REIT) is solely referable to the belief or intention that the documents would vest a valid title.  The parties’ behaviour only makes sense on that assumption.  In such situation, it would be wrong for equity not to treat as done that which ought to have been done.

53.  In the further alternative, there is the doctrine of proprietary estoppel.  Where the Authority has unequivocally represented that Link REIT is the owner of the Extension ground floor and on the strength of such representation Link REIT has acted as owner to its detriment, the Authority must be estopped from now denying that valid title has been transferred.

54.  Title to the Extension ground floor having been vested in Link REIT in equity at least, there must have been a sufficient “disposal” of the property within the terms of HO ss.17A and 18(3).  The BO would thus have applied to the property.  The ICU in coming to the Decision would have been well within the scope of its delegated authority from the BA.

55.  Second, I did not see in practical terms how Mr Yim’s argument could have a bearing on the outcome of this judicial review. 

56.  The Authority supports the ICU’s Decision to approve the widening to 5 m.  So does the Director.  If the ICU wrongly exercised a jurisdiction because property remained with the Authority, presumably it would be for the Authority (or possibly the Director) to decide how wide the passageway should be.  Their agreement with the Decision suggests that they would similarly approve the plans which the ICU accepted.

57.  Third, it seemed to me that by this new ground Mr Yim was seeking to overturn not just the Decision to widen the passageway to 5 m, but also to set aside the ICU’s earlier decision approving the construction of a shopping arcade in the Open Foyer Area.

58.  If the ICU acted ultra vires in its Decision to allow a widening of the passageway, the consequence (according to Mr Yim) would be that its earlier decision in relation to the Open Foyer Area should be equally invalid.

59.  But, in my view, it is far too late to take this wider point, invalidating all previous decisions by the ICU in relation to the Extension ground floor.  Judicial review must be brought promptly, usually within 3 months of a decision. 

60.  The decision here to authorise the building of a shopping arcade in the Extension ground floor was made in February 2007.  Since then, much time has elapsed and much construction work has already been undertaken.  It would be wrong consequently to allow the wider point to be taken now, more than a year later.

61.  Indeed, Mr Yim must have recognised this.  He did not apply to amend the Notice specifically to challenge the earlier decisions of the ICU.  Instead, he argued that the decision authorising a widening to 5 m must have incorporated or implied within it a fresh decision to authorise the building of a shopping arcade.  The Decision was a consideration de novo.  So (Mr Yim submitted) it was open without more to challenge everything, including the earlier decision to permit the construction of the shopping arcade.

62.  But I disagree with Mr Yim.  If I quash the Decision to widen the passageway to 5 m, one is left with the previous approval of a shopping arcade with a passageway of only 4.5 m.  My quashing of the Decision to widen will not undo the earlier decision.  Not having been challenged within the time limited for judicial review, the earlier decision must be deemed to have been accepted, warts and all.  It should stand whether or not the ICU acted outside of its jurisdiction in making it.

B.    Main Ground 2: Ultra vires under Instrument

63.  The Instrument authorises the ICU to approve “minor alteration and addition works” falling within one or more of 13 categories set out in its Annex 1.  Of those 13 categories, the only one that is relevant to the present case is Category 9: “Improvement works”.

64.  Mr Yim argues that the widening of the passageway cannot constitute “improvement works”.  If so, the ICU could have had no authority under the Instrument to approve the proposed widening.

65.  Mr Yim suggests that the term “improvement works” should be confined to:-

“building works which improve the value of certain building elements already included, but does not include building works which change the user or usage of those building elements”.

66.  Here the user of the Open Foyer Area (Mr Yim says) is being changed.  It was originally a public circulation space and “conduit link”.  It will become a shopping space.  Such conversion goes beyond mere enhancement of existing building elements.  I note that “conduit link” is an expression which Mr Yim uses to designate an area through which residents and other members of the public pass to get from one point to another.

67.  I am not persuaded by Mr Yim’s submission.

68.  Whatever “improvement works” are, they must include a proposal to widen the previously approved width of a passageway.  It therefore seems to me that the ICU’s approval of the proposal to widen the passageway in the Extension ground floor falls squarely within the scope of “improvement works”.

69.  I stress that the only matter under review before me is the Decision to widen the passageway from 4.5 to 5 m.  Mr Yim repeated his submission that such Decision must be treated as including an approval of the construction of shops in the Open Foyer Area.  He maintained that it was still open to this Court to consider at this late stage whether the original decision to allow shops to be built in the Open Foyer Area was within the ICU’s jurisdiction over “improvement works”.

70.  As I have said, I do not think that Mr Yim’s argument is correct.  I do not believe that it would be right in the circumstances here to re-open the original decision to authorise the building of shops.

71.  But, in any event, in my view the original decision to permit shops and a 4.5 m passageway to be built in the Open Foyer Area would also have constituted “improvement works” within Annex 1.

72.  I do not see why the expression “improvement works” should be artificially restricted in the way Mr Yim suggests to works which do not change the user of a given space or building element.  “Improvement” in its natural and ordinary meaning merely connotes that proposed works will “enhance” the value of a site.

C. Main Ground 3: Application of MOE

73.  As its name suggests, the MOE is a code of practice issued by the BA which “provides guidance on compliance” with the requirements for means of escape laid down in Building (Planning) Regulations s.4(1).

74.  MOE §7 sets out in a Table 1 and its Notes :-

“[a] guide to assessing the requirement for means of escape, or the capacity or population of various portions of a building, or the number of persons and population density within a building”.

75.  According to Category (h) of Table 1, where the basement, ground floor or 1st or 2nd floors of a building are intended for use as “Shopping arcades, department stores and shopping area,” then a factor of 3 should be used to represent “usable floor area” in sq. m. per person. 

76.  Table 1 also has the following Notes:-

“(i)  For definition of ‘usable floor area’ see paragraph 4.  For uses in category(g) & (h), the usable floor area shall include the public circulation space as it normally forms part of the premises, except for shopping arcades where a notional arcade width of 2.5 m and 3.0 m for single-loaded and double-loaded shopping malls respectively will be used.

....

(v)  For any use not specified in this table, the Building Authority should determine the factor to be used.

(vi)  The Building Authority recognizes actual counting as a reliable way to establish the population of a building.”

77.  Mr Yim criticises the ICU’s Decision insofar as it was based on Table 1 Category (h).  Mr Yim argues that, since the Extension ground floor is a “conduit link” between surrounding residential blocks and the nearby MTR or bus stations, the ICU ought to have proceeded on the basis of Table 1 Note (v). 

78.  As a “conduit link,” the Extension ground floor (Mr Yim submits) is not a mere arcade.  Its true nature is not covered by the categories listed in Table 1.  Fire exits and routes (Mr Yim says) should not then have been assessed on the basis of Category (h).  Instead, an appropriate factor should have been determined based on actual conditions in the Extension ground floor.

79.  I am not persuaded by the argument.

80.  The Shorter Oxford English Dictionary (6th ed., 2007) defines an “arcade” as:-

“A passage arched over; any covered walk or avenue, esp. with shops etc. along one or both sides.”

81.  Given the definition, I do not see how it can be said that, in using the factor of 3 stipulated in the MOE for shopping arcades, the ICU erred.  Coining the word “conduit link” to describe the Extension ground floor cannot advance the matter.  An “arcade” is a “conduit link” in the sense used by Mr Yim.

82.  Mr Fok has observed that, in reality, what Mr Wong and other residents are unhappy about is the inadequacy of the escalators between the upper and ground floors of the Extension. 

83.  The escalators may be too slow to cope with the peak hour pedestrian flow between the 2 floors of the Extension.  As a result, the escalators become a bottleneck which slows down the flow (as people wait for a moving step to become available to convey them up or down the Extension). 

84.  If that is the case, Mr Fok submits that even widening the passageway will not solve the actual problem.  The escalators will still be inadequate for the flow.  There will still be pedestrians queueing in the passageway, no matter how wide the latter may be.

85.  Mr Yim acknowledged that there was force to Mr Fok’s observation.  But he contended that congestion was also due to pedestrians converging into the passageway from different directions, including from the buildings surrounding the Extension.

86.  That may or may not be the situation.  But I am not sure where Mr Yim’s response to Mr Fok leads.  Without any analysis by Mr Yim as to how (if at all) the ICU’s application of the MOE has specifically caused difficulty with converging flows of pedestrians, I cannot say that the ICU’s Decision was flawed.

D. Main Ground 4: Legitimate expectation from PNAP 30

87.  PNAP 30 provides:-

“Centralized Processing of Building Plans

Purpose

The purpose of the centralized processing system for building plans is to ensure that all interested government departments are consulted and that their comments on private development proposals are collated by the Building Authority (BA) within time limits allowed for processing building plans.  It also serves the purpose of making Buildings Department (BD) a focal point where issues arising from private building development precipitate.  This practice note announces additional measures and guidelines to streamline and expedite the processing of building plans.

....

Resolution of issues arising from referral of plans

4.  Available comments of other governmental departments are incorporated in approval or disapproval letters.  Adverse comments falling within the purview of the Buildings Ordinance and constituting a fundamental issue in the context of PNAP 272 [concerning the Building Approval Process] are included as disapproval items.  All other comments are simply conveyed as such in separate paragraphs for the information of APs, RSEs, and their clients, but approval or disapproval letters by BD are transmitted by a separate letter.

5.  When there are different views taken by APs or RSEs from a governmental department commenting on a submission of building plans, the BA will arbitrate and take decisions on matters governed by the Buildings Ordinance, according to the policies and procedures he adopts to enforce environmental, health and safety standards for buildings and building works.  For all other comments relating to matters not governed by the Buildings Ordinance, APs and RSEs may approach the relevant government departments direct.  In the event that there are divergent requirements from different government departments, BD will organise meetings with the parties concerned with a view to resolving the problem.

....”

88.  When processing the revised plans for widening the passageway, the ICU consulted the District Planning Officer/Sai Kung and Islands (the DPO).  He made the following comment:-

Statutory Comments

The subject site falls within an area zoned ‘Residential (Group A)’ (‘R(A)’) on the approved Tseung Kwan O Outline Zoning Plan No. S/TKO/15 (the OZP).  According to the Notes of the OZP, shop and restaurant are always permitted on the lowest three floors of a building under ‘R(A)’ zone.  I have no statutory planning objection to the proposed shops and restaurants.

Other Comments

I would like to reiterate my previous comment that the subject site is subject to a Planning Brief for Public Rental Estate and Home Ownership Scheme in Area 73A, Tseung Kwan O endorsed by the Sai Kung and Islands District Planning Conference agreed to be 414,714 m² (including 6,780 m² for commercial GFA).  Given that the existing total commercial GFA is 6,298 m², the proposed additional commercial GFA as shown on the current building plans would exceed the total agreed commercial GFA (i.e. 6,780 m²) as stipulated in the Planning Brief.  As the total commercial GFA will deviate from the limit given in the Planning Brief, agreement from DipCON should be sought.”

89.  The ICU did not consult the Housing Department in the course of arriving at the Decision to approve the widening of the passageway.

90.  Mr Yim submits that PNAP 30 (especially the first paragraph) gives rise in the public to a legitimate expectation that all relevant Government departments will be consulted before a decision to approve plans is made.

91.  Mr Yim further submits that the ICU was obliged under PNAP 30 to deal with the DPO’s comment on the Planning Brief.  Mr Yim criticises the ICU for failing to resolve the conflict between the plans for the Extension ground floor and the Planning Brief.

92.  Finally, Mr Yim suggests that the ICU ought to have consulted the Housing Department.  Had the ICU done so, the Housing Department would have been bound to convey the objections to the revised plans of numerous residents around the Extension.

93.  I do not accept Mr Yim’s contentions.

94.  First, for a legitimate expectation to arise, there must be a clear representation by a public body. 

95.  I am unable to read PNAP 30 as anywhere representing to the world at large that every conceivably relevant Government department will be consulted before building plans are approved.  PNAP 30 simply informs APs and RSEs about the procedures which should be followed if they wish their plans to be approved expeditiously by the BA.

96.  Second, from a building point-of-view, the DPO had no objection to the plans.  He merely suggested that DipCON be contacted because of the potential conflict with the Planning Brief. 

97.  Third, the Planning Brief is only a guideline.  It has no statutory or binding force.  Nor does it concern the structural safety or integrity of a building. 

98.  An apparent conflict with the Planning Brief would not, accordingly, be a legitimate basis for the BA or ICU to reject plans.  Their remit is confined to building matters.  The DPO’s comments were instead conveyed to The Link by the ICU in accordance with PNAP 30 §4.  It would then have been for The Link to deal with DipCON as appropriate.  Where necessary, the BA may mediate between DipCON and The Link’s representatives along the lines set out in PNAP 30 §5.

99.  Fourth, I disagree that PNAP 30 requires the Housing Department to be consulted.  As Mr Fok points out, PNAP 30 does not require a building’s property management agents or owners to be consulted before a decision to approve a building plan.

IV. CONCLUSION

100.  Mr Wong’s main grounds for judicial review of the ICU’s Decision all fail.  The derivative grounds therefore also fail.  The judicial review is dismissed.

101.  There will be the following Order Nisi:-

(1)  The Director and the Authority are to have their costs of the judicial review (including Mr Wong’s application to add the non-divestiture ground).

(2)  The latter costs are to be taxed if not agreed.

(3)  Mr Wong’s own costs are to be taxed in accordance with Legal Aid Regulations.

102.  The Authority appeared at the substantive hearing as an Interested Party. 

103.  Mr Yim has observed in his Reply Skeleton that, typically in a judicial review, only a Respondent should have its costs.  If a party desires to appear as an Interested Party, it should normally bear its own costs.

104.  I accept the general principle stated by Mr Yim. 

105.  But here the Authority was constrained to appear because of the stance that the Authority had not divested itself of the Extension ground floor.  It was appropriate for the Authority itself to appear, if only to make it clear that the Authority did not presently claim an interest in the Extension ground floor.  It is for that reason that I believe the Authority should have its costs.