LAU KWONG MAN v. THE DIRECTOR OF ENVIRONMENTAL PROTECTION AND ANOTHER

HCAL 1310/2021

[2022] HKCFI 1466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1310 OF 2021

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J U D G M E N T

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A.  Introduction

1.  The West New Territories Landfill (“WENT”) has operated since the 1990s, serving as the largest waste disposal site in Hong Kong. The Government expects the WENT’s capacity to be exhausted in around 2026 and has proposed to extend the site (“WENTX Project”). Within the Government, the project is mainly driven by the Environment Bureau (“EB”), headed by the Secretary for the Environment (“SEN”), and the Environmental Protection Department (“EPD”) headed by the Director of Environmental Protection (“DEP”).

2.  The WENTX Project has progressed to the point where, on 10 September 2021, funding in the sum of HK$44 billion odd was approved by the Finance Committee (“FC”) of the Legislative Council (“LegCo”) for part of the construction works and the tendering for such works (“FC Approval”). In public finance, obtaining FC’s approval is technically known as “upgrading the project to Category A”.

3.  Upgrading a project or part of a project to Category A has to undergo specified procedures in the LegCo’s Capital Works Program. On 22 February 2021, DEP and SEN submitted a paper (“PEA Paper”) to the Panel on Environmental Affairs (“PEA”), proposing the upgrade. After collecting the views of the PEA, on 24 March 2021, DEP and SEN submitted a paper (“PWSC Paper”) to the Public Works Subcommittee (“PWSC”) of the FC, requesting the PWSC to recommend to the FC to approve the proposed upgrade. The PWSC agreed to make the recommendation, which was approved by the FC on 10 September 2021. I shall refer below to the Government’s application for funding in this instance as the “2021 Funding Application”.

4.  WENT, as its name suggest, is located in western New Territories, geographically within the Tuen Mun District and close to the Lung Kwu Tan area. Perhaps understandably, stakeholders in the area, including residents of the Lung Kwn Tan Village (“LKT Village”), did not find the WENTX Project attractive. They were concerned with heavy waste disposal vehicles travelling through the area and the accompanying nuisance. The Government has engaged in a long discussion with residents from the LKT Village and Tuen Mun since the early 2010s, through the Tuen Mun District Council (“TMDC”), the representatives of the LKT Village, etc.

5.  At one point, the LKT Village representatives proposed constructing a tunnel which would allow vehicles to reach the WENT (and its extension, i.e. WENTX) without passing through the vicinity of the village (“HPR Tunnel Proposal”). The tunnel would cut through the Castle Peak and connect the WENT to Hong Po Road, Lam Tei of Tuen Mun (“HPR Tunnel”).

6.  In the PWSC Paper dated 24 March 2021, corresponding changes on local transport infrastructure accompanying the WENTX Project were mentioned. It was said a preliminary study has shown that the HPR Tunnel Proposal was hardly cost-effective and the Government proposed to explore the proposal in the context of a study related to the “Lung Kwu Tan Reclamation and the Re-planning of Tuen Mun West Area”.

7.  On this basis, the Applicant (who is an indigenous villager of the LKT Village) believed that the Government had effectively abandoned the HPR Tunnel Proposal. By a Form 86 dated 17 September 2021, he seeks leave to apply for judicial review of the following decision, as identified in the Form 86 (“Decision”):

In or around March 2021, either the DEP or the SEN decided that the Hong Po Road Tunnel Proposal (as defined below) would form no part of the “Nim Wan Road and Deep Bay Road Improvement Scheme” and would receive no funding as part of the WENT Landfill Extension.

8.  The SEN and the DEP are named as the Putative Respondents to the intended challenge. But the Decision the subject of intended challenge has been later re-cast by Counsel for the Applicant as the Government’s failure to apply for funding for the HPR Tunnel Proposal as part of the WENT Landfill Extension.

9.  The Applicant challenged the Decision on the bases that (1) the Government has failed to consider some representations made to the LKT Village in respect of the HPR Tunnel Proposal, (2) the Government has unlawfully abdicated its decision-making function and (3) the Decision is Wednesbury unreasonable.

10.  On 4 October 2021, I directed an inter partes oral leave hearing and for the parties to file evidence and written submissions in advance. The leave hearing was heard on 23 May 2022. The Applicant was represented by Counsel Mr Valentine Yim and Mr Jeff Chau. The DEP and SEN were represented by Counsel Mr Yang-Wahn Hew and Ms Jess Chan, Acting Assistant Principal Government Counsel.

11.  At the conclusion of the hearing, I reserved my judgment. This is my Judgment.

B.  The Background

B.1  The Geography around the WENT

12.  It is convenient first to set out something about the geography around the WENT.

13.  The size of the WENT is about 110 ha. It is located in Nim Wan, which is north of Lung Kwu Tan. Both Nim Wan and Lung Kwu Tan are in West Tuen Mun, which is the rural/undeveloped part of the district and is away from the urbanized Tuen Mun town centre at the East. The town centre to the east and the rural west are separated by the Castle Peak between them.

14.  Currently, vehicular access to the WENT in West Tuen Mun is carried by one main road running along the western coastal line of Tuen Mun. In the north bound direction, the road runs from Lung Mun Road, into Lung Kwu Tan Road, into Nim Wan Road, and then to the Deep Bay Road. Nim Wan Road cuts through the WENT, and the Nim Wan Road is divided into the South section and the North section by the landfill. There is an on-going project to improve the North section of Nim Wan Road and the Deep Bay Road leaving from the rear entrance of the WENT (“NWR DBR Upgrading Proposal”).

15.  The proposed HPR Tunnel, if constructed, would cut through the Castle Peak and connect the rural West Tuen Mun from the town centre at the East from the access point at Hong Po Road. If waste disposal vehicles access the WENT from the town centre through the HPR Tunnel, they will not have to travel along Lung Mun Road and Lung Kwu Tan Road. In other words, they will not travel through the LKT Village which is next to the Lung Kwu Tan Road.

B.2  On-going Government capital works projects in Tuen Mun

16.  SEN and DEP have said that the leave application was made on the incorrect factual assumption that the HPR Tunnel Proposal was part the NWR DBR Upgrading Project which is then part of the WENTX Project.

17.  In the Government’s affirmation evidence, Mr Chan Siu Wing, the Assistant DEP, went into great length in setting out the scope of the various infrastructure projects developed by the Government in the area and explained that the HPR Tunnel Proposal has never been part of the WENTX Project nor the NWR DBR Upgrading Project. The argument is that it could not be said that the Government has made any deliberate decision to exclude the HPR Tunnel Proposal from the 2021 Funding Application.

18.  Large scale infrastructure projects obtaining funding from the Capital Works Program of the LegCo are known as “capital works projects”. These projects will have to apply for funding from the LegCo at different stages for different purposes. There are currently four on-going capital works projects in or around Tuen Mun.

19.  The first one is the WENTX Project. This project was commenced many years ago. The extension area was originally designed to be about 200 ha but subsequently reduced to about 100 ha. This project is assigned the project number “165DR”. This project has progressed to an advanced stage. As said, funding for part of the construction works has already been approved by the FC.

20.  The scope of the WENTX Project has undergone some amendments over the years. In 2014, when the Government had to obtain the FC’s approval for conducting consultancy study of the project, the WENTX Project included a realignment work of part of the Nim Wan Road, but after the reduction of the extension area, that realignment would no longer be necessary. Therefore, by 2021, realignment work of part of the Nim Wan Road was no longer within the scope of the WENTX Project.

21.  However, there is a new plan to construct a new section of Nim Wan Road (known as Nim Wan Road (South)) which would merge into Nim Wan Road at some point (“NWR South Project”). The NWR South Project is not included within the scope of the WENTX Project. This project is assigned the number of “PWP 6887”.

22.  The third project is the NWR DBR Upgrading Project mentioned above. The project involves upgrading Nim Wan Road from a single track access road to a standard single two-lane carriageway, and widening of a section of Deep Bay Road. It is also not within the scope of WENTX and is assigned a separate project number of PWP 6878 TH. This project has at least progressed to the stage where a consultancy study on the feasibility of the project has been commissioned in 2015 (“2015 Feasibility Study”).

23.  In Mr Chan’s affirmation, he described the NWR South Project and the NWR DBR Upgrading Project as “associated road works” of the WENTX Project.

24.  The last capital works project concerns the Government’s new initiative for reclamation at Lung Kwu Tan and re-planning of Tuen Mun West. It is said that the Civil Engineering and Development Department (“CEDD”) of the Development Bureau will reconsider the road networks in the area through a Planning and Engineering Study (“P&E Study”). Apparently, this project is at quite an early stage and has not progressed beyond this P&E Study. I am not informed if a project number has been assigned to it yet. The Government’s position is that the HPR Tunnel Proposal will be re-examined under this P&E Study.

B.3  The genesis of the HPR Tunnel Proposal

25.  Back in 2013, the WENTX Project was at the stage where a consultancy study had to be commissioned in order to bring the project forward. In June 2013, the SEN tried to obtain funding approval for this purpose. But the funding application did not proceed very smoothly. In fact, FC/PWSC meetings discussing that funding application were adjourned multiple times and it was only approved in December 2014.

26.  In the approval process, it appears that some of the resistance came from LegCo members (including Dr Lau Wong-fat) representing the interests of Tuen Mun and the LKT Village in particular. Dr Lau was also the then Chairman of TMDC and often signed as one of the LKT Village representatives in letters issued to the Government.

27.  Counsel representing the Applicant came very close to suggesting that there was some sort of political compromise between the Government and the LKT Village whereby Dr Lau agreed not to block the funding application for the consultancy study in exchange for the Government’s promise to properly address the request of LKT Village (and Counsel would suggest the request resulted in the HPR Tunnel Proposal).

28.  It is also the Applicant’s case that, in the process of negotiation, the Government made some representations (which Counsel defined as “the Community Interest Representation” and the “Coordination Representation”) to the LKT Village in respect of the HPR Tunnel proposal. I shall return to these representations at a convenient juncture later in this Judgment.

29.  The HPR Tunnel Proposal was first put forward in a letter dated 6 January 2014 issued to the EB and undersigned by Dr Lau, Mr Lau Wai Ping and Mr Lau Chi Shing as the representatives of the LKT Village. The idea was mentioned again in a letter dated 10 September 2014. That was amidst the repeated adjournments of FC/PWSC meetings.

30.  In a FC meeting on 21 November 2014, Dr Lau expressly indicated that he would not block the WENTX Project on the condition that “the requests of Tuen Mun residents would be properly addressed”.

31.  A few days later, the LTK Village Representatives issued another letter dated 27 November 2014 to the EB, reiterating their request to build the HPR Tunnel. It was explained in the letter that the LTK Village preferred the HPR Tunnel Proposal because heavy vehicles could then travel from the town area to the landfill directly without passing through Lung Kwu Tan Road, i.e. without passing through the LKT Village.

32.  The 27 November 2014 letter was favourably replied to by the SEN in a letter dated 5 December 2014. The SEN stated:

The Government has been paying attention to the long term development of transport facilities and roads in the area near Lung Kwu Tan Road, nim Wan Road, Deep Bay Road, the landfill, as well as in the western parts of Tuen Mun and Yuen Long. Regarding the feasibility study of improvement of the Nim Wan Road (Yuen Long section) and Depp Bay Road, the EPD and other relevant Government departments has set up a task force back in 2013, planned the scope and direction for a preliminary study, and consulted the relevant district councils and rural Committee respectively. We are now planning to commence the feasibility study for the road at the same time when the FC of the LegCo has approved the funding for investigation consultancy study for the WENTX Project.

It was proposed in your letter than a tunnel should be constructed to connect Hong Po Road Lam Tei and the area near landfill in Tsang Tsui so as to dovetail with the road links for the WENT after its extension and other nearby facilities being planned, and the overall transport facilities in western parts of Tuen Mun and Yuen Long. We are very grateful for the detailed opinion and concrete analysis from the LKT Village, and will include this HPR Tunnel Proposal in the consultancy study for the NWR DBR Upgrading Project for detailed study, follow-up and consideration. It is expected that the consultancy study may be completed in about two years after the award of the consultancy agreement.

Finally, I would like to thank Chairman Lau Wong-fat again for expressing at the meeting of the FC of the LegCo on 21 November that he would not object to the investigation consultancy study and funding application for the WENTX Project having taken into account the broad picture. I hope that in the days to come, I can continue to maintain close contact with Chairman Lau and representatives of the LKT Village, and actively listen to and respond to the villagers’ opinions and demands.

33.  The Government’s funding application for the consultancy study for the WENTX Project was then approved by the FC.

34.  The reference to “consultancy study for the NWR DBR Upgrading Project” in SEN’s letter is formally known in the LegCo documents as “West New Territories Landfill – Study of Road Access (Upgrading of Nim Wan Road and Deep Bay Road) – Feasibility Study”. The parties referred to this study as the “2015 Feasibility Study”.

35.  The HPR Tunnel Proposal was, indeed, studied as part of the 2015 Feasibility Study alongside the NWR DBR Upgrading Project.

B.4  The 2015 Feasibility Study

36.  Whilst both the NWR DBR Upgrading Project and the HPR Tunnel Proposal were covered in the 2015 Feasibility Study, the Government has emphasized that the two items are separate projects and were only brought together in one consultancy agreement for administrative convenience and economic efficiency. That argument was made from the perspective that the Decision challenged as originally cast in the Form 86 was premised on the wrong factual basis that the HPR Tunnel Proposal was part of the NWR DBR Upgrading Project.

37.  The importance of whether the HPR Tunnel is part of the NWR DBR Upgrading Project subsided after the Applicant re-cast the Decision he seeks to challenge. But the purpose of the HPR Tunnel Proposal and its relationship with the WENTX Project remains relevant even after the re-casting.

38.  Perhaps a convenient way to discern the purpose of the HPR Tunnel Proposal and its relationship with the WENTX Project is to look at the Brief for the 2015 Feasibility Study issued by the Government. It materially stated:

2.  Description of the Project

2.1  Developed in the early 1990s, [the WENT] is one of the three operating strategic landfills in Hong Kong. Currently, vehicles gain access to the WENT Landfill mainly from the southwest Tuen Mun (through Butterfly Beach) via Lung Mun Road, Lung Kwu Tan Road and the southern section of Nim Wan Road (NWR). This passage is mainly a single two-lane carriageway leading to the WENT Landfill.

2.2  NWR, a segment of which forms part of the passage to the WENT Landfill, was once a through road connectint the coastal areas of Tuen Mun and Yuen Long at the northwest New Territories. Since the commissioning of the WENT Landfill has been closed to the public, with the remaining NWR separated into two parts, the southern section, as mentioned in Clause 2.1 above, and the northern section.

2.3  The northern section of NWR, which is single-track substandard road, is located within Yuen Long. It extends northeasterly from the rear entrance of the WENT Landfill through Deep Bay Raod (DBR) to Lau Fau Shan of Yuen Long. Vehicular access to the WENT Landfill via its rear entrance through the northern section of NWR is currently restricted.

2.4  According to the latest forecast and planning, the existing WENT Landfill will be exhausted in late 2018-2019 and afterwards a landfill extension in the vicinity will be operated to continue the waste disposal. The exhausted landfill will then be restored for subsequent afteruse development works. The landfill restoration will take about 2 to 3 years to complete while the construction period of afteruse development would depend on the type and extent of facilities to be provided. By early to mid 2020s, the after uses of the restored WENT Landfill will be opened to the public for facility enjoyment. The section of NWR within the WENT Landfill will be re-opened to the public upon completion of restoration and commissioning of the afteruses, making NWR a through road again. By that time, although waste-disposing lorries and heavy vehicles accessing to the WENT Landfill (extension) and landfill related facilities will still primarily rely on the existing road (through Lung Mun Road) travelling from Tuen Mun, the public will be able to access the afteruse facilities, government facilities and potential developments using both the southern and the northern sections of NWR. It is anticipated that the road standard on NWR and DBR will be in higher demand due to increasing traffic flow and safety concern. Thus, there is a need to investigate the feasibility of upgrading the NWR and DBR.

2.5  Subject to the review under the Assignment, the Project comprises the recommended upgrading works of the existing NWR and DBR, including associated road connections if any, from the WENT Landfill rear entrance at Ha Pak Nai to Lau Fau Shan. It should be noted that the improvement of the NWR section between Lung Kwu Tan Road and the WENT Landfill main entrance as well as reopening of the NWR section within WENT Landfill are to be considered under the development of the WENT Landfill extension and afteruses and other project(s), and they do not form part of this Project. The Consultants shall, however, take into account the planned alignment of the southern section of NWR and the section to be reopened within the WENT Landfill for the prupsoe of making connection with the northern section of NWR when proposing the road upgrading options.

2.7.  Besides the upgrading works of the existing roads, the public has suggested the provision of alternative routes to the WENT Landfill from strategic location of Tuen Mun and Yuen Long, such as Pillar Point, Hong Po Road, Shenzhen Bay Bridge and Kong Sham Western Highway, for futher enhancing the accessibility.

2.8  To address the suggestions from the public, the Environmental Protection Department (EPD) has committed to explore the end and feasibility of alternative routes for facilitating the overall district planning of Tuen Mun and Yune Long.

3.  Objectives of the Assignment

3.1  The Consultants shall carry out a feasibility study (hereafter called “the Assignment”) meeting the following objectives for the upgrading works of NWR and DBR:

(a)  to analyse the amount of traffic need accessing the WENT Landfill and its extension, landfill related facilities, afteruse facilities, government facilities and potential developments nearby as the basis for proceeding the proposals of upgrading works. Road safety concern shall also be taken into consideration;

(b)  to propose evaluate and recommend the upgrading options for existing NWR and DBR, including associated road connections if any, from the WENT Landfill rear entrance at Ha Pak Nai to Lau Fau Shan, and to establish the feasibility for the recommended upgrading option. The upgrading options may include improvement, realignment and/or widening of the existing NWR and DBR, and/or connections to nearby existing and/or proposed public road(s);

(c)  to carry out preliminary design of the recommended upgrading option. The preliminary design shall include any re-providing works of public facilities due to the impact of the recommended upgrading works. The preliminary design will be proceeded to further investigation and detailed design in the Design and Construction Stage;

(d)  to carry out necessary studies, investigations, assessments, surveys and submissions to meet statutory and government’s requirements for the recommended upgrading option;

(e)  to confirm the environmental acceptability associated with the recommended upgrading option, with particular attention upon the impacts on the environmental sensitive areas nearby; and

(f)  to formulate the implementation programme and cost estimate for the recommended upgrading option.

3.2  In addition to the major objectives of upgrading NWR and DBR, the Consultants shall achieve the following tasks related to the study of alternative routes:

(a)  to address suggestions on alternative routes (connecting the WENT Landfill to strategic locations of Tuen Mun and Yuen Long, such as Pillar Point, Hong Po Road, Shenzhen Bay Bridge and Kong Sham Western Highway) which have been raised by the Tuen Mun District Council members, Yuen Long District Council members, rural committees, village representatives and other relevant stakeholders; upon agreement from the Director’s Representative, to identify not more than 5 alternative route options from these suggestions;

(b)  to explore the need and feasibility of alternative route options with considerations on traffic benefit, engineering feasibility, land impact, environmental concerns and cost-effectives aspects; and

(c)  to consolidate findings for the alternative route options which shall provide useful materials to facilitate strategic planning of the districts and, subject to the need of future developments, to allow further investigation and detailed design in the future.

4.  Description of the Assignment

4.1  This Assignment mainly covers planning, investigation and preliminary design for the upgrading of NWR and DBR for achieving the objectives listed in Clause 3.1. It consists of the following activities:

4.2.  The Consultants shall also explore the need and feasibility of alternative routes from strategic locations of Tuen Mun/Yuen Long to the WENT Landfill, its associated facilities and potential developments nearby. The scope of study includes:…(b) the Alternative Route Options shall at least include i) a tunnel option connecting WENT Landfill and Hong Po Road through Tsing Shan [i.e. Castle Peak]; and…

39.  Geographically, the extended area of the landfill is at the South of the original WENT. After exhaustion, the WENT will be developed into after use facilities. It is expected that traffic flow to the after use facilities will be made through the Northern section of the Nim Wan Road and the Deep Bay Road. On the other hand, traffic flow to the extended area of the WENT will be made through Lung Mun Road, Lung Kwu Tan Road and the Southern section of the Nim Wan Road. But it is not as clear cut. It can be seen references were often in a wide and general context, such as “traffic need accessing the WENT Landfill and its extension, landfill related facilities, afteruse facilities, government facilities and potential developments nearby”, “overall district planning” for either items.

40.  It can be seen from the Brief that the NWR DBR Upgrading Project, described as the “major objectives”, is the focus of the study. The study into this project is dealt with in much more detail than the HPR Tunnel Proposal. The study into the NWR DBR Upgrading Project is expected to cover detailed design in the construction stage, actual implementation programme and cost estimate. On the other hand, the study related to the HPR Tunnel Proposal is couched in vague and general terms. Indeed, the HPR tunnel is only meant to be explored with four other Alternative Route Options. The impression to be gathered from the Brief is that the Alternative Route Options (including the HPR Tunnel Option) are a tag-along to the NWR DBR Upgrading Project in the study.

41.  The deliverables of the study are a list of reports. Among them is a “Report on the Feasibility of Alternative Route Options” (“Alternative Routes Report”). There is also a “Traffic Impact Assessment Report”.

42.  The final version of the Alternative Routes Report was delivered on 28 August 2019. Chapter 6 concerns the evaluation of the HPR Tunnel Proposal (as Option 1 among the 5 Alternative Route Options). It briefly covers potential issues on the environment, cultural heritage, waste generated from tunnel excavation and so on in respect of the proposed tunnel. There is a two-paragraph section called “Impact on Local Community” which provides:

Option 1 allows the refuse collection vehicles to be diverted from Lung Kwu Tan Road to Hong Po Road. It will likely earn support from the Lung Kwu Tan villagers.

However, there will be increased odour, air and noise impact to Tsz Tin villagers, residents in the planned Area 54 development and Siu Hong Court. Objections from the locals are likely.

43.  There is also short section on Cost as follows:

A broad-brush cost estimates is carried out in below Table 6.5

The cost estimate is intended to give an order of cost for option evaluation. The cost estimates must be reviewed when more geological information and planning assumptions are available for a more mature detailed design.

The project cost is estimated to be HK$10.7 billion (including the tunnel section and the approach road).

The tunnel length is the second shortest among the 5 options and hence the cost is comparable to Option 2 but significantly lower than Options 3 to 5.

Nevertheless, the construction and maintenance cost for the tunnel is still considered high. The cost-effectiveness will be low if the tunnel is just to serve the WENT Landfill.

Without other planning or traffic grounds, the cost performance of Option 1 will be poor.

B.5  Government reporting progress of 2015 Feasibility Study

44.  Whilst the consultant had only completed the final version of the Alternative Routes Report on 29 August 2019, apparently, they had kept the Government informed of the progress and the Government did pass on the progress to the LKT Village from time to time.

45.  In a Liaison Working Group meeting (within the TMDC) held on 19 August 2016, attended by a LKT Village representative and other stakeholders, it is recorded in the minutes that the representative from the EPD, a Mr Chan had reported the following:

(二) 連接新界西堆填區與市區的墜道可行性

顧問公司初步提供五個墜道走線方案，長度由2.8 至 6.7公里不等。鑑於建造墜道工程的複雜性，技術限制較多，以及對附近環境及土地用途引至的影響，顧問鍽石仍須就不同走線方安進行多方面的探測索及技術性研究；因此暫未能確定建議的可性行；

(2) Feasibility of a tunnel linking the West New Territories Landfill and urban areas

The consulting firm preliminarily provided five options for the tunnel alignment, with lengths ranging from 2.8 to 6.7kilometres. In view of the complexity of tunnel construction, the relatively greater technical restrictions and the impact on the nearby environment and land use, the consulting firm still had to conduct further explorations and technical studies on the different options for the alignment from a number of perspectives. Hence, the feasibility of the proposal could not be confirmed at this stage.

46.  Whilst it is said that the feasibility of constructing a tunnel was inconclusive, It can perhaps be sensed that the Government had a gloomy outlook.

47.  By letter dated 31 October 2018, the SEN wrote to the representative of LKT Village:

The Environmental Protection Department then engaged a consultancy firm to study 5 alternative tunnel options with reference to the opinions of the locals. The lengths of the tunnels range from 2.8km to 6.7km. Depending on the touring, the estimated project cost is about HK$10.7 billion to 21.2 billion. With a daily flow of around 300 refuse collection vehicles, our preliminary information is that the tunnel options are hardly cost-effective.

The Chief Executive put forward the vision for the development of Lantau Island in the 2018 Policy Address covering the coastal area of Tuen Mun, including development areas like the re-planned River Trade Terminal area and Lung Kwu Tan, which are to be connected with a new transport infrastructure network. Therefore, in response to the concerns of the villagers, the Environment Bureau, together with the Development Bureau, will exchange views with you on how to improve the transportation infrastructure in the Lung Kwu Tan area.

48.  By this stage, it may be thought that there is an indication or subtle suggestion that the Government was not keen to pursue the HPR Tunnel Proposal (or the four other alternatives) in its original context due to cost-effectiveness consideration, but proposed to explore the option later in another infrastructure project, i.e. the “Lantau Tomorrow Vision”.

49.  The subtle suggestion in the 31 October 2018 letter was re-iterated again in a TMDC meeting held on 5 March 2019. This time, the Lantau Tomorrow Vision was referred to by name. The original is in Chinese. §88(iii) of the minutes is translated below:

Some years back, villagers had made a proposal that a tunnel should be built for use by refuse collection vehicles. In view of this, the EPD had explored using tunnels of different alignment, including the option of connection with Hong Po Road, to connect landfill with Tuen Mun/Yuen Long when studying improvements to Nim Wan Road and Deep Bay Road. The options were not cost-effective if only the movements of refuse collection vehicles were factored in. Yet, the Government did not rule out the possibility, and the EPD had proposed the Development Bureau (“DEVB”) consider such feasibility in view of the fact that the development of the whole Tuen Mun West and the needs for infrastructure there would be reviewed under the Lantau Tomorrow Vision in the future. The authority would take the above proposal into account as well in its studies. In addition, if the Lung Kwu Tan reclamation plan was feasible, there might be new roads leading to Nim Wan Road in the future to ease the burden on roads in that area.

B.6  The PEA Paper and the PWSC Paper

50.  The next appearance of the HPR Tunnel Proposal is to be found in the PEA Paper and the PWSC Paper when the Government made the 2021 Funding Application for WENTX in early 2021.

51.  In the Form 86, the PWSC Paper is said to embody the Decision. But later, Counsel for the Applicant suggested that the PWSC Paper contains the reasons for the Decision.

52.  As said, the PWSC Paper dated 24 March 2021 was authored by the SEN and the DEP to invite members of the PWSC to recommend the FC to approve the funding for the construction works of WENTX. The paper is 20-pages long. It first sets out the problem which the WENTX Project seeks to solve, the recommendation which the PWSC is invited to make to the FC, the scope and nature of the project, the justification for the scope, and a breakdown of the HK$44 billion sought. The remaining major sections of the paper are “Public Consultation” and Environmental Implications” and “Heritage Implications”. Obviously, these sections are meant to address potential concerns from society regarding the WENTX Project.

53.  In the Public Consultation section, §19 lists out the various initiatives to address the comments raised by local stakeholders. §19(h) reads as follows:

Improving local transport infrastructure – Regarding the upgrading of Deep Bay Road, Nim Wan Road (North) and Nim Wan Road (South) to a standard single two-lane carriageway, we have completed the feasibility study and created public works project items correspondingly, and will implement the items by phases. The earliest road improvement plans for the Nim Wan Road (South) and Deep Bay Road sections will be gazetted later this year, to be followed by detailed design and related land resumption arrangements. Regarding the further proposal raised by local stakeholders on constructing a road tunnel to connect the WENT Landfill and Tuen Mun/Yuen Long, we have conducted a preliminary study on different alignment options, and the outcomes reveal different levels of difficulties and challenges. The cost effectiveness of the proposal can hardly be established given the existing population and traffic demand within the district. Looking forward, the Civil Engineering and Development Department (CEDD) is planning to commission the proposed “Planning and Engineering Study for Lung Kwu Tan Reclamation and the Replanning of Tuen Mun West Area” (the P&E Study), which will include a review of the strategic as well as local transport network. The Government will take this opportunity to re-examine the feasibility of the abovementioned tunnel proposal, with regard to the proposed Lung Kwu Tan Reclamation and the re-planning strategy. We also note that the CEDD will explore, under the P&E Study, the construction of new roads within the reclaimed area to serve as alternatives to Lung Kwu Tan Road for use by heavy vehicles. This will help address the residents’ concerns on environmental issues arising out of heavy vehicles travelling through Lung Kwu Tan Village; …

54.  The text conveyed a message similar to what was said by SEN/DEP in the 31 October 2018 letter and the 5 March 2019 TMDC meeting. But this time the infrastructure project in which the HPR Tunnel Proposal is to be explored is said to be “Lung Kwu Tan Reclamation and the Replanning of Tuen Mun West Area”, as referred to in the title of the P&E Study.

55.  An almost identical paragraph could be found at §12 at bullet point 7 of the PEA Paper dated 22 February 2021.

C.  The Decision

56.  The identity of the impugned decision the Applicant seeks to challenge has been the subject of debate between parties.

57.  The Decision identified in the Form 86 is quoted again for convenience:

In or around March 2021, either the DEP or the SEN decided that the Hong Po Road Tunnel Proposal (as defined below) would form no part of the “Nim Wan Road and Deep Bay Road Improvement Scheme” and would receive no funding as part of the WENT Landfill Extension.

58.  This does give the impression that the Applicant is suggesting that (a) the HPR Tunnel Proposal was originally within the NWR DBR Upgrading Project and the WENTX Project, (b) there was a positive decision by the Government subsequently to exclude the HPR Tunnel Proposal form the NRW DBR upgrading Project, and (c) the intended effect of such exclusion is that the HPR Tunnel Proposal would no longer receive funding as part of the WENTX Project.

59.  At §44 of the Form 86, it is stated that:

[the PWSC Paper] put forward the DEP’s Proposal which confirmed and embodied the decision of the Government to abandon the Hong Po Road Tunnel Proposal if the FC approves the Revised WENT Tunnel Extension.

60.  This again suggests that the Applicant originally thought the HPR Tunnel Proposal was within the WENTX Project, but now the scope of the WENTX Project was revised such that the HPR Tunnel was not included in the 2021 Funding Application (which covers the WENTX Project).

61.  There is some force in Mr Hew’s argument that the Applicant must have mistaken that the HPR Tunnel Proposal was within the scope of the NWR DBR Upgrading Project and the WENTX Project, such that there was a deliberate exclusion of the HPR Tunnel Proposal when its funding was not applied for in the 2021 Funding Application.

62.  This explains why Mr Chan’s affirmation went into detail explaining how the HPR Proposal has never been within the scope of the WENTX Project or the NWR DBR Upgrading Project. Funding for the HPR Tunnel Proposal could not have been included in the funding application for WENTX, or to receive funding as part of WENTX.

63.  Since the filing of evidence, the Applicant has re-cast the target of the intended challenge in a different light in the written submissions. At §3, by reference to the Governments’ letter to the Court dated 19 October 2021 proposing management directions, the Applicant said

it is now common ground that the Decision which the Applicants intends to challenge is the PRs’ decision not to apply for funding in building the Hong Po Road Tunnel as part of the WENT Landfill Extension.

64.  Mr Hew denied that there was any such common ground.

65.  Much has been said in the Applicant’s written submissions to “clarify” what the Decision under challenge was:

(1)  “the effect of the Decision is that the PRs have decided that they would not apply for the FC for funding in respect of the HPR Tunnel Proposal as part of the WENT Landfill Extension” (§27.2);

(2)  “the thrust of the Applicant’s challenge is not to overturn the PRs’ decision to apply for funding in respect of items which, as a result of the FC’s Approval, would receive funding as part of “165DR”. Rather, the Applicant’s challenge lies in the refusal of the PRs to apply for funding for the HPR Tunnel Proposal as part of the WENT Landfill Extension” (§27.5);

(3)  “the intended challenge is not that funding [for the HPR Proposal] under a particular “head” of “sub-heading” of funding under the Public Finance Ordinance, Cap 2. But rather, the challenge is that the Government did not apply for funding for the HPR Tunnel Proposal “under any head or subhead which relates to the WENTX Project” (§7).

66.  I think it is justified to think that, from the Form 86 to the written submissions, the Applicant has shifted the intended target of his challenge from (a) the exclusion the HPR Tunnel Proposal from the NWR DBR Upgrading Project (and thus the WENT Project) such that the HPR Tunnel would not benefit from the funding to be approved in the 2021 Funding Application, to (b) the failure to apply for funding for the HPR Tunnel Proposal “as a part of the WENTX Project”, whatever “as a part of the WENTX Project” means.

67.  The re-casting is perhaps necessitated by the awakening to the fact that the HPR Tunnel Proposal does not fall within the scope of the WENTX Project. It may also be driven by the desire to avoid the target of challenge being identified with the 2019 Funding Application which will run into Mr Hew’ argument on amenability (see below).

68.  Overall, I am satisfied that broadly speaking, the substance of the Decision identified in the Form 86 is that the Government did not apply for funding for the HPR Tunnel Proposal in March 2021 and that is broadly consistent with the Decision and intended challenge as now re-cast by Mr Yim. I am prepared to deal with the application on the basis that the Decision impugned is “the PRs’ decision not to apply for funding in building the Hong Po Road Tunnel as part of the WENT Landfill Extension”. I agree with Mr Yim that the Government would not suffer any prejudice arising from this.

69.  But I have some doubt about the Applicant’s determination to sever the subject of his intended challenge from the Government’s 2021 Funding Application and eventually the FC Approval:

(1)  In the Form 86, the Applicant seeks the interim relief that, pending the final determination of the current judicial review proceedings, that there be an interlocutory order restraining SEN and DEP from applying to the Treasury Bureau for release of any funds or creation of any subhead for the project. This prohibits the Government from doing what the FC Approval allows them to do.

(2)  In the context of delay, the Applicant insists that although the Decision is made around March 2021, it was only “crystalized” by 10 September 2021 upon the FC Approval.

D.  Is there a decision amenable to judicial review?

D.1  Argument as to amenability

70.  Mr Hew, in effect, submitted that the application should fail at the preliminary stage because the “purported decision” had never been made or because the Applicant has not identified a Decision amenable to judicial review. Most of Mr Hew’s submissions had in mind the Decision as cast in the Form 86, although he also tried to cover the Decision as re-cast.

71.  Mr Hew’s submissions are as follow (though not as in his original order):

(1)  This leave application is premised on the wrong factual presumptions that the HPR Tunnel Proposal is part of the WENTX Project and/or the NWR DBR Upgrading Project. In fact, the HPR Tunnel Proposal has never fallen within the scope of either projects and those two projects are also separate and distinct projects from each other. Thus, the Government’s 2021 Funding Application to upgrade part of the WENTX Project to Category A does not concern the HPR Tunnel Proposal at all.

(2)  The Government has not abandoned the HPR Tunnel Proposal. There is public information, for example as stated in the PWSC Paper, that the HPR Tunnel Proposal would be re-examined again through the P&E Study for Lung Ku Tan Reclamation and Re-planning of Tuen Mun West Area (“the LKT Reclamation Project”). Even if the the Applicant intends to challenge the Government’s failure to apply for funding for the HPR Tunnel Proposal, such challenge is premature at this stage.

(3)  The Decision has been superseded by the FC Approval. The Government’s PWSC Submission was but intermediary steps leading to the eventual FC Approval. It is well-established that FC Approval is a legislative act not susceptible to judicial review. It is underpinned by Article 73 of the Basic Law that the LegCo has the sole constitutional power to approve taxation and public expenditure and the courts have no concern with the merits of such decision nor even the manner in which such decision was made, Chan Kai Wah v HKSAR, CACV 126/20210 (unreported, 15 March 2011), at §17 (Hartman J).

D.2  Is the HPR Tunnel Proposal part of WENTX Project or the NWR DBR Upgrading Project?

72.  The argument was raised with the Decision as cast in the Form 86 in mind – that there was a deliberate exclusion of the HPR Tunnel Proposal from the WENTX Project or the NWR DBR Upgrading Project.

73.  If the HPR Tunnel Proposal has never been within the scope of the WENTX Project or the NWR DBR Upgrading Project, it could not be said that there was a positive (or perhaps deliberate) decision to exclude the HPR Tunnel Proposal from the Government’s PWSC Submission in March 2021. It can also hardly be said that there was a decision that the HPR Tunnel would not receive funding as part of the WENTX Project when all along the two things have always been separate items.

74.  As said, I am prepared to deal with the Decision as now cast by Mr Yim. That said, the relationship between the HPR Tunnel Proposal and WENTX is still relevant to the Decision as now cast. The relationship has implications on whether the Decision is one with substantive consequence or of a decisive nature.

75.  It is well-established that the courts will not entertain a judicial review application of decisions which are merely intermediate or procedural in nature, or which do not give rise to any substantive consequence or are not of a decisive nature. The courts’ judicial review jurisdiction is supervisory in nature. It is not meant for the purpose of micro-managing the activities of administrative decision-makers. It should hardly ever be exercised to review decisions that go only to procedure rather than the end result: see Wong Ho Ching v The Appeal Tribunal (Buildings Ordinance) [2020] HKCFI 2783 at §58, citing Financial Secretary v Wong (2003) 6 HKCFAR 476.

76.  Of course, as submitted by Mr Yim, even inaction, failure and/or refusal to act may constitute a decision which is amenable to judicial review. Even if there was no positive decision to exclude the HPR Tunnel Project from the 2021 Funding Application, this does not detract from the fact that no funding was applied for in respect of the HPR Tunnel Project. That inaction is perhaps capable of being the subject of judicial review.

77.  However, if there has been no basis to believe that the Government would apply for funding for the HPR Tunnel Proposal in the 2021 Funding Application (or as a separate item applied for around the same time), it would be hard to argue that the Government, by not doing so, has made a decision of a decisive nature or of substantive consequence. It is not as if there was a deadline (say by the time of the 2021 Funding Application) by which the funding for the HPR Tunnel Proposal must be applied for or it could never be applied for again. The inaction was not one of a substantial consequence nor of a decisive nature.

78.  Perhaps this is why Mr Yim, in re-casting the Decision, kept the tail of “as part of the WENTX Project”. After the Government has filed their evidence, it became clear that the HPR Tunnel Project was not within the scope of the WENTX Project (or the NWR DBR Upgrading Project, though that is now insignificant for the Decision as re-cast). But Mr Yim said the Government’s understanding was rather technical. Each project may have its scope as defined in Government’s documents or in the LegCo’s system of approving public finance for infrastructure projects, but from a layman perspective, the HPR Tunnel Proposal (and indeed other road improvement works around the WENT including the NWR DBR Upgrading Project and the NWR South Project) are inextricably linked to the WENTX Project. The HPR Tunnel Proposal, if implemented, was expected to become an integral part of the WENTX even though it may not fall within the same head of public expenditure when it comes to obtain funding approval.

79.  It seems that Mr Hew disputed that the purpose of the HPR Tunnel is related to the WENTX Project even in the layman’s sense. He took me to the Brief for the 2015 Feasibility Study, and by reference to Clause 2.8 emphasized that the HPR Tunnel Proposal was for the more general purpose of “strategic district planning of Tuen Mun and Yuen Long” rather than for the WENTX Project.

80.  I do not accept that the HPR Tunnel Proposal (or the NWR DBR Upgrading Proposal) are unrelated to the WENTX in the layman’s sense. I have cited part of the PWSC Paper, and some correspondence between the Government and the TMDC and the LKT Village above, and it is undeniable that the main purpose of the HPR Tunnel Project was as a suggestion to address the LKT Village’s concern about waste disposing vehicles travelling through their village accompanying the WENTX Project.

81.  It would probably be disingenuous to suggest that the HPR Tunnel Proposal is wholly unrelated to the WENTX Project. Even the PWSC Paper clearly recognizes that the tunnel proposal was supposed to address the concern of heavy vehicles travelling through Lung Kwu Tan Village. If the WENTX Project and the HPR Tunnel Proposal are unrelated, it would not explain why the HRP Tunnel Proposal was even mentioned in the PWSC Paper.

82.  Having said that, I cannot see how this could improve the Applicant’s case. The fact that the HPR Tunnel Proposal is related to or was developed to address the LKT Village’s concerns about the WENTX Project does not mean that Government had to apply for funding for both projects/proposals at the same time or that the failure to apply funding for one of them would be a decision with substantial consequence. This is related to the next section.

D.3  Has the HPR Tunnel Proposal been abandoned?

83.  The Applicant’s position is that the HPR Tunnel has been abandoned.

84.  This, if true, might constitute a decision of a decisive nature in itself, such that it is susceptible to judicial review. But it can be appreciated from the above that the Applicant has never made it quite clear if he would identify the abandonment of the HPR Tunnel Proposal itself as the subject of the intended challenge.

85.  Rather, it appears that the Applicant’s case as it now stands is that the Government’s failure to apply for funding for the HPR Tunnel Proposal as part of the WENTX Project (that being the “Decision”) has the effect of effectively abandoning the project.

86.  Without the effect of abandonment, the inaction to apply for funding of a proposal (which is still at a rather preliminary stage) in March 2021 or by now could hardly be considered decisive. As long as the project is still on-going, it could be brought forward and funding could be applied for in the future. On the other hand, if the Decision has the effect of abandoning the HPR Tunnel Proposal, that would render the Decision decisive enough for it to be amenable.

87.  Mr Hew said the HPR Tunnel Project has not been abandoned. The Government’s view, based on the results of the 2015 Feasibility Study, that the cost-effectiveness of the HPR Tunnel could hardly be established, is only a preliminary one. It does not lead to a conclusive abandonment of the project. Indeed, the Government has expressly indicated in public documents including the PWSC Paper dated 24 March 2021 that the proposal will be re-examined in the P&E Study in the context of another infrastructure project in the area, i.e. the LKT Reclamation Project. At §19(h) of the PWSC Paper already quoted above, the Government said that:

construction of new roads within the reclaimed area to serve as alternatives to Lung Kwu Tan Road for use by heavy vehicles. This will help address the residents’ concerns on environmental issues arising out of heavy vehicles travelling through Lung Kwu Tan Village

88.  Mr Hew emphasised that the P&E Study and the LKT Reclamation Project are real. He drew the Court’s attention to the fact that the CEDD has already commissioned the “Technical Study on Reclamation at Lung Kwu Tan – Feasibility Study” and a final report was completed in 2018 already.

89.  Mr Yim, in reply, argued the PWSC Paper only made a general reference to “new road as an alternative to Lung Kwu Tan Road” and that new road apparently will be in the reclaimed area rather than from Hong Po Road. Mr Yew frankly replied that the Government is not suggesting that the new road must be the HPR Tunnel, but as long as the HPR Tunnel Proposal is not excluded as a possibility, it is not yet abandoned.

90.  I do not accept Mr Yim’s contention that the Government has abandoned the HPR Tunnel Proposal. The only basis he relied upon is that by the time of the FC Approval, SEN and DEP have decided not to apply for funding for the HPR Tunnel Proposal. He then said, as such, the proposal must be viewed as having been rejected, at least for now.

91.  With all due respect, there is no logic in this argument. There is no reason why the Government must have applied for funding for the HPR Tunnel Proposal by the time of the 2021 Funding Application for the WENTX Project to prove that the former is still alive. The highest the Applicant could say is that there has been no progress for the HPR Tunnel Proposal, which is perhaps subtly admitted by Mr Yim when he eventually qualified his submission by saying that the HPR Tunnel Proposal is abandoned “at least as of now”. But having no progress is not the same as being abandoned.

92.  Given that there is no factual basis to support the Applicant’s contention that the Government has abandoned the HPR Tunnel Project, I have no reason to reject Mr Chan’s evidence that the Government will re-examine the HPR Tunnel Proposal again as part of P&E Study in the context of the LKT Reclamation Project. I accept that the Government has not abandoned the project and any view from the Government about the project as it now stands must be preliminary in nature.

93.  There is no reason why the funding application for the HPR Tunnel Proposal is necessarily to be bundled with funding application for the WENTX Project. The action in applying for funding for one item but not the other does not mean that the other item has been abandoned.

94.  Having said that, I could see why that the Applicant might have felt aggrieved. Some people may think that the chances of having the HPR Tunnel Proposal implemented have become slimmer from a realistic perspective. It may be that the Government’s possible support for the HPR Tunnel Project has decreased over the years, as evident in the Liaison Group meeting held on 19 August 2016, and then the 31 October 2018 letter, and then 5 March 2019 TDMC meeting. Some may also think that the description of the HPR Tunnel Project has gradually changed from a tunnel connecting Hong Po Road to the WENT to a “new road within the reclaimed area”.

95.  Be that as it may, it is not the courts’ role in judicial review to micro-manage administrative actions by mandating the perspective or the context within which an infrastructure proposal must be explored. I do not think the Applicant can gain any mileage by qualifying the Government’s inaction to apply for funding for the HPR Tunnel Proposal by tagging “as part of the WENTX Project” at the end.

D.4  Is the Decision superseded?

96.  Mr Hew also made his submissions in this regard with the Decision as originally cast in the Form 86 in mind.

97.  Mr Yim said the Decision is an executive rather than a legislative act. The FC has decided nothing about the HPR Tunnel Proposal because that proposal has never been put forward for the FC’s consideration by the Government. Without the Government’s recommendation for funding for the HPR Tunnel to be approved, the FC did not have any right to speak or vote on the Government’s Decision not to apply for such funding. The Applicant relied on R (on the application of Miller) v Primer Minister [2020] AC 373 at §§63-69. The Government’s recommendation to the PWSC is an executive act, which, unlike the situation in Chan Kai Wah, was not subsumed into the FC Approval, since the FC was never invited to consider the HPR Tunnel Proposal. In other words, what was challenged is the Decision not to apply for funding for the HPR Tunnel Proposal, not the FC Approval.

98.  Mr Hew said it is incorrect to say the Applicant is not challenging the FC Approval. Given that the Applicant seeks an interlocutory order to restrain the Government from applying to the Treasury Bureau for the release of the HK$44 billion approved under the FC Approval, the Applicant’s argument (at least in the Form 86) must have been that the funding application for the HPR Tunnel could and should have been included in the Government’s 2021 Funding Application (and thus might have been included in the FC Approval). Mr Hew also pointed to that the fact that Mr Yim submitted in his written submissions that had the HPR Tunnel Proposal been properly considered, it would have been placed under “165 DR” or any other subhead. Mr Hew said this suggests that the Applicant in substance is seeking a variation of the project scope of the WENTX Project so as to include the HPR Tunnel Proposal within it.

99.  I agree that the Applicant could not seek that interim relief without also challenging the FC Approval. But Mr Yim has confirmed in his written reply that if the HPR Tunnel Proposal, upon reconsideration, will be placed under a new subhead, the Applicant will no longer pursue the interim order.

100.  The Applicant seems to have mistaken “165DR” as a head of expenditure in the Government’s budget (when it is, as I understand it, a project code designating the WENTX Project). It has become clear that the Applicant would not insist for funding being placed under a head or subhead of expenditure. The Decision he now seeks to challenge is the Government’s failure to apply for funding for the HPR Tunnel Proposal as part of the WENTX Project. The Decision, framed as such, is not the 2021 Funding application and thus has not been subsumed into the FC Approval and is not a legislative act.

E.  Delay

101.  The Applicant’s original case is that the Decision was made around March 20121 but only crystalized upon the FC Approval on 10 September 2021. The Form 86 was filed on 17 September 2021. The crystallization argument is devised to get around the three-month period within which an application for leave to apply for judicial review must be taken out.

102.  The crystallization argument will only work if the Decision the subject of challenge is the FC Approval or at least the 2021 Funding Application. That would not sit well with Mr Yim’s eagerness to distance the Decision from the FC Approval in response to the argument that the Decision was superseded by the FC Approval which is a legislative act.

103.  Further, he has now made clear that what the Applicant seeks to challenge is not the 2021 Funding Application but the inaction to apply for funding for the HPR Tunnel. In the premises, it is difficult to understand why an inaction in respect of the HPR Tunnel Proposal should have time starting at the time when the Government applied for funding or when the FC approved such funding for the WENTX Project.

104.  Arguably, the inaction started as soon as the genesis of the idea for the HPR Tunnel Proposal in 2014, though on one view the inaction continues. Assuming, on a basis which remains unclear, the Applicant expected that funding for the HPR Tunnel Proposal would be applied for at the time of the 2021 Funding Application, then the three-month period would start to run in March 2021. Thus the application was about three months late, which is not insubstantial.

105.  The Applicant has no good reasons to explain the delay. Mr Yim said the Government could have changed its mind any time before the FC Approval. For some administrative decisions, the decision maker may change his or her mind at any time. In fact, since the funding application for the HPR Tunnel Proposal is not necessarily bundled with the 2021 Funding Application, the Government may apply for funding any time. That does not entitle the applicant to take a wait and see approach.

106.  Further, there is also no merit in the application – see below.

107.  In the Form 86, the Applicant sought the interim leave of an interlocutory order to restrain the SEN and the DEP to apply to the Treasury for release of funds approved under the FC Approval. This would amount to a substantial prejudice to the Government. The interim relief application was only belatedly dropped as indicated in Counsel’s reply submissions filed shortly before the hearing.

108.  I would not grant a time extension.

F.  Are there merits in the leave application?

109.  Given my previous conclusion on the amenability of the Decision and delay, there is strictly no need for the Court to discuss the substantive arguments raised by the Applicant (though they are of course relevant to and taken into account in the consideration of delay). I do not propose to deal with them in great detail.

110.  Mr Yim relies on three grounds: (1) the Government in reaching the Decision has failed to give effect to or failed to consider the Community Interest Representation and the Coordination Representation; (2) in the decision making process, the Government has abdicated its decision-making function by basing the Decision solely on the findings of the 2015 Feasibility Study; and (3) the Decision was Wednesbury unreasonable as the Government has attached overwhelming weight to cost-effectiveness of the HPR Tunnel Proposal and failed to consider this factor logically.

111.  In reply, Mr Hew submitted that (1) the Government did not make the Community Interest Representation or Coordination Interest Representation as framed by the Applicant. Indeed, the Government has already delivered that to which they had actually committed themselves; (2) the Government did not abdicate its function because it did not solely rely on the 2015 Feasibility Study; and (3) the Government was not irrational in making the Decision.

112.  It bears emphasis that I have decided that the HPR Tunnel Proposal is still on-going and that the view formed by the Government at this stage is necessarily preliminary. The decision-making progress is not yet completed. It is obviously premature to consider if the Government has properly exercised its decision-making function yet or if there is any public law error. But I shall proceed to deal the challenges briefly below.

G.  Ground 1: Legitimate Expectation – Community Interest Representation

113.  Mr Yim identified the Community Interest Representation as follows:

in deciding whether the HPR Tunnel Proposal is to be adopted and implemented, the Government

(a)  would not place sole reliance on the factor of traffic flow and would, instead, attach special weight to the interest of the community of Tuen Mun, in particular Lung Kwu Tan, as a whole, and

(b)  would consider the traffic flow condition in Tuen Mun holistically, including the effect of all large-scale neighbouring facilities which have been planned for when the relevant traffic impact assessment studies are to be submitted for consideration.

114.  He said that the Community Interest Representation could be gathered from three sets of statements made by different Government officials during a PWSC meeting and two TMDC meetings.

115.  First of all, I find the representation framed rather nebulous and general in its meaning. The meaning of “the interest of the community of Tuen Mun, in particular Lung Kwu Tan, as a whole” is inherently broad and general. I would think that there are not many factors which would not touch upon “the interest of the community of Tuen Mun and Lung Kwu Tan”. The same could be said about “traffic flow condition in Tuen Mun holistically”. Even if such representation was made, the Applicant would face a high threshold to suggest that such broad factors have been not considered. Unless what the Applicant really suggests is that the views or opinions of local residents of Lung Kwu Tang would or must be preferred, I do not see how the reference to community interest or a holistic assessment of traffic flow condition in Tuen Mun could offer much assistance to the Applicant.

116.  In any event, I do not think that the Government have made the Community Interest representation as framed by the Applicant. This is easily discernible by looking at the underlying documents which Mr Yim said to be the source of the Community Interest Representation.

117.  The first set of statements is to be found in the PWSC’s meeting minutes dated 2 July 2013. §10 of the minute recorded what the SEN said at the meeting (Applicant’s emphasis):

10. As regards the WENT Landfill Extension project, SEN pointed out that the Government and the Tuen Mun District Council (TMDC) had set up the Tuen Mun Development Liaison Working Group in 2009. The Working Group had achieved some results in its proposed projects, such as establishment of an air monitoring station in Tuen Mun Town Centre, greening and optimizing the Tuen Mun vicinity, as well as revitalizing the Sam Shing Seafood Market in Castle Peak Bay. Having listened to the views of the Working Group, the Administration recognized the need to study the upgrading or widening of Nim Wan Road. In examining this project, the Administration would not only take traffic flow as a major consideration, but would also attach weight to the advantages of opening up a separate access road to the landfill and the neighbouring facilities as perceived by the local residents. It would enhance the link between Tuen Mun and Yuen Long and relieve the bearing capacity of the local residents. The Administration would conduct a separate study on it. The Working Group would also continue to follow up on other discussion items. As this involved the jurisdiction of various departments, CS had promised that she, SEN and the other relevant major officials would also increase visits to the district to exchange views with the local residents. SEN hoped that the various local improvement measures in Tuen Mun could be taken forward under the coordination of CS in the next two years when the consultancy study for the WENT landfill extension was being carried out.

118.  This statement was made before the HPR Tunnel Proposal was raised in 2014. There was no mention of the HPR Tunnel Proposal. The part of the statement highlighted by the Applicant was made in the context of upgrading or widening of Nim Wan Road.

119.  The second set of statements is to be found in the TMDC meeting minutes dated 11 July 2013. The original is in Chinese. §23 recorded what the Chief Executive said at the meeting (Applicant’s emphasis):

23. 特區政府為減輕地區的承擔，會積極研究提升連接新界西堆填區以及其附近設施(例如曾咀骨灰龕設施)的道路，其中包括由稔灣路接通元朗流浮山。過去由於此計劃難於以交通流量數據作支持，故過往一直沒甚進展。但是，在過去數星期，政府內部包括運輸署及路政署署長級的同事就此事進行了討論，並有了一個突破性的思維，認為在研究稔灣路擴建或提升工程時，不能單只以運輸流量作考慮因素，而是必須顧及整體社區的利益。有見及此，特區政府會盡快立項就稔灣路的擴建或提升工程進行研究，以加強屯門與元朗流浮山的連接。時間表方面，特區政府計劃在今年年底前開始聘請顧問的程序，以爭取在大概兩年內獲得研究結果。此外，若然有關新界西堆填區的勘測和研究工作的撥款申請獲得立法會通過，工程項目撥款申請最快亦只能於2015年提交予區議會和立法會考慮。屆時，有關稔灣路的研究亦應有結果，若大家不滿意有關結果，相信大家否決工程申請的機會是很大的。故此，此安排足以表明特區政府有計劃兌現其提升稔灣路的承諾。

23. In order to reduce the burden on the district, the SAR Government will actively study and upgrade the road connecting the New Territories West Landfill and its nearby facilities (such as the Tsang Tsui Columbarium), including the connection between Nim Wan Road and Lau Fau Shan, Yuen Long. In the past, as it was difficult to support this plan on the basis of traffic flow data, there has been little progress in the past. However, in the past few weeks, colleagues of Directorate Grade from the Government including those from the Transport Department and the Highways Department have discussed the matter, and they have had a breakthrough thinking. They believe that when studying the expansion or upgrading of Nim Wan Road, one should not only use traffic flow as a consideration but should take into consideration the interests of the community as a whole. In view of this, the SAR Government will kickstart a project as soon as possible to study the expansion or upgrading of Nim Wan Road to strengthen the connection between Tuen Mun and Lau Fau Shan, Yuen Long. In terms of timetable, the SAR Government plans to start the process of hiring consultants before the end of this year, so as to obtain research results within about two years. In addition, even if the funding application for survey and research work of the West New Territories Landfill is approved by the Legislative Council, funding applications for engineering projects can only be submitted to the District Council and the Legislative Council for consideration in 2015. At that time, the study on Nim Wan Road should also have results. If everyone is not satisfied with the results, I believe that there is a great chance that the project would be rejected. Therefore, this arrangement is sufficient to show that the SAR Government has a plan to fulfill its promise to upgrade Nim Wan Road.

120.  This statement was also made before the HPR Tunnel Proposal was raised in 2014. There was no reference to the tunnel in the statement. The part of the text highlighted by the Applicant was, again, mentioned in the context of the upgrading of Nim Wan Road.

121.  The third set of statements is to be found in the TMDC meeting minutes dated 15 November 2013. The original is in Chinese. §28 recorded what the Assistant DEP said (Applicant’s emphasis):

28. 陳博士繼續表示，政務司司長、環境局局長及環境局常任秘書長於本年7月11日出席屯門區議會特別會議時曾表示當局將跟進有關擴闊稔灣路一事。她指出，若只參考交通流量數據，將無須就擴闊稔灣路元朗至流浮山段作出考慮，但為顧及整體社區利益，環保署在路政署的技術協助下，準備於今年底前展開顧問招標之程序…

28. [The Assistant Director of the Environmental Protection Department, Dr. Chan, Ellen Ying Lung] continued to state that the Chief Secretary for Administration, the Secretary for the Environment and the Permanent Secretary for the Environment have stated that the authorities would follow up on the widening of Nim Wan Road when they attended the special meeting of the Tuen Mun District Council on 11 July 1 this year. She pointed out that if we only refer to the traffic flow data, there is no need to consider the widening of Nim Wan Road from Yuen Long to Lau Fau Shan. However, in order to take into account the interests of the community as a whole, the Environmental Protection Department, with the technical assistance of the Highways Department, is preparing to start by the end of this year the procedures to invite tenders for consultancies...

122.  Similar to the other two statements, this statement (and the part highlighted by the Applicant) was also made before 2014 and in the context of the widening of Nim Wan Road.

123.  These statements pre-date the genesis of the HPR Tunnel Proposal and were clearly made in the context of improving Nim Wan Road. Not only are they inherently general, I do not see how they could be said to give rise to any promise or commitments by the Governments in respect of how the HPR Tunnel Proposal would be considered. Nor could be read into those statements that a “special weight” would be given to such “community interest” over other factors.

124.  Mr Yim said that it was clear that the HPR Tunnel Proposal was put in place to specifically address the need of the Lung Kwu Tan community and was expected to share the same purpose as the NRW DBR Upgrading Project. Thus, the statements made by Government about the widening/upgrading of Nim Wan Road should also apply to the HPR Tunnel Proposal for the benefit of the Lung Kwu Tan community.

125.  I do not accept Mr Yim’s argument. It is well-settled that to establish legitimate expectation, the representation must be clear and unambiguous. When the representation is reasonably susceptible of competing construction, the correct approach is to accept the interpretation applied by the public authority subject to the Wednesbury unreasonableness test. The representation has to be construed objectively, and is not based on the knowledge or state of mind of the individual concerned. The applicant must show that a promise or representation has induced a legitimate expectation and that such expectation is reasonable: see Ng Siu Tung v Director of Immigration (2002) HKCFAR 1, at §§ 101-104, 335, 351, 355, 360.

126.  The statements relied upon by the Applicant are far from containing a clear and unambiguous promise of the meaning as suggested by Mr Yim. It would not be reasonable for the Applicant to expect that the Government would attach special weight to the interest of the LKT Village when they consider the HPR Tunnel Proposal.

127.  Ground 1 in respect of the Community Interest Representation is not reasonably arguable.

H.  The Coordination Representation

128.  In the written submissions, Mr Yim defined the Coordination Representation as follows, which is narrower than the scope as pleaded in the Form 86 (it being also unhelpful to the Applicant that the terms of the alleged representation have varied):

in deciding whether the HPR Tunnel Proposal ought to be adopted and implemented, SEN and DEP would

(a)  coordinate with other policy bureaux whose portfolios involve the construction of large-scale facilities in Tuen Mun (including the Food and Health Bureau) (such as by way of submitting the progress and/or result of its independent feasibility study to an ad hoc working group comprising the said policy bureaux);

(b)  confer with the Transport and Housing Bureau such that it would ultimately decide on the feasibility of the HPR Tunnel Proposal in light of its connectivity with the trunk road in Tuen Mun.

129.  It is now said that the Coordination Representation could be gathered from five sets of statements made by various officials during different occasions from 2013 to 2015 – though this suggestion itself seems to me to be infertile ground for such a representation.

130.  The first set is to be found at §10 in the PWSC meeting minutes dated 2 July 2013, which is quoted above in §116. For convenience, I quote again the part relied upon by the Applicant for the purpose of the Coordination Representation:

SEN hoped that the various local improvement measures in Tuen Mun could be taken forward under the coordination of CS in the next two years when the consultancy study for the WENT landfill extension was being carried out.

131.  It is hard to see how the general reference of “under the coordination of CS” could give rise to the meaning as defined as the Coordination Representation. As noted above, this statement was made in the context of the widening Nim Wan Road and before the HPR Tunnel Proposal was first raised.

132.  The second set is to be found in a letter dated 18 February 2014, sent by SEN to Dr Lau as the Chairman of TMDC, and copied to the representatives of LKT Village. The original is in Chinese:

會上不少議員關注到屯門的交通配套問題。就提升稔灣路及深灣路，我們已與相關政府部門如負責交通運輸的部門成立專責小組，並分別諮詢了屯門區議會轄下的環委會、廈村鄉鄉事委員會、以及向元朗區議會作出匯報

The transport facilities in Tuen Mun were concerned by many members in the conference. Regarding the enhancement of Nim Wan Road and Sham Wan Road [i.e. Deep Bay Raod], we have set up a task force with relevant government departments such as those in charge of transportation, and have consulted respectively the Environmental Committee under the Tuen Mun District Council, the Ha Tsuen Rural Committee, and reported to the Yuen Long District Council.

133.  The statement was made with reference to improving Nim Wan Road and Deep Bay Road with no mention of the HPR Tunnel Proposal. Insofar as coordination is concerned, the language was couched in what the Government had already done rather than what they would do.

134.  The third set is to be found in a letter dated 11 July 2014, issued by SEN to Dr Lau as the Chairman of TMDC, and copied to representatives of LKT Village. The original is in Chinese:

8. 提升龍鼓灘路及稔灣路（來函第（10）項）

我們理解地區人士非常關注屯門及元朗區之道路發展。就提升稔灣路（元朗段）及深灣路，我們已與相關政府部門成立專責小組，並分別諮詢了屯門區議會的環境、衛生及地區發展委員會、廈村鄉鄉事委員會、以及向元朗區議會作出匯報。

8. Upgrading of Lung Kwu Tan Road and Nim Wan Road (Item (10) of the letter)

We understand that the locals are concerned about the road development in Tuen Mun and Yuen Long districts. Regarding the enhancement of Nim Wan Road (Yuen Long Section) and Sham Wan Road, we have set up a task force with relevant government departments, and have consulted the Environment, Health and District Development Committee of the Tuen Mun District Council, the Ha Tsuen Rural Committee, and reported to the Yuen Long District Council.

135.  References were made to Lung Kwu Tan Road, Nim Wan Road and Deep Bay Road. The HPR Tunnel Proposal was not mentioned. Insofar as coordination is concerned, the Government reported what they had already done rather than what they would do.

136.  The fourth set is to be found in the meeting minute of TMDC dated 4 November 2014. The original is in Chinese (Applicant’s emphasis):

98. 食衞局陳教授再次多謝上述各議員的意見，並表示局方會樂意配合主席提出的安排。此外，顧問公司是次提交的交通影響評估報告主要就擬建的骨灰龕設施可能對鄰近地區所造成的影響進行估算，當中亦有包括一些其他在提交交通影響評估報告時已知的發展計劃。但是，一如她早前所述，如政府將來計劃在屯門西部地區進行大規模的規劃及發展計劃，必先會進行研究可能會在該帶產生的額外交通需求，會因應需要考慮作出相應的交通配套安排。如有需要，相信各相關政府部門亦會作出配合。

98. Professor Sophia Chan of the Food and Health Bureau once again thanked the above-mentioned members for their comments, and expressed that the Bureau would be willing to cope with the arrangements proposed by the Chairman. In addition, the Traffic Impact Assessment Report submitted by the consultants on this occasion mainly focuses on the estimation of possible impacts on the proposed columbarium facility to the neighbouring areas and it also included some other development plans known at the time of submission of the Traffic Impact Assessment Report. However, as she mentioned earlier, if the government plans to conduct large-scale developments in the western area of Tuen Mun in the future, the additional traffic demand that may be generated in the belt must be studied beforehand, and corresponding traffic supporting arrangements will be considered on demand. She believed that the relevant government departments will also cooperate in making corresponding traffic supporting arrangements on a need basis.

137.  The language of “believed” and “on a need basis” and the very vague reference to cooperation in the highlighted text are not easily read as any sort of clear or unambiguous promise. There was also no reference to the HPR Tunnel Proposal.

138.  The fifth set is to be found in the meeting minutes of TMDC dated 3 March 2015. The original is in Chinese (Applicant’s emphasis):

76.  邱局長多謝上述議員的意見，並指出他們已充分表達居民就有關屯門西繞道工程項目的心聲。此外，他亦就議員的提問及意見作出以下的綜合回應：

…

(e)  食衞局及環境局已分別按其發展項目（分別指骨灰龕和堆填區項目）為屯門區的相關交通事宜進行研究，並會將資料轉交交通運輸部門參考，以便再按需要考慮各個連接屯門主幹線的可行性（例如：經康寶路及稔灣的隧道出入口）。此外，如區議會支持是次文件提及的屯門西繞道基本走線，局方會爭取資源，以便在進行詳細設計時，研究各個相關細節方案（例如：擴闊連接青田路的屯門公路出入口、增加行車線及預留向北伸延的接駁位等）

76.  Secretary Yau [Shing Mu] thanked the above-mentioned members for their comments, and pointed out that they had fully expressed the residents’ voices regarding the Tuen Mun Western Bypass Project. In addition, he also made the following comprehensive responses to members’ questions and comments:

…

(e)  The Food and Health Bureau and the Environment Bureau have respectively conducted studies on the related traffic issues in Tuen Mun District according to their development projects (referring to the columbarium and landfill projects respectively), and will pass the materials to the transport department for their reference, so that they can further look into feasibility of each connection to trunk road in Tuen Mun (e.g. the tunnel entrances and exits via Hong Bao Road and Nim Wan). In addition, if the District Council supports the Tuen Mun Western Bypass mentioned, the Transport and Housing Bureau will seek resources to study various relevant proposals in detail during the detailed design (for example: widening the Tsing Tin Road connecting to the entrances and exits of Tuen Mun Highway, increase traffic lanes and reserve connection spaces extending northward, etc.).”

139.  Apparently, the Coordination Representation is mostly extracted from this statement. But the statement is made in the context of discussing the Tuen Mun Bypass – a tunnel to connect Tuen Mun with the Hong Kong Airport. The sentence “so that they can further look into feasibility of each connection to trunk road in Tuen Mun” refers to how to connect the Tuen Mun Bypass to the main trunk road of Tuen Mun. The part in the bracket “例如:經康寶路及稔灣的隧道出入口” was raised as a possible option of how such connection could be made. The Chinese text could be translated as a route connecting the Bypass at its tunnel exit at Nim Wan to Hong Po Road.

140.  I doubt very much whether this statement could be read as a clear and unambiguous statement referring to how the Government would proceed with the HPR Tunnel Road at all, let alone to the meaning or effect as framed in the Coordination Representation.

141.  Ground 1 in respect of the Coordination Representation is not reasonably arguable.

I.  Ground 2 and Ground 3

142.  These two grounds can be disposed of quickly.

143.  Ground 2 is that the Government had abdicated its decision-making function in that it reached the Decision solely based on the 2015 Feasibility without exercising its own independent judgment.

144.  The argument is that the Government rubber-stamped the finding of the 2015 Feasibility Study. I agree with Mr Hew that this argument is pure speculation without evidence in support. As quoted above, the Government has explained to the stakeholders from the LKT Village and in Tuen Man on different occasions from 2016 to 2018 that the Government would further explore the HPR Tunnel Proposal in the future in the context of other infrastructure projects.

145.  Ground 3 is that the Decision was irrational in that (a) the Government attached too much weight to cost-effectiveness and that (b) the Government has failed to consider cost-effectiveness rationally.

146.  Submission (a) is not reasonably arguable. It is trite that the weight of a particular factor is for the decision-maker to decide.

147.  Submission (b) is based on the assumption that the PWSC paper has contained all the reasons of the Government to come to the view that the proposed tunnel’s cost-effectiveness could hardly be established. The Applicant referred to the sentence in the PWSC Paper that “taking into account the current number of residents in the Lung Kwu Tan area, the construction of the tunnel is not cost-effective” and said that the Government had ignored other sources of traffic demand. But the PWSC Paper was not produced to evaluate the HPR Tunnel Proposal or its cost-effectiveness. The HPR Tunnel Proposal was only mentioned to inform the PWSC about concerns raised by the public in the public consultation section. Cost-effectiveness and traffic flow are analysed in much detail in the Alternative Routes Report and the Traffic Impact Assessment. There is no reason to suggest that the Government has not considered them.

148.  Ground 3 is not reasonably arguable.

J.  Result

149.  In conclusion, I have come to the view that (a) the Decision is not amenable to judicial review; (b) there was delay in taking out the leave application and no extension of time should be granted; (c) none of the grounds put forward by the Applicant is reasonably arguable. The leave application is dismissed.

150.  I see no reason why costs should not follow the event, so order the Putative Respondents’ costs to be paid by the Applicant to be taxed if not agreed.