HCA2137/2004
PAGE - 19 -
HCAL 145/2014IN THE HIGH COURT OF THEHONG KONG SPECIAL
ADMINISTRATIVE REGIONCOURT OF FIRST INSTANCECONSTITUTIONAL AND
ADMINISTRATIVE LAW LIST
NO 145 OF 2014------------------------BETWEEN
CHAN KAM CHUEN
1st Applicant
LIU KAM CHUN
2nd Applicant
CHAN WAI NAM,
3rd Applicant
MANAGER OF CHAN TING YU TSO,
REGISTERED OWNER OF DD 76, LOTS 6,
1696, 1720 AND 1722
CHAN KWAI FUK
4th Applicant
LAW CHUN PING,
5th Applicant
MANAGER OF LO MAN PAU TSO,
REGISTERED OWNER OF DD 76, LOT 1232
LAW PAK FUN
6th Applicant
TANG KOON YEUNG
7th Applicant
YUEN CHI FAN
8th Applicantand
DIRECTOR OF LANDS
1st Putative Respondent
SECRETARY FOR TRANSPORT2nd Putative Respondent
AND HOUSING
SECRETARY FOR DEVELOPMENT3rd Putative Respondent
------------------------Before: Hon Au J in Court Date of
Hearing: 5 March 2015Date of Decision: 5 March 2015Date of Reasons
for Decision and Decision on Costs: 13 March
2015________________________________R E A S O N S F O R D E C I S I
O N
AND
D E C I S I O N O N C O S T
S________________________________A.Introduction
1. The applicants apply for leave to apply to judicially review
the decision (the Decision) effectively of the Director of Lands
(the Director) to create certain easements and permanent rights
(the EPRs) on certain parcels of land in DD 76 and DD 85 in New
Territories North District for the purpose of Public Work Project
No 5013GB (namely, the project of Liantang/Heung Yuen Wai Boundary
Control Point and Associated Works) (the Project) pursuant to the
Roads (Works, Use and Compensation) Ordinance (Cap 370) (the
Ordinance) as described in Government Notice GN 4235 (the EPRs
Notice) dated 22 June 2012.2. The applicants are either the
registered owners or Manager of certain Tsos as registered owners
of various lots of lands (the Lands) affected by the Project and
where the EPRs are created.3. By way of the EPRs Notice issued
under s 16 of the Ordinance, the Director informed, among others,
the applicants that the EPRs are created over the Lands.4. The EPRs
are created under s 15 of the Ordinance.5. A total of 9 grounds
were originally relied on in the Form 86 (running up to 88 pages)
filed on 29 October 2014. In relation to these original 9 grounds,
the court echoes the putative respondents observations that they
are rather confused and not easy to understand.6. However, on the
date before the leave application, the applicants (now also
represented by Mr Pun who was only instructed on 27February, a few
days before the hearing, and is not responsible for drafting the
original Form 86) filed a revised skeleton and also asked to amend
the Form 86 effectively to limit the proposed grounds of judicial
review to the following two principal bases:(1)The EPRs created are
in effect not easements in nature but deprivation of the applicants
use of the lands under Art 105 of the Basic Law. This in substance
amounts to resumption of the substrata of the Lands under s 13 of
the Ordinance. The Directors purported reliance on s 15 of the
Ordinance to create the EPRs is thus unlawful. This is particularly
so as the standard of compensation assessment under s 15 (for
easements) is different from that to resumption under s 10 of the
Lands resumption Ordinance (Cap 79A) (the easement arguments
ground).
(2)The Decision is tainted with procedural irregularity or
unfairness as the Director has failed to properly affix the EPRs
Notice and/or serve the EPRs Notice on the applicants pursuant to s
16 of the Ordinance (the affixation and/or service ground).7. The
putative respondents (represented by Mr Paul Shieh SC together with
Ms Teresa Wu) at the invitation of the court appeared at the
hearing and opposed the leave application.8. At the end of the
hearing, I refused to grant leave with reasons to follow. I also
said that I would decide on costs (where arguments had also already
been heard) at the same time I hand down my reasons for decision.9.
These are what I do now.B.Brief background
10. The relevant brief background can be summarized as
follows:(1)For the purpose of the road works for the Project, the
Secretary for Transport and Housing had prepared the plan nos
255228/GZP/1000 to 255228/GZP/1017 (the Plans) and the scheme (the
Scheme). The general nature of the proposed works included (i)
construction of an approximate 4.8 km dual 2-lane road tunnel
between Princess Hill and Lung Shan (the Lung Shan Tunnel) with
associated cross passages. Notice in relation to the deposit of the
Plans and the Scheme was firstly gazetted under GN 7025 on
9November 2010.(2)GN 7025 identified the EPRs to be created on
certain parcels of land in DD 76 and DD 85, including the Lands,
for the purpose of or incidental to the works of the Project.(3)GN
7025 stated that members of the public could inspect the Plans and
the Scheme free of charge, and make further enquiries with the
Civil Engineering and Development Department. The public could also
make objections not later than 60 days after the date of
publication.(4)GN 7025 was published in 2 issues of Ming Pao and
The Standard on 12 November 2010 and 19 November 2010.(5)On 12
November 2010, the Civil Engineering and Development Department
affixed copies of the notice under GN 7025 within the concerned
works areas.(6)GN 7025 published on 12 November 2010 and 19
November 2010, together with the Plans and the Scheme, were
deposited at the North and Tai Po District Boards.(7)The Civil
Engineering and Development Department had issued letters (with
copies of GN 7025 published on 12November 2010 and 19 November
2010, the Plans and the Scheme) to the Rural Committees, including
the Fanling District Rural Committee, requesting for their
assistance to distribute GN 7025 to the village representatives
and/or to inform them for collection.(8)Amendments had been made to
the Scheme to accommodate design development and in view of the
objections. The Amended Plans and the Amended Scheme were gazetted
under GN 5861 on 9 September 2011 and 16 September 2011.(9)GN 5861
provided for public inspection of the Amended Plans and the Amended
Scheme, for enquiries be made to the Civil Engineering and
Development Department and for objections be made to the Secretary
for Transport and Housing no later than 60 days after the first
publication of the notice.(10)GN 5861 was published in Ming Pao and
The Standard on 9September 2011 and 16 September 2011, and the
notice under GN 5861 was affixed within the concerned work
areas.(11)The applicants have not at any stage challenged the
adequacy of the gazetting, publicity or notification in respect of
all the above matters.(12)On 27 March 2012, the Chief Executive in
Council authorized the works and the use as described in the
Amended Plans and the Amended Scheme under s 11(2) of the
Ordinance, as gazetted under GN2759 dated 20 April 2012 and
published on 27 April 2012 and 4 May 2012 respectively.(13)On 15
June 2012, pursuant to the power delegated by the Chief Executive,
the Deputy Director/Specialist of the Lands Department ordered (the
Easement Order) the creation of the EPRs in, under and over the
lands described in Plan No DNM 2357b Sheets 1 to 3 (the Easement
Plan) for the purpose of or incidental to the works of the Project
with a 3month notice period under s 15. A notice to that effect as
set out in GN 4235 was prepared.(14)On 21 June 2012, the District
Lands Office/North affixed notice on or near the concerned
lots.(15)On 22 June 2012, the Lands Department gazetted the EPRs
Notice. It was published in 1 issue of Sing Tao Daily and 1issue of
The Standard on 22 June 2012.(16)Copies of EPRs Notice and the
Easement Plan had been deposited at the relevant Government
Offices, including District Lands Office/North District
Office/North, the Tai Po District Office and the Central and
Western District Office of the Home Affairs Department, and the
District Lands Office (Tai Po) of the Lands Department for
inspection by public free of charge.(17)On 25 June 2012, the
District Lands Office/North sent two copies of the ERPs Notice and
two sets of Easement Plans to the Land Registry for memorialization
and registration against each and every lot mentioned.(18)On 19
July 2012, the District Lands Office/North sent copies of the EPRs
Notice to the landowners whose lands were subject to the creation
of the EPRs by recorded delivery in accordance with the addresses
provided by the Land Registry. If the addresses provided by the
Land Registry were different from the addresses kept in the A Book,
an extra copy of the letter enclosing the EPRs Notice was also sent
to the addresses of those affected landowners as shown in the
ABook.C.REASONS FOR REFUSING LEAVEC1.Grounds not reasonably
arguable with a realistic prospect of success11. In my view the
proposed grounds of judicial review are not reasonably arguable. I
will explain way.C1.1.The easement arguments ground
12. S 15 of the Ordinance provides as follows:15.Governor may
order creation of easements and other rights
(1)The Governor may by order direct that easements or other
permanent rights in, under or over land and rights of temporary
occupation of land in the works area which easements and rights
were proposed in the scheme mentioned in section 5 shall be created
in favour of the Government for the purposes of or incidental to
the works or the use.
(2)An order under subsection (1) shall specify the period of
notice to be given under section 16(2) which period shall run from
the day on which notice of creation of an easement or right is
affixed to the land under that subsection and shall in no case
expire earlier than 28days from that day.
(3)An order made under subsection (1) may contain such
consequential and incidental provisions as appear to the Governor
to be necessary or expedient for the purposes of the order
including in particular provisions for authorizing persons to enter
upon land or buildings in accordance with subsection (5) for the
purpose of carrying out any operations or installing, maintaining
or removing any structures or apparatus.
(4)Unless the Governor has previously revoked the order made
under subsection (1), upon the expiry of the period specified under
subsection (2) the easement or right shall be created in favour of
the Government and the benefits and obligations thereof and of all
consequential and incidental provisions made under subsection (3)
shall be of full force and effect against all persons having any
estate, right, share or interest in the land without any consent,
grant or conveyance.
(5)No person shall, in the exercise of any power of entry
referred to in subsection (3), enter upon any land which is
occupied without giving at least 28 days notice of his intention so
to do unless the Secretary is of the opinion that an emergency
exists which necessitates immediate entry.
(6)Notice under subsection (5) shall be served on the owner and
the occupier of the land.
(7)The ownership of any thing shall not be altered by reason
only that it is placed in or under or affixed to any land in
exercise of the rights and powers arising from or incidental to an
easement or right created under this section.
(8)The Secretary shall, as soon as practicable after an easement
or other permanent right has been created in favour of the
Government under subsection (4), cause the creation of such
easement to be noted in the register of the land kept in the Land
Registry.13. Insofar as the easement arguments ground is concerned,
the main thrust of Mr Puns contentions are as follows:
(1)The meaning of easements is not defined in s 15 of the
Ordinance. Thus, the common law meaning of easements applies.
(2)Under common law, it is trite that an easement cannot
substantially deprive the servient owner of proprietorship or
possession. This meaning should equally apply to the meaning of
permanent rights under s 15.(3)The EPRs created for the substantial
underneath land strata of the Lands for the purposes of building
road tunnel would be permanently and exclusively occupied by the
Government.(4)This amounts to an exclusion of the applicants from
possession of a substantial portion of their land, ie, the
underground strata. This cannot be regarded as easements or
permanent rights under s 15 of the Ordinance. The purported
exercise of the power under s 15 to create the EPRs is thus
unlawful.(5)If the Government wants to do that, she should seek to
exercise the power under s 13 to resume the underground strata.
14. With respect to Mr Pun, I am not convinced it is reasonably
arguable that the meaning of permanent rights under s 15 should
bear the same meaning of easements as suggested. As submitted by Mr
Shieh, these two terms are expressly used disjunctively and
separately under s 15. If Mr Pun is correct, the term permanent
rights would have added nothing to the term of easements and is
thus superfluous. This cannot be the legislatures intention.15. As
I think fairly accepted by Mr Pun at the hearing, the term
permanent rights means and includes some permanent rights created
over the land (for the purposes of or incidental to the works or
their use) which are short of and less substantial than the rights
that would be created by a resumption (contrasting the power under
s 13 of the Ordinance). By its ordinary meaning, a permanent right
so created must to a degree take away some of the rights over the
use or possession of the affected land. By contrast, a resumption
order would have the effect of vesting the ownership of title of
the land concerned to the Government (see s 13(3)) and depriving
the entire bundles of rights associated with ownership of the piece
of land. In other words, as submitted by Mr Shieh, the permanent
rights intended under the s 15 would and should not amount to
effectively taking away or depriving the ownership (and thus all
the rights pertinent to that ownership such as the right to sell
the land or to use substantially the land as a whole, including the
right relating to the space above and the substrata below the
land). But the mere fact that certain occupational or possessory
rights of some parts of the land have been restricted or deprived
of by reason of the creation of the right does not necessarily make
it tantamount to effectively resumption. This is particularly so as
under the Schedule in Part II of the Ordinance, compensation would
be assessed on the open market value of the claimants interest in
the land that is diminished by reason of the EPRs.
16. In the present case, it is clear that the applicants
ownership and substantial use of the Lands (as whole) is not
effectively deprived of even though some substantial parts of
substrata of some of these Lands have been subject to the EPRs. It
also does not affect the title of the Lands (which include the
rights over and under them). The applicants, notwithstanding the
EPRs, are still free to deal with the Lands together with
substantial portion of the substrata where the EPRs are created as
title owners, subject to any diminished value caused by the loss of
use or possession of those parts of the substrata. As mentioned
above, this is a loss which would be compensated in value. This is
my view must fall within the meaning of the permanent rights but
not arguably a resumption. 17. Insofar as if Mr Pun is saying that
the reference that one should have to see whether there is
effective resumption instead of the creation of a permanent right
is that particular part of the land where the permanent right is
created, without any reference to the entire piece of the land, I
am not convinced with this submission. This is so as, if counsel is
correct, then almost every permanent right so created, insofar as
that particular part of the land is concerned, it is a resumption,
because, permanent means permanent, meaning that to that extent of
the right over that part of the land, the owners corresponding
right over it has been lost permanently. That in my view cannot be
the intention of the legislature. This is underlined by looking at
ss 5 and 15 of the Ordinance, where the use of the word land over
which the major works are to be carried out and where the EPRs are
to be created in, under or over. Read in that context and by
reference to those words in, under or over, the reference to the
word land objectively must be intended to at least also mean and
refer to the entire (which includes its substratum, surface and
above space) concerned land or the entire parts (which similarly
includes its substratum, surface and above space) of the concerned
land.18. As such, I do not accept Mr Puns contentions that, on this
question, one should only focus on the use of the substrata of the
relevant Lots without any reference to the use of the other parts
of the Lots.19. This ground is thus not reasonably arguable. Leave
to apply for judicial review on this ground should be refused.
C1.2The affixation/service ground
20. S 16 of the Ordinance provides as follows:
16.Notices of creation of easements or other rights
(1)Subject to subsection (3), notice of creation of an easement
or right by order made under section 15(1) shall be-
(a)served on every person known to the Secretary as having any
estate, right, share or interest in the land mentioned in the
order;
(b)published-
(i)in one issue of the Gazette in both the Chinese and English
languages;
(ii)in one issue of a Chinese language newspaper;
(iii)in one issue of an English language newspaper; and
(iv)by affixing a copy in the Chinese and English languages in a
prominent position on or near the land mentioned in the order;
and
(c)made available for inspection by the public free of charge at
such offices of the Government as the Secretary may direct, during
the hours when those offices are normally open to the public.
(2)A notice of creation of an easement or right shall-
(a)describe the land and the easement or right and state that an
order creating the easement or right has been made under section
15(1);
(b)state where and at what times a copy of the order and a plan
of the land affected by the easement or right may be inspected in
pursuance of subsection(1)(c);
(c)state the day on which the notice was affixed on or near the
land;
(d)state the period of notice specified by the Governor under
section 15(2);
(e)declare that upon the expiry of that period the easement or
right described in the notice shall by virtue of section 15(4) be
created in favour of the Government for the purposes of or
incidental to the works or the use; and
(f)state that any person having a compensatable interest under
this Ordinance may serve a written claim upon the Secretary.
(3)Where an order has been made under section 15(1) in respect
of land which was, when the order was made, a road, subsection
(1)(a) of this section shall not apply.21. The applicants say the
Director has failed to comply with s16(1) in relation to the
obligations to (a) affix the ERPs Notice that created the EPRs, and
(b) serve the ERPs Notice on the applicants.
22. In relation to the affixation of the EPRs Notice, the
Director has provided evidence in the form of photos that it was
affixed on site at various locations of the Lands.
23. The applicants have not made any challenges in relation to
these photos as evidence of affixation of the notices.
24. Mr Pun however says the applicants have said as a matter of
evidence that they have not seen the relevant notices affixed on
the Lands. He refers to paragraph 102(2) to (5) of the original
Form 86 (the contents of the Form 86 have been confirmed by the 1st
applicants affirmation in a general manner) in support of this
contention:
102.The Sixth Ground focuses on the failing of the Respondent(s)
of the statutory duty to comply with certain procedural
requirements under [the Ordinance]:
(2)The Respondent(s) has/have not complied with the requirement
of service and affixation which are both essential in bringing the
Decision to the Applicants attention;
(3)In fact, the Respondent(s) (in particular the Secretary for
Development) did not ever positively provide any evidence of
service or affixation under section 16 despite repeated
demands;
(4)The lack of service of the notice was first raised in a
letter to the Respondent(s) dated 31 July 2013 and the lack of any
notice at all was raised again in a letter to the Secretary for
Development dated 16 June 2014;
(5)Whilst the Respondent(s) alleged on 7 July 2014 that there
had been affixation and service (latter being on 19 July 2012 and
12 October 2012), it had produced no evidence to support the
same;
(footnote omitted)25. In further support, Mr Pun also relies on
a letter dated 16September 2013 sent by the 1st applicant to the
Secretary which stated, inter alia, the following:
60
26. Mr Pun thus submits that in this context of evidence, it is
at least reasonably arguable that the Director had not affixed the
EPRs Notice on the Lands in compliance with s 16(1)(b)(iv).27. With
respect, this is a non-starter.
28. S 16(1)(b)(iv) requires the Director to affix the notices in
a prominent position on or near the land mentioned in the order.
This in my view has been demonstrated clearly to have been done by
the photos (in particular, there is no evidence from the applicants
to say the positions where those notices were affixed cannot be
regarded as prominent ones). The assertion that the applicants have
somehow not seen those notices (even if established) is neither
here nor there as to the question of whether the Director had so
affixed the EPRs Notice in accordance with the statutory provision.
In any event, I do not accept that the above quoted evidence relied
on by Mr Pun amounts to a positive case that the applicants have
not seen those notices as affixed. The quoted paragraphs in the
Form 86 at best only put the burden on the Director to prove that
he had so affixed the EPRs Notice. It falls clearly short of saying
positively that the applicants had not seen the Notice. The part of
the letter relied on has nothing to do with the EPRs Notice. It
refers to the lack of consultation regarding the Project, which was
at a time before the EPRs order was even made and thus the need to
issue and affix the EPRs Notice.
29. For these reasons, the ground relating to the failure to
affix the EPRs Notice in compliance with s 16(1)(b)(iv) is without
merits. No leave should be granted on this basis.
30. For the ground in relation to the failure to serve the EPRs
Notice on the applicants in accordance with s 16(1)(a), Mr Puns
arguments run as follows:
(1)S2(2) of the Ordinance provides expressly that the service
needs to be done either by hand or by registered post.(2)The
Director in the evidence filed now confirms that that was only done
through recorded delivery, which is therefore not either by hand or
by registered post.
(3)The Director had therefore failed to comply with the
statutory requirement on service. This amounts to procedural
irregularity or unfairness, which should vitiate the Decision to
create the EPRs.
31. This ground is not reasonably arguable:
(1)The relevant decision under challenge is to create the EPRs.
One must therefore consider whether the claimed procedural
irregularity or unfairness is pertinent or relevant to that
decision making process. In other words, whether the procedural
irregularity is material to that decision or its process.
(2)Under the Ordinance, there is no right to objection to the
creation of the EPRs. Hence, persons having any estate, right,
share or interest in the land mentioned in the EPRs Notice do not
have any right to make representations or object to the creation of
the EPRs which are considered necessary or incidental to the works
that have been authorized. They may object to the major works
proposed to be carried out in the earlier stages of the statutory
process under ss 10 and 11. However, once that process is completed
and the works have been authorized by the Chief Executive in
Council under s11(2), there is no right to object to the thereafter
creation of the EPRs necessary and incidental to the works. Persons
affected by the EPRs could of course claim for compensation under s
27.
(3)In the premises, the requirement of service under s 15(1)(a)
of the relevant EPRs Notice on persons that have any estate, right,
share or interest in the land mentioned in the EPRs Notice is not
material, pertinent or relevant to the EPRs decision making
process. One can test it this way: assuming that the Director had
complied with the means of service (instead of serving it by
recorded delivery), what different things the applicants would have
been able to do vis--vis the decision to create the EPRs. Mr Pun
rightly accepted that there was probably nothing except perhaps
they could have a full 12-month period provided under s 28 and the
Schedule under Part II to make the claim for compensation, instead
of a shorter time given that the applicants alleged that they only
came to know about the EPRs at a later time. This (ie, the
applicants had had a shorter period to make the claim) even if
correct (which I am not determining), has nothing to do with the
decision to create EPRs, but only in relation to the applicants
claim for compensation. Insofar as that is concerned, even if Mr
Pun is right to say that the shorter period would have prejudiced
the applicants preparation to make the claim (where there are in
fact no such suggestions put forward by the applicants in
evidence), it is pertinent to note that the Lands Tribunal (which
deals with the compensation claims) has ample discretion on wide
bases to extend time under s 28 of the Ordinance.
(4)In the premises, it is clear to me that the claimed
procedural irregularity or unfairness is not material or relevant
to the Decision or its making process. This therefore cannot
constitute an arguable ground to judicially review the Decision.32.
I therefore would also not grant leave on this basis.
C2.Delay and no extension of time
33. The relevant Decision was made in June 2012. From the
applicants own evidence, leaving aside the complaint about the
failure to serve the EPRs Notice in accordance with s 16(1)(a), the
applicants came to know about the creation of EPRs by October 2012
(see the 1stapplicants letter to the Secretary dated 31 July 2013).
The application for leave to apply for judicial review was only
made on 29October 2014. It was thus made seriously out of the
3-month period under O 53 r 4. The applicants thus also seek
extension of time to apply for judicial review. The putative
respondents oppose any extension of time to be granted.
34. Given that I have in the above refused leave on the lack of
reasonably arguable grounds, strictly speaking it is unnecessary
for me to deal with extension of time. However, given that this is
fully argued, for the sake of completeness, I would briefly deal
with this part of the application as well.
35. If necessary, I would have refused to grant any extension of
time for the following reasons.
36. It is common ground to adopt the applicable principles
summarized by G Lam J in Re Thomas Lai [2014] 6 HKC 1 at
paragraph45 on whether to grant extension of time in a judicial
review application:45.What may constitute a good reason for
extending time cannot of course be defined. It seems to me it is in
most cases a multi-faceted question the answer to which depends on
the circumstances of each case. Nor can the factors relevant to the
question be exhaustively set out, although the following matters
are likely to be of significance:
(1)The length of the delay. Obviously the longer the delay, the
more cogent the reason has to be for extending time.
(2)An explanation for the delay. While O53 r4(1) requires a good
reason for extending time, rather than a good excuse for the delay,
it is simply common sense that the presence of a credibly valid
explanation for the delay will strengthen, and conversely the
absence of any acceptable explanation will weaken, the applicants
request for what is after all an indulgence to be granted to him in
the courts discretion. It will be noted that in R v Commissioner
for Local Administration, ex parte Croyden London Borough Council,
supra, Woolf LJ referred to an applicant who has behaved sensibly
and reasonably.
(3)The merits of the substantive application. Again it is common
sense that the merits of the challenge of the administrative
decision is a significant matter to be taken into account. It is
however by no means the sole criterion. As Litton NPJ has said,
where an applicant is many months out of time, leave may be refused
however strong the complaint might otherwise be: Po Fun Chan v
Winnie Cheung (2007) 10 HKCFAR 676 at p 693B-C. Likewise, HartmannJ
said in LawChun Loy v Secretary for Justice, supra, at 13:
In summary, any person who seeks by way of judicial review to
challenge a public law decision is from the outset under a clear
warning: sleep on your rights and, even if your cause is
meritorious, you may find the gates locked against you.Mr James Lee
who appears for the applicant submits that it is sufficient for
present purposes to see whether the applicant has a reasonably
arguable claim which enjoys a realistic prospect of success. But
that is the threshold for applications for leave lodged within
time. Where the applicant is out of time, the court is in my view
entitled, in an appropriate case, to delve more deeply into the
merits. Its function is not just to filter out the unarguable, but
also to see whether indulgence in the form of extension of time
should be granted to the applicant.
(4)Prejudice. The question of prejudice has two sides: the
prejudice to the applicant if time is not extended, and the
prejudice to the respondent and to public administration if a
challenge is allowed to proceed out of time.
(5)Whether the application raises questions of general public
importance, and whether those questions are likely to have to be
resolved by the courts in any event, are also relevant
considerations. I shall return to these aspects at the end.37. In
my view, looking at those factors as set out in Re Thomas Lai in
the circumstances of the present case, it is clearly a case where
Iwould not exercise my discretion to extend time for the following
reasons:(1)The length of delay is any view a substantial one. It is
for almost 2 years (from October 2012 to October 2014) or at the
least 19 months (from March 2013 to October 2014).(2)The
explanation for the delay relied on by Mr Pun is that since March
2013, the applicants had been ascertaining with the Director as to
whether the Director had served the EPRs Notice on them by way of
registered post or by hand in compliance with s 16(1)(a) and s
2(2). That lasted until September 2014 by way of correspondence,
whereby the authority had been shifting its position back and forth
between by hand and by registered post. It is thus, says Mr Pun,
not unreasonable for the applicants to have waited and clarified
with the authority in order to properly consider whether there was
any ground to challenge the Decision on the basis of service as
well. The applicants should therefore not be criticized or
prejudiced for taking this non-confrontational stance. With
respect, this does not amount to good reason or explanation for the
delay. First, it is Mr Puns position that the easements argument
constituted a good ground to challenge the Decision. That had
nothing to do with the service consideration. It cannot be right
that a party, knowing (and in any event is presumed to know the
law) the time limit to bring a judicial review on what he believes
to be a good ground, should be generally excused to wait for a
longer time, until he could ascertain he may also be able to
challenge the decision on another potential ground. This is
particularly so when, as I said above, the original Form 86
contained 9 grounds of judicial review. Second, in the
circumstances of this case, it is clear that although the authority
was changing the position as to by exactly which means it had
served the EPRs Notice, it had maintained all along the position
(rightly or wrongly) that that had been done properly in accordance
with the statutory requirement. That was the same even by September
2014, ie, a month before the leave application was taken out. There
is nothing before this court to say what suddenly had prompted the
applicants by then to think that they then had a case to challenge
the Decision on the basis of service, and thus finally taking out
the leave application on, amongst others, that ground too. In the
premises, I cannot see how and why it can be said that it had been
reasonable for the applicants to have waited for more than one year
to see whether they had a good ground to complain about service. I
therefore do not accept that the applicants have provided good
reasons or explanation for the substantial delay.
(3)The merits of the substantive application: For the same
reasons I have stated above, even if I were wrong to say that the
grounds are not reasonably arguable, their merits are in my view
not so compellingly strong so as to outweigh the very substantial
delay and the lack of good reasons for the delay so as to justify
exercising the discretion to extend time.
(4)Prejudice: The Project has already begun and the delay in
bringing the challenge would certainly have an impact on and caused
delay in the work. That would have an impact on due public
administration. Viewed against this, the prejudice that may be
caused to the applicants is outweighed in the scale of the exercise
of discretion: any such prejudice is caused by the delay itself
coupled with lack of good reasons for the delay. Further, the
applicants are entitled to, and have in fact claimed, for
compensation for the creation of the EPRs. Finally, it is the
applicants own case (see below) that they would take the objections
again in private proceedings.(5)General public importance and that
the questions are likely to have been resolved by the courts: In my
view, the proposed judicial review is mainly to advance the
applicants private interest and thus does not concern principally
any points of great general public importance. In particular, the
easements and service arguments are also facts sensitive pertinent
to the circumstances of this case. This cannot justify the
extension of time.
(6)Finally, Mr Pun says, if the court refuses to hear the
application on merits for the reason of delay, the issues are
likely to come up again and in any event needed to be dealt with by
the court perhaps in a private civil or criminal proceedings
context given that the applicants are likely to contest the EPRs by
way of say an injunction application or obstruction against the
carrying out of the construction of the tunnel. This is a relevant
factor that the court should consider whether to extend time: R
(British Waterways Board) v The First Secretary of State [2006]
EWHC 1019 (Admin) at paragraphs 16-17 per Collins J (as he then
was), citing also Wandsworth LBC v Winder [1985] AC 461. In my
view, when the court take into account this factor in considering
whether to exercise the discretion to extend time, it must still be
looked at together with all the other relevant factors in each
case. Mr Pun is not, I think, saying that this must be considered
as an overwhelming factor. This must be right. In the present case,
given the substantial and serious delay with the lack of any good
reasons, and the relatively weak merits of the grounds, I do not
think the fact that the applicants have indicated that they may
well raise the same issues in their potential application for
injunction or obstruction against the carrying out of the tunnel
construction outweigh these factors against the grant of extension.
In particular, as Mr Shieh submits, it is up to the applicants to
decide whether they do eventually take out such injunction
application in a private civil claim or even obstruct the
construction (which under s 24 of the Ordinance would constitute an
offence liable for imprisonment and a fine), and their rights to do
so would not in any way be prejudiced.38. For all these reasons, I
would also refuse to grant extension of time to the applicants to
apply for judicial review.
D.Costs
39. The putative respondents ask for costs of this
application.
40. The principles governing whether costs should be awarded to
a putative respondent in an unsuccessful leave application are well
settled. The general rule is that an unsuccessful applicant for
leave should not be required to bear costs. The court would only
award costs against such an unsuccessful applicant where there are
unusual or exceptional circumstances to justify doing so. The
discretion is a broad one but the court should exercise that
sparingly. In considering whether there are such good reasons or
unusual circumstances, the court takes into account all the facts
and circumstances that may be relevant to the exercise of that
discretion. See: Leung Kwok Hung v The President of the Legislative
Council (unreported, FACV 1/2014, 5 December 2014, Ma CJ, Ribeiro,
Tang, Fok PJJ and Sir Anthony Mason NPJ) at paragraph 17 per
RibeiroPJ. This court, after having guidance from previous
authorities, sought to set out some of those common but
non-exhaustive factors in TVB v Communications Authority
(unreported, HCAL 3/2013, 22 July 2013) at paragraph 6, and I do
not propose to repeat them here.41. Further, as Ribeiro PJ observed
in Leung Kwok Hung, supra, at paragraph 17(2)-(4), given that leave
applications are by the rules meant to proceed on an ex parte
basis, one of the relevant factors the court should look at in
considering costs is what has led the opposing party to attend the
hearing. This must also be viewed together with the underlying
merits of the application and whether that partys attendance has
been of material benefit to the court, always bearing in mind that
the context is the end result that the court has refused to grant
leave.42. I am of the view that there are the following unusual
reasons or circumstances considered together to justify awarding
costs against the applicants in this case:
(1)One of the reasons the putative respondents are invited to
attend the hearing is because of, as I said in the beginning, the
myriad and relatively confused grounds set out in the original Form
86, which the court believed required the assistance of the
putative respondents to provide a better picture and understanding
of those grounds. This to that extent is caused by the applicants
own making. In this regard, it is pertinent to note that it is only
the day before the hearing that the easements ground (which Mr Pun
now says constitutes the applicants stronger ground) is properly
formulated and relied upon and most of other grounds in the
original Form 86 are either not pursued or substantively
consolidated and reformulated.
(2)Further, given the very substantial delay in making the
application, the need for extension of time, and the apparent lack
of good reasons to explain the delay on the face of the Form 86,
the court also considered it to be necessary to hear from the
putative respondents for the purpose of the leave
application.(3)The putative respondents attendance has been of
material benefit to the court in the areas of evidence and legal
submissions. (4)The application is made to advance the applicants
own private interest.
(5)The relative lack of merits of the application. I further
repeat the observation at subparagraph (1) above.(6)The applicants
effectively had a roll-up substantive hearing of the judicial
review. 43. For these reasons, I would order that costs of this
application be to the putative respondents, to be taxed if not
agreed, with certificate for two counsel.44. Lastly, I thank
counsel for their assistance.
(Thomas Au)
Judge of the Court of First Instance
High CourtMr Hectar Pun and Mr Ernest CY Ng, instructed by Wong
& Co, for the applicantsMr Paul Shieh SC, leading Ms Teresa Wu,
instructed by Department of Justice, for the putative respondents
See paragraphs 59-82 of the draft Amended Form 86.
See paragraphs 96-104 of the draft Amended Form 86.
This is largely taken from the putative respondents skeleton,
which appears to be not in any material controversy.
In support, Mr Pun relies on these authorities: Reilly v Booth
(1980) 44 Ch D 12, 26; Taff Vale Railway Company v Cardiff Railway
Company [1917] 1 Ch 299, 316-318; Grigsby v Melville [1972] 1 WLR
1355, 1364, and Gale on Easement (19th ed, 2012), paragraphs 1-54
to 1-71 and the authorities cited therein.
Exhibit CSL-9.
See Exhibit CCFM-3 at hearing bundle C/504-6.
In relation to this, it must also be noted that under s 15(4) of
the Ordinance, the EPRs would as a matter of law be formally
created and assume force and effect on the expiry of the stated
notice period which is counted from the date of the affixation (not
service) of the relevant notice.
It again must be noted that the 1-year period is to be counted
from the date of the creation of the EPRs, which as mentioned
above, is the date on the expiry of the notice period counting from
the date of the affixation (but not service) of the notice. In the
present case, the EPRs Notice was affixed on 21 June 2012 and the
3-month stated notice period would thus expiry in late October
2012. In this respect, it must be noted that it is the applicants
own position stated in the 1st applicants letter dated 31 July 2013
to the Secretary (see footnote 9 below) that the owners of the
affected lands were informed of the creation of the EPRs in October
2012.
Exhibit CCFM-1 at Hearing Bundle C/486-488 at 487.
See another latter by the applicants to the Secretary dated 10
March 2013 (exhibit CSL-14 at Bundle C/470) where they dealt with
the question of the fact that the EPRs had been created over their
lands.