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HCAL 60/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 60 OF 2011
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BETWEEN
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Building Authority
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Applicant |
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and |
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Appeal Tribunal (Buildings)
China Field Limited |
Respondent
Interested Party |
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Before: Hon Lam J in Court
Dates of Hearing: 17 and 18 July 2012
Date of Judgment : 19 November 2012
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JUDGMENT
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1. This matter has a chequered history. China Field [“CF”] submitted a set of building plans on 5 September 2001 to the Building Authority [“BA”]. The plans were for the construction of two 39-storey buildings at Nos 11-12 Wang Fung Terrace [“the Site”]. The BA disapproved the plans on 2 November 2001 under sections 16(1)(d), (g) and (h) of the Buildings Ordinance [“the BO”].
2. The relevant background relating to the matter have been fully set out in the judgments in the previous round of judicial review which culminated in a decision by the Court of Final Appeal: see China Field v Appeal Tribunal (Buildings) [2008] 5 HKC 163; (2009) 12 HKCFAR 342.
3. I shall not repeat what had been said in these judgments. It suffices for me to explain briefly how the matter comes back to the court again by way of a second application for judicial review. In the judgment of the Court of Final Appeal, there was some references to the disapproval of the plans under s.16(1)(g). However, as that ground was not argued at the courts below (and CF took an objection that the BA had not sought leave to apply for judicial review in respect of the BAT’s reversal in 2006 of the BA’s decision on s.16(1)(g) in the first judicial review), the Court of Final Appeal did not express any conclusion on that ground. Having reached the conclusion that the BA was not entitled to disapprove the plans under s.16(1)(h), the Court of Final Appeal remitted the matter back to the BAT.
4. After the decision of the Court of Final Appeal, the matter was remitted back to the Appeal Tribunal (Buildings) [“the BAT”]. There were disagreements between the parties as to the scope of such remission. After hearing submissions, the BAT ruled on 4 August 2010 that the Court of Final Appeal had only remitted the s.16(1)(h) issue to it. However, in view of the history of the matter, the BAT would also hear submissions and “indicate” its conclusions on s.16(1)(g) had the issue been remitted.
5. In September 2010, the BAT heard substantive arguments from the parties. On 29 April 2011, the BAT allowed the appeal of CF against the BA’s reliance on s.16(1)(h). As regards s.16(1)(g), the BAT maintained its view as expressed in its 2006 decision, viz. that the BAT was not entitled to rely on s.16(1)(g) to disapprove the plans.
6. It is in respect of the 2010 and 2011 decisions of the BAT that the BA applied for judicial review in these proceedings. No doubt out of abundance of caution, the BA also seeks to challenge BAT 2006 decision on s.16(1)(g).
The scope of the remission by the Court of Final Appeal
7. The first ground of the BA’s challenge is that the BAT erred in law in 2010 in holding that the question of s.16(1)(g) had not been remitted to it. The order of the Court of Final Appeal only stated that the case be remitted to the BAT without setting any limits. Mr Mok (appearing on behalf of the BA together with Mr Stock) further referred to paras 2 to 7 of the judgment of Bokhary PJ and para 38 of the judgment of Lord Millett NPJ to support his contention.
8. As shown in these paragraphs, the Court of Final Appeal did envisage that the issue of s.16(1)(g) would be canvassed before the BAT. Lord Millett said,
“… As no other issue arises on China Field’s appeal, I would allow its appeal and remit its case to the Tribunal for a re-hearing. It will be for the Authority to consider whether it wishes to invite the Tribunal to reconsider its decision under s.16(1)(g) and for the Tribunal to consider whether to do so. Should it become necessary, it will be open to the Authority at an appropriate stage to apply for leave to bring proceedings for judicial review. I would express no view on the approach the court should take to such an application, save to say that, in the light of the way in which the proceedings have been conducted hitherto, it would be strange if the application were dismissed merely on the ground that it was out of time.”
9. As Mr Mok pointed out, these observations were made against the background that the BA had, in the evidence filed in the first judicial review and the Respondent’s Notice filed in the appeal and the Written Case placed before the Court of Final Appeal, raised the issue with regard to s.16(1)(g). On the other hand, CF had contended that it would be impermissible for the BA to re-open the question of s.16(1)(g) should the matter be remitted to the BAT.
10. Before this court, Mr Chan SC (who appeared on behalf of CF together with Mr Ismail) basically repeated the contention that since the BA did not apply for judicial review in respect of the BAT’s 2006 decision on s.16(1)(g), it was not an issue before the courts in the first judicial review. As such, the Court of Final Appeal could not have remitted the issue of s.16(1)(g) to the BAT.
11. Mr Chan further submitted the tenor of the judgment of Lord Millett did not suggest that s.16(1)(g) was an issue remitted by the Court of Final Appeal. Rather, in the paragraph quoted above, His Lordship only referred to the possibility of the issue being raised by the BA.
12. In my judgment, Mr Chan is correct in his analysis that the Court of Final Appeal did not remit the issue of s.16(1)(g) to the BAT as it was not an issue raised in CF’s judicial review which culminated in the appeal to that court. But that does not mean that the BAT had no jurisdiction to entertain an application by the BA to re-open that issue. Lord Millett was clearly of the view that once the case was remitted to the BAT, the BA (if it deems fit) could apply to re-open that issue. Instead of treating it as an issue remitted by the Court of Final Appeal, the correct approach is to treat that the proceedings before the BAT were at large once the Court of Final Appeal allowed the appeal, thereby implicitly quashing the decision of the BAT based on s.16(1)(h).
13. It is apparent that the Court of Final Appeal did not deem it appropriate to direct (as opposed to leave it open for BAT’s consideration) the BAT to consider the s.16(1)(g) issue as it was not properly within the scope of the appeal before it. To say that the Court of Final Appeal had remitted that issue to the BAT would have tied the hands of the BAT, which the Court of Final Appeal manifestly did not do. At the same time, it is also apparent that the Court of Final Appeal did not pre-empt the BAT from considering this issue if the BA were to make an application for re-opening this issue and the BAT were minded to entertain the application. Thus, though it is correct that the issue of s.16(1)(g) was not specifically remitted to the BAT, insofar as the BAT ruled in its 2010 decision that the Court of Final Appeal had only remitted the s.16(1)(h) issue to them, it is not correct as a matter of legal analysis.
14. Lord Millett also referred to the possibility of the BA applying for judicial review in respect of BAT’s decision on s.16(1)(g). That could be in respect of the 2006 BAT’s decision or alternatively, if the BAT were minded to re-open the issue at the remitted hearing, the decision of the BAT at that hearing.
15. Apart from ruling that the only issue remitted was s.16(1)(h), the BAT in their 2010 decision also accepted the BA’s invitation to hear further submissions and state their views under s.16(1)(g) in order to avoid a further remission. In effect, the BAT acceded to the request to the re-opening of s.16(1)(g) and entertained further submissions on that issue. The 2011 decision of the BAT is, in substance, a further decision on s.16(1)(g) after due consideration of the parties’ further submissions.
16. Given that the 2011 decision of the BAT was to maintain the result under the 2006 decision on s.16(1)(g) and the Form 86 in the present case referred to both decisions as the subject decisions in respect of which the BA seeks to challenge by way of judicial review, and bearing in mind Lord Millett’s observations, it does not matter very much whether the BAT had correctly perceived its power to re-open the decision on s.16(1)(g). Whatever further submissions the parties wished to advance, they had been advanced and taken into account in the 2011 decision. In my view, the crucial issue is whether the BAT was correct in the 2011 decision on s.16(1)(g).
17. In these circumstances, the 2006 decision has been superseded by the 2011 decision. As analysed above, the BAT did have jurisdiction to re-open the s.16(1)(g) issue and it had, in effect, re-opened the same when it gave the 2011 decision. Thus, in line with the principle set out by Litton NPJ in Financial Secretary v Wong (2003) 6 HKCFAR 476 at para 93, the 2006 decision is no longer relevant and it is not necessary for the BA to seek to have the 2006 decision set aside. We should concentrate on the 2011 decision.
Procedural challenges: adequacy of reasons
18. Before I turn to the substantive issue as to the correctness of the BAT’s construction of s.16(1)(g), I shall first deal with Mr Mok’s grounds 3 and 4. Under ground 3, Mr Mok challenges the decision of BAT on the basis that the arguments of the BA on s.16(1)(g) were ignored by the BAT. Under ground 4, it is contended that the BAT failed to give adequate and rational reasons for its decision. These two grounds are two sides of the same coin....
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